BETWEEN MARLBOROUGH DISTRICT COUNCIL Appellant AND G I T EVANS Respondent
[2023] NZHC 3849
•21 December 2023
IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WAIHARAKEKE ROHE
CIV-2023-406-10
[2023] NZHC 3849
UNDER the Biosecurity Act 1993 IN THE MATTER
of an application under section 76 of the Act
BETWEEN
MARLBOROUGH DISTRICT COUNCIL
Appellant
AND
G I T EVANS
Respondent
Hearing: 30 August 2023 Appearances:
P A C Maw and M A Mehlhopt for Appellant
Q A M Davies and J S Marshall for Respondent
Judgment:
21 December 2023
JUDGMENT OF McQUEEN J
Table of Contents
Para Nos
Introduction [1]
The BSA [8]
Regional pest management plans [12]
Implementation of regional pest management plans [14]
Applications to the Environment Court [15]
The 2015 NPD [24]
The requirements for a plan’s objectives [28]
Requirements for programme descriptions [32]
Requirements for benefit and cost analysis [34]
Factual background [39]
The early years [40]
The 2000s onwards [42]
MARLBOROUGH DISTRICT COUNCIL v G I T EVANS [2023] NZHC 3849 [21 December 2023]
Commencement of proceedings in the Environment Court [54]
The Environment Court decision [58]
The issues [59]
Jurisdictional matters [60]
Substantive matters [66]
Relief [69]
Approach to appeal [70]
Grounds of the Council’s appeal [74]
The nature of the Environment Court’s findings and this Court’s
jurisdiction [76]
First alleged error of law [84]
The Council’s submissions [85]
Mr Evans’ submissions [87]
Discussion [89]
Conclusion [92]
Second alleged error of law [93]
The Council’s submissions [94]
Mr Evans’ submissions [100]
Discussion [105]
Conclusion [115]
Third alleged error of law [116]
The Council’s submissions [117]
Mr Evans’ submissions [119]
Discussion and conclusion [120]
Fifth alleged error of law [121]
The Council’s submissions [122]
Mr Evans’ submissions [126]
Is a site-led programme where containment or reduction remain as the
identified intermediate objective permitted under the 2015 NPD? [129]
Risk of removal as opposed to protection of values [142]
Conclusion [145]
Sixth alleged error of law [146]
The Council’s submissions [147]
Mr Evans’ submissions [150]
Discussion [152]
Conclusion [156]
Seventh alleged error of law [157]
The Council’s submissions [158]
Mr Evans’ submissions [161]
Discussion and conclusion [163]
Fourth alleged error (as to relief) [166]
The Council’s submissions [167]
Mr Evans’ submissions [170]
Discussion [173]
Conclusion [176]
Summary of conclusions [177]
Result [179]
Costs [181]
Introduction
[1] The Marlborough District Council (the Council) appeals against an interim decision of the Environment Court dated 17 March 2023 regarding an application by Mr Geoffrey Evans under s 76 of the Biosecurity Act 1993 (the BSA).1
[2] Mr Evan’s application under s 76 sought amendments to the Marlborough Regional Pest Management Plan 2018 (the 2018 RPMP), in respect of pest conifers (contorta pine/wilding pines) originally planted by the Marlborough Catchment Board as early as 1959, on land adjacent to ‘Stronvar Station’, a family-owned farm for which Mr Evans is a trustee (Stronvar).
[3] Pest conifers create issues for farmland and particularly for areas rich in native biodiversity. They spread aggressively, reduce available grazing land and limit future land use. They grow densely, and are therefore destructive for native plants, and the natural habitat of native animals. Their seeds are quickly spread by the wind, resulting in further spread. As Stronvar is subject to the prevailing north-westerly Marlborough wind, it has been subjected to an infestation of pest conifers, an issue which Mr Evans and his family have sought to address since plantings occurred.
[4] Before the Environment Court, Mr Evans sought the reinstatement of a containment area for pest conifers within the 2018 RPMP, on a basis specific to Stronvar. The Environment Court granted the relief sought by Mr Evans and directed amendments to the 2018 RPMP to enable a ‘site-led’ programme at Stronvar, and to address concerns regarding erosion risk and the maintenance of indigenous biodiversity values. It directed the parties to draft wording to be inserted into the existing framework for pest conifer species in the 2018 RPMP, where containment or reduction remain as the identified objective.
1 Evans v Marlborough District Council [2023] NZEnvC 48 [Decision under appeal].
[5] The Council appeals on the basis that the Environment Court made errors of law which materially affected its findings. Broadly, the Council says that the Environment Court lacked jurisdiction to direct the inclusion of a site-led programme in the 2018 RPMP, and that it misapplied the BSA and the National Policy Direction for Pest Management 2015 (the 2015 NPD). It advances seven errors of law as against the Environment Court’s decision. The Council says that this is a test case of the jurisdictional issues that arise on an application to the Environment Court under the BSA.
[6] Mr Evans opposes the Council’s appeal and says that the Environment Court made no errors of law. He submits that a person in his position, on the law applied correctly, can obtain the relief granted by the Environment Court. He also advances what is effectively a cross-appeal on a single point, saying that the Environment Court erred in not finding that the Council is an ‘exacerbator’ under the 2015 NPD.2
[7] For the reasons below, I consider that the both the Council’s appeal and Mr Evans’ cross appeal should be dismissed.
The BSA
[8] I consider it helpful to first set out the legislative and regulatory regime for pest management. I first address the BSA, then discuss the 2015 NPD.
[9] The Council has responsibilities and powers under the BSA for pest management as a regional council and a territorial authority.3 Part 5 of the BSA addresses pest management, and its purpose is to provide for the eradication or effective management of harmful organisms that are present in New Zealand by providing for:4
(a)the development of effective and efficient instruments and measures that prevent, reduce, or eliminate the adverse effects of harmful
2 Section 305 of the Resource Management Act 1991 permits additional appeals on questions of law.
3 Biosecurity Act 1993, ss 12B, 13 and 14.
4 Section 54.
organisms on economic wellbeing, the environment, human health, enjoyment of the natural environment, and the relationship between Māori, their culture, and their traditions and their ancestral lands, waters, sites, wāhi tapu, and taonga; and
(b)the appropriate distribution of costs associated with the instruments and measures.
[10] Section 56 of the BSA requires the responsible Minister to make a national policy direction, the purpose of which is to ensure “that activities under [pt 5] provide the best use of available resources for New Zealand’s best interests and align with one another, when necessary, to contribute to the achievement of the purpose of [pt 5].5
[11] A national policy direction must contain directions on the setting of good neighbour rules in regional pest management plans, and on the time within which the Minister or council must make a determination under s 100E(3).6 A national policy direction may also include directions on a number of other matters, and the Minister must also have regard to certain matters before including a direction in a national policy direction.7 The present national policy direction is the 2015 NPD.
Regional pest management plans
[12] Sections 69 to 78 of the BSA address the development and adoption of regional pest management plans. Such plans have a somewhat complicated relationship with other sources of law. Section 69 provides that a rule contained in a regional pest management plan prevails over a bylaw of a local authority to the extent that it is inconsistent with that bylaw, but that a rule contained in a regional pest management plan does not prevail over:
5 Biosecurity Act 1993, s 56(2).
6 Sections 56(3) and (4). A determination under s 100E(3) is a determination by the Minister or a council as to whether a regional pest management plan is inconsistent with a national policy direction, following the approval, amendment, or revocation and replacement of a national policy direction. Clause 9(1) of the 2015 NPD provides that this determination must occur within 18 months of the Governor-General approving the making, revocation, or replacement of the national policy direction.
7 Sections 56(5), 56(6), and 56(7).
(a)a regulation made under the BSA or any other Act that is inconsistent with a rule;
(b)a rule in a national pest management plan that is inconsistent with a rule; or
(c)a rule in a national pathway management plan is inconsistent with a rule.
[13] Sections 70 to 75 set out six steps for the proposal, development, and adoption of a regional pest management plan. The steps are:
(a)under s 70, a plan is initiated by a proposal made by a council, or a person who submits a proposal to a council (the first step);
(b)under s 71, if satisfied that s 70 has been complied with, the Council must consider a range of matters, including that (the second step);
(i)the proposal is not inconsistent with the national policy direction, any other pest management plan on the same organism, any pathway management plan, a plan prepared under the Natural and Built Environment Act 2023, or any regulations;8
(ii)any process requirements for a plan, contained in the national policy direction, have been complied with; and
(iii)the proposal has merit as a means of eradicating or effectively managing the subject of the proposal, which is capable of causing adverse effects regionally, and that the benefits of the plan would outweigh the costs.
8 I note that the Natural and Built Environment Act 2023 commenced after the filing of Mr Evans’ application, so that any amendments made by that Act do not apply in the present proceeding. Further, at the time of writing, that Act is very soon to be repealed. See Resource Management (Natural and Built Environment and Spatial Planning Repeal and Interim Fast-track Consenting) Bill, cl 5(1).
(c)under s 72, if the council is satisfied of the matters in s 71, the council consults with Ministers, local authorities, tangata whenua, and other persons who may otherwise be affected (the third step);
(d)under s 73, if the council is satisfied as required by s 72(1), and that all issues raised in consultation have been considered, the council may approve the preparation of a plan, and decides which body is to be the management agency, being either a department, council, territorial authority, or body corporate (the fourth step);9
(e)under s 74, the council considers whether it is satisfied that the matters listed in s 73 have been complied with (in a manner similar to the second step), including that (the fifth step):
(i)the plan is not inconsistent with the national policy direction, any other pest management plan, any pathway management plan, a plan prepared under the Natural and Built Environment Act 2023, or any regulations; and
(ii)the benefits of the plan outweighs the costs, there is likely to be adequate funding for the implementation of the plan and each rule will assist in achieving the plan’s objectives without trespassing unduly on the rights of individuals.
(f)under s 75, when the council is satisfied of the matters in s 74, the council prepares a written report on the plan, setting it out its decision on the plan, of which it must give public notice (the sixth step).
Implementation of regional pest management plans
[14] Regional pest management plans are implemented by the management agency specified in the plan, using only the powers in pt 6 of the BSA, specified in the plan
9 I note that s 73(6) provides also that a rule in a regional pest management plan may apply generally or to different classes or descriptions of persons, places, goods, or other things, or apply throughout a region or in specified parts of a region with another rule on the same subject matter applying to another specified part of the region.
as those to be used to implement the plan.10 Operational plans for the implementation of a regional pest management plan must be prepared by a management agency within three months of a plan’s commencement date.11 Operational plans must be reviewed annually.12
Applications to the Environment Court
[15] Section 76 of the BSA provides a mechanism by which a person may make an application to the Environment Court in respect of a regional pest management plan that results from a decision made by a council at the sixth step, under s 75. The following matters may be the subject of an application to the Environment Court:13
(a)any aspect of the plan;
(b)whether the plan is inconsistent with the national policy direction; and
(c)whether the process requirements for a plan in the national policy direction, if there were any, were complied with.
[16] An application under s 76 must be made within 15 working days after the date of the public notice given by a council under s 75.14 It may only be made by a person who:15
(a)made a submission on a proposal which was publicly notified and in respect of which submissions were sought; or
(b)participated in consultation during the preparation of the proposal and whose views were provided or recorded in writing; or
(c)participated in consultation on the proposal and whose views were provided or recorded in writing; or
10 Biosecurity Act 1993, ss 100 and 100A.
11 Section 100B(1)(a).
12 Section 100B(1)(b).
13 Section 76(2).
14 Section 76(5).
15 Sections 76(3) and 76(4).
(d)is likely to be affected by the plan and did not participate in consultation only because the person was not given an opportunity to participate.
[17] The Environment Court must hold a public hearing on the application, and also must dismiss the application or direct the council to modify the plan, delete a provision from the plan, or insert a provision in the plan.16
[18] Before 24 August 2023, an application under s 76 was made under s 291 of the Resource Management Act 1991 and regulations made under that Act.17 As Mr Evans’ application under s 76 was made before that date, it was made under s 291 of the Resource Management Act, which provides:
291 Other proceedings before court
(1)Except as otherwise provided in this Act, or any other Act, or regulation, every originating application to the Environment Court shall be made by notice of motion. The notice of motion shall specify the order sought, the grounds upon which the application is made, and the persons upon whom the notice is to be served. Every notice of motion shall be supported by an affidavit as to the matters giving rise to the application.
(2)The applicant shall as soon as reasonably practicable after lodging a notice of motion with the Registrar, serve copies of the notice and affidavit upon such persons, if any, as are parties to the application and advise the Registrar accordingly.
(3)An Environment Judge may at any time direct the applicant to serve a copy of the notice of motion and affidavit upon any other person.
(4)Every person upon whom a notice of motion has been served shall, if he or she desires to be heard on the application, within 15 working days after the date of service upon him or her, give written notice in the prescribed form to the Registrar and the applicant of his or her desire to be heard and of the matters he or she wishes to advance.
[19] However, following the enactment of the Natural and Built Environment Act 2023, s 76(6) of the BSA was amended to read “[an] application [under s 76] is made under cl 51 of Sch 13 of the Natural and Built Environment Act 2023 and regulations made under that Act.”. Clause 51 provides:
16 Biosecurity Act 1993, ss 76(7) and 76(8).
17 Section 76(6) (as at July 2023).
51 Originating applications
(1)Every originating application to the Environment Court must be made by notice of motion, except as otherwise provided in this Act or any other legislation.
(2)The notice of motion—
(a)must specify the order sought, the grounds on which the application is made, and the persons the notice is to be served on; and
(b)must be supported by an affidavit about the matters that give rise to the application.
(3)The applicant must, as soon as is reasonably practicable after lodging a notice of motion with the Registrar, serve copies of the notice and affidavit on any persons that are parties to the application and advise the Registrar accordingly.
(4)An Environment Judge may at any time direct the applicant to serve a copy of the notice of motion and affidavit on any other person.
(5)If a person who has been served a notice of motion wishes to be heard on the application, they must give written notice to the Registrar and the applicant of their wish to be heard and the matters they wish to raise.
(6)A written notice for the purpose of subclause (5) must be—
(a)given in the form approved by the Registrar; and
(b)given within 15 working days after the date of service of the relevant notice of motion.
[20] Clause 76 of sch 13 also provides that where a person has a right to appeal to the Environment Court against a decision that is made under the Natural and Built Environment Act or any other legislation by a local authority, consent authority, or any other person, prior to the exercise of that right and the making of a decision by the Environment Court:
(a)the person cannot apply for review under the Judicial Review Procedure Act 2016; and
(b)the High Court cannot hear any proceedings that seek a declaration, an injunction, or a writ of or in the nature of mandamus, prohibition, or certiorari.
[21] A party to such a proceeding in the Environment Court may appeal on a question of law to the High Court in accordance with the High Court Rules 2016 “against any decision, report, or recommendation that the Environment Court makes in the proceeding”.18
[22] The final step in the promulgation of a regional pest management plan is the making of a plan (the seventh step).19 A plan is made by a council fixing its seal to the plan.20 If no person makes an application under s 76 of the BSA, a council must make the plan.21 If a person makes an application under s 76, a council must decide whether the matter dealt with in the application is severable from the rest of the plan.22 If the matter is severable, a council must make the plan without that matter in it, and following a decision by the Environment Court either:23
(a)make the part of the plan that deals with the matter if the Environment Court dismisses the application under s 76; or
(b)comply with any direction made by the Environment Court, before making the part of the plan that deals with the matter.
[23] If the matter is not severable from the rest of the plan and the Environment Court dismisses the application under s 76, a council must make the plan.24 If the matter is not severable, and the Environment Court makes directions, a council must comply with any directions before making the plan.25 A council must give public notice of the making of a plan and its commencement date or dates.26
The 2015 NPD
[24]The preamble to the 2015 NPD describes pt 5 of the BSA as supporting:
18 Natural and Built Environment Act 2023, sch 13, cl 79(1). Compare Resource Management Act 1991, s 299(1).
19 Biosecurity Act 1993, s 77.
20 Section 77(1).
21 Section 77(2).
22 Section 77(3).
23 Section 77(4)(a).
24 Section 77(4)(b).
25 Section 77(4)(c).
26 Section 77(5).
…the eradication or effective management of harmful organisms in New Zealand by providing for the development of national or regional pest and pathway management plans, and small-scale management programmes. Part 5 also provides for the appropriate distribution of costs associated with these plans and programmes. The national and regional plan processes provide for consultation with communities on the control of established pests that are of concern to them. A regional council may declare a small-scale management programme in the region if a pest could be eradicated or controlled effectively with small-scale measures within three years of the measures starting.
[25] The 2015 NPD fulfils the purpose contained in s 56(2) of the BSA by clarifying requirements for regulatory instruments created under pt 5 of the BSA, thereby ensuring consistent application of these requirements nationally and between regions.27 It applies only to pest management activities that occur under the BSA, including proposals for regional pest management plans, and the plans themselves. Persons developing and making such plans must comply with the 2015 NPD as well as the BSA. The 2015 NPD records:
An application can be made to the Environment Court if a party considers that a regional pest…management plan is inconsistent with the national policy direction, or if a process requirement for a proposed plan did not comply with the national policy direction.
If the Environment Court considers that the application has merit, it can direct the regional council to change the plan.
[26] An important definition in the 2015 NPD is the definition of ‘subject’. The 2015 NPD defines ‘subject’ in relation to a proposal for a pest management plan, as “the organism or organisms proposed to be specified as a pest or pests under the plan”.28 In relation to a pest management plan, ‘subject’ is defined as “the pest to which the plan applies”.29
[27] The purpose of the 2015 NPD is to ensure that activities under pt 5 of the BSA provide the best use of available resources for New Zealand's best interests and align with one another, when necessary, to contribute to the achievement of pt 5 of the BSA.30
27 Decision under appeal, above n 1, at [42].
28 2015 NPD, cl 3(1)(a).
29 Clause 3(1)(b).
30 Further guidance has also been provided by the Ministry of Primary Industries – see <Meeting the requirements of the National Policy Direction for Pest Management 2015 (mpi.govt.nz)>.
The requirements for a plan’s objectives
[28] For each subject in a proposal for a pest management plan, or in a pest management plan, the objectives in the plan must state the particular adverse effect or effects of the pest on the matters listed in s 54(a) of the BSA that the plan addresses, and state the pest management intermediate outcomes that the plan is seeking to achieve.31 The available intermediate outcomes are:
(i)“exclusion” which means to prevent the establishment of the subject that is present in New Zealand but not yet established in an area;
(ii)“eradication” which means to reduce the infestation level of the subject to zero levels in an area in the short to medium term;
(iii)“progressive containment” which means to contain or reduce the geographic distribution of the subject to an area over time;
(iv)“sustained control” which means to provide for ongoing control of the subject to reduce its impacts and its spread to other properties;
(v)“protecting values in places” which means that the subject that is capable of causing damage to a place is excluded or eradicated from that place, or is contained, reduced or controlled within the place to an extent that protects the values of that place.
[29] For the first four of those outcomes (all except “protecting values in places”), the objectives in the plan must specify:32
(a)the geographical extent to which the outcome applies; and
(b)the extent to which the outcome will be achieved (if applicable); and
(c)the period within which the outcome is to be achieved.
[30] For the fifth stated outcome (if applicable), “protecting values in places”, the objectives of the plan must include:33
(i)one of the following:
(A)the geographic area to which the outcome applies (if practicable); or
31 2015 NPD, cl 4(1).
32 Clause 4(1)(c).
33 Clause 4(1)(d).
(B)a description of a place to which the outcome applies;34 or
(C)the criteria for defining the place to which the outcome applies;35 and
(ii)the extent to which the outcome will be achieved (if applicable); and
(iii)the period within which the outcome is expected to be achieved.
[31] If the period within which the pest management intermediate outcome is expected to be achieved is more than ten years, the objectives must also state what is intended to be achieved in the first ten years of the plan, or during the current term of the plan prior to the next time it is to be reviewed.36
Requirements for programme descriptions
[32] For each subject in a pest management plan, there must be one or more ‘programmes’, of which there are the following kinds:37
(a)“Exclusion Programme” (if applicable) in which the intermediate outcome for the programme is to prevent the establishment of the subject, or an organism being spread by the subject, that is present in New Zealand but not yet established in an area:
(b)“Eradication Programme” (if applicable) in which the intermediate outcome for the programme is to reduce the infestation level of the subject, or an organism being spread by the subject, to zero levels in an area in the short to medium term:
(c)“Progressive Containment Programme” (if applicable) in which the intermediate outcome for the programme is to contain or reduce the geographic distribution of the subject, or an organism being spread by the subject, to an area over time:
(d)“Sustained Control Programme” (if applicable) in which the intermediate outcome for the programme is to provide for ongoing control of the subject, or an organism being spread by the subject, to reduce its impacts on values and spread to other properties:
(e)“Site-led Pest Programme” (if applicable) in which the intermediate outcome for the programme is that the subject, or an organism being spread by the subject, that is capable of causing damage to a place is excluded or eradicated from that place, or is contained, reduced, or
34 This description must give sufficient certainty in the view of the regional council to land owners and occupiers so that they are aware that the outcome applies to them.
35 The criteria must give sufficient certainty in the view of the regional council to land owners and occupiers so that they are aware that the outcome applies to them.
36 2015 NPD, cl 4(1)(f).
37 Clause 5(1).
controlled within the place to an extent that protects the values of that place:
(f)….
[33] The programme or programmes selected for a subject in a plan must also be consistent with the pest management intermediate outcome stated for the subject in the plan under cl 4.38
Requirements for benefit and cost analysis
[34] The 2015 NPD makes detailed directions about the analysis of costs and benefits required in relation to proposals for pest management plans. When determining the appropriate level of analysis of the benefits and costs of a plan for each subject for the purposes of a proposal for a pest management plan, a proposer must consider:39
(a)the level of uncertainty of the impacts of the subject, or an organism being spread by the subject, and the effectiveness of measures; and
(b)the likely significance of the subject, or an organism being spread by the subject, or of the proposed measures, in terms of stakeholder interest and contention, and total costs of the proposed plan; and
(c)the likely costs of the programme relative to the likely benefits; and
(d)the level of certainty and the quality of the available data.
[35] Then, in a proposal for a pest management plan, an analysis of the benefits and costs of the plan for each subject must:40
(a)identify, and quantify (if practicable), the impacts of the proposed subject or an organism being spread by the subject; and
(b)identify two or more options for responding to the subject or an organism being spread by the subject (one option must be either taking no action or taking the actions that would be expected in the absence of a plan); and
(c)identify, and quantify (if practicable), the benefits of each option; and
(d)identify, and quantify (if practicable), the costs of each option; and
38 2015 NPD, cl 5(3).
39 Clause 6(1).
40 Clause 6(2).
(e)state the assumptions (if any) on which the impacts, benefits and costs are based; and
(f)be at an appropriate level of detail as determined in accordance with sub clause (1); and
(g)take into account any risks that each option will not achieve its objective; and
(h)identify any realistic mitigation options for the risks identified sub clause 2(g); and
(i)adjust the benefits and costs for each option as appropriate to take account of sub clause 2(g) and (h); and
(j)clearly identify which option is preferred.
[36] When taking into account any risks that each option will not achieve its objective under subcl 2(g), a proposer must consider:41
(a)the technical and operational risks of the option; and
(b)the extent to which the option will be implemented and complied with; and
(c)the risk that compliance with other legislation will adversely affect implementation of the option; and
(d)the risk that public or political concerns will adversely affect implementation of the option; and
(e)any other material risk.
[37] In addition, when taking into account any risks that each option will not achieve its objective under subcl 2(g), a proposer must:42
(a)for analyses where the benefits are fully quantified, either:
(i)estimate the residual risks as a probability of success and calculate the expected benefits of the option by multiplying the benefits by the probability of success; or
(ii)state the residual risks to the programme and calculate what the probability of success would need to be to make the expected benefits equal the costs; and
(b)for all other analyses (where the benefits are not fully quantified):
41 2015 NPD, cl 6(3).
42 Clause 6(4).
(i)state the residual risks to the programme and, where practicable, give an indication of likelihood and impact; and
(ii)specify which of the benefits are most likely to be affected if the risk eventuated.
[38] There is a requirement for a proposer of a pest management plan to document cost and benefit analyses and make them publicly available with the proposal for a pest management plan.43
Factual background
[39] The factual background of the issues was largely uncontested by the parties. I set out the relevant background below.
The early years
[40] Stronvar has been in the ownership of the Evans family since 1944. Stronvar is located in the head waters of the Waihopai and is immediately south of an area of land comprising 370 ha within the Wye Catchment that has been planted out in a range of pest conifer species. Plantings had commenced in 1959 and continued through to the mid-1980s and were carried out by the (former) Marlborough Catchment Board (‘the Board’) for erosion control. Plantings occurred on high altitude land exposed to wind. A large area of adjacent and/or nearby land has been affected by a spread of pest conifers, the upper ridges of Stronvar being one of the greatly affected areas, being closest to the seed source. These areas are fragile mountain lands and are prone to erosion.
[41] Mr Evans’ father objected to the planting of pest conifers, and was supported by the then Marlborough District Noxious Plants Authority. Both the Board and the New Zealand Forest Service made assurances in response that any spread of pest conifers would be contained. In accordance with that assurance, removals occurred throughout the 1980s. An agreement was entered into with the Board by Mr Evans’ family trust that involved the retirement from grazing of 600 ha of the higher slopes of Stronvar to minimise and repair the erosion and sediment discharge as well as
43 2015 NPD, cl 6(5).
improve biodiversity (the Stronvar Retirement Area). However, it is common ground that since the 1980s, little has been done to address the spread of pest conifers, and that the restructuring of local government organisations in the region has inhibited any responses. The responsibilities of the Board were transferred to the Nelson- Marlborough Regional Council, and eventually to the Council. Mr Evans has repeatedly sought to hold the Council and other regulatory bodies accountable for addressing the issues arising from pest conifer infestation.
The 2000s onwards
[42] In the early 2000s, following submissions from the Evans family and others, a new 8000 ha containment zone was instituted, including land owned by the Department of Conservation, and part of Stronvar (the containment zone). The containment zone had been recommended by a report commissioned by the Council, written by Mr Nick Ledgard, who considered that it was important to control the spread of pine conifers in the area. Mr Evans maintains, and it did not seem to be substantively challenged by the Council, that many of the other recommendations made by Mr Ledgard were never actioned by the Council.
[43] The containment zone was continued in 2007 through the Regional Pest Management Strategy for Marlborough 2007, and rolled over in 2012 to the Regional Pest Management Strategy for Marlborough 2012. Following reform to the BSA in 2012, the regime for regional pest management was changed, requiring local authorities to develop regional pest management plans, in accordance with the 2015 NPD, as opposed to regional pest management strategies. The difference between a plan and a strategy appears to me to be semantic.
[44] In 2016, the Council released a discussion document on a proposed regional pest management plan, following the promulgation of the 2015 NPD. While there were initial plans for the plan to cover pest conifers, they were excluded from the final version, which became operative on 1 October 2018. From this date, regional regulation of pest conifers under the BSA (including the containment zone) ceased. Mr Evans opposed this change at the time.
[45] The Council then initiated a review of the 2018 RPMP in 2019, which specifically addressed pest conifers. This followed the creation of the National Wilding Conifer Management Strategy 2015-2030, which launched in 2014. The Council proposed to undertake a review of the 2018 RPMP and amend it to incorporate an additional programme. The review and subsequent proposal adopted a high-level and regional-focused approach, stating that:
In Marlborough, it is recognised the first up task of managing pest conifers is one best carried out through large scale collaborative programmes. These collaborative programmes require an overarching clear regional objective and centralised focus. A programme within a Plan can provide for this along with regulatory backstops to ensure investment that goes into management can be protected from future inaction.
In the absence of cohesive and collaborative management, the spread and further establishment of pest conifers over time presents the greatest transformational change to Marlborough’s landscapes that are vulnerable to pest conifer invasion. The impact of pest conifers left unmanaged (a no RPMP scenario) cuts across all values from environmental, cultural, landscapes, water quantity and economic production.
[46] The Council proposed to amend the 2018 RPMP by incorporating a new region-wide ‘progressive containment programme for pest conifers’, which largely indicated that responsibility for the management and removal of pest conifers would fall on landowners, following control measures being taken by the Council. The objective of the progressive containment programme for pest conifers was described as to:44
…progressively contain pest confers through containing and reducing, where feasible, the geographic distribution of pest conifers within the Marlborough region to reduce adverse effects on the environment, enjoyment of the natural environment and economic wellbeing.
[47] Specifically, it was proposed that the Council would play a leadership role in “facilitating, establishing, and subsequently supporting as a partner, collaborative programmes that carry out the on-ground management of pest conifers”. It would also employ persons to inspect land to ensure occupiers were meeting their obligations, monitor the effectiveness of control, use administrative powers under the BSA as a management agency, and encourage landowners and/or occupiers to control pests. It was proposed also that new rules would be inserted into the 2018 RPMP placing
44 Decision under appeal, above n 1, at [53].
obligations on occupiers to destroy pest conifers where a control operation has been carried out, with those failing to do so liable to be charged of an offence pursuant to s 154N(19) of the BSA.
[48] In its analysis of the benefits and costs for the proposed programme, the Council determined that a medium level of analysis be undertaken, and considered that quantifying the benefits would not be practicable. The Council identified three options, being:
(a)taking no action, described as ‘No RPMP’;
(b)an eradication programme; or
(c)a progressive containment programme.
[49]The Council preferred a progressive containment programme on the basis that:
…the level of benefit that could be attributed to a successful Progressive Containment programme in the long term outweighs the proposed and estimated $1.75 million+ cost of the programme per annum over the first 5 years of the programme. The benefit of intervening also outweighs any benefits accrued from not intervening.
[50] Mr Evans made submissions in opposition to this proposal, addressing the legacy issues at Stronvar, and seeking the reinstatement of the containment zone that had been included in pest management strategies in 2007 and 2012. He also opposed the proposal that landowners and/or occupiers would have to bear the cost of dealing with those issues prospectively, seeking that “the responsibility for control of legacy infestations remain that of the authorities who created the problem in the first place”.
[51] The Council delegated authority to hear and consider submissions on its proposal to a Hearing Panel. That Panel conducted a hearing of submissions on 24 February 2020, and issued proposed amendments to the proposal on 20 April 2020. It did not adopt the changes to the proposal sought by Mr Evans. Although changes were made to the wording of some aspects of the proposal, the Panel’s decision was to recommend that the Council retain a progressive containment programme.
[52] The Panel directed Council staff to prepare a regional pest management plan that addressed the Panel’s recommendations. In doing so, the Panel commented in respect of Mr Evans’ submissions that:45
The Panel considered the suggestion to change the zoning on [Mr Evans’] land. It noted that if central government were to implement a pest conifer programme then an area not appropriately zoned, i.e. not a High Risk Pest Conifer Management Area, would likely not be included in the programme. For this reason the Panel were not of a mind to make the requested change to zoning on the submitters’ land.
However, the Panel did find [Mr Evans’] concerns regarding legacy issues compelling, further commenting that land owners could be heavily penalised on account of historic inactivity of the crown and/or agencies not controlling wilding conifers on their land and/or on adjacent land. Nor is there evidence that sufficient action has been taken by any one of those organisations to ensure this same behaviour does not continue in the future.
[53] Following further review, the Panel confirmed on 21 May 2020 that it was satisfied that the proposed amendments met the requirements of the BSA. The Council then confirmed those amendments on 25 June 2020, noting in its Decision Report:
[16] Finally, the panel drew attention to the historical planting of pest conifers in the 1970’s [sic] by the Crown and the Marlborough Catchment Board (MCB). At the time, the Crown and MCB assured landowners of their commitment to control any wilding pine spread from those plantings. Over the years some control work has been carried out, but this has been minimal and overall ineffective. The result of the spread necessitated the include [sic] of high risk areas on properties in South Marlborough.
[17] As there is currently little evidence to suggest that control or eradication work would be undertaken on affected lands subject to this historic issue, or land adjacent to them, the Panel wished to emphasise that if the policy framework was to change in the future, these legacy issues should be strongly considered and landowners provided ongoing assurance that they will not be penalised for actions outside their control.
Commencement of proceedings in the Environment Court
[54] Public Notice of the Council’s decision was given on 9 July 2020. On 29 July 2020, Mr Evans filed an application in the Environment Court under s 76 of the BSA seeking orders amending the review of the regional pest management plan. Mr Evans sought orders amending the review of the 2018 RPMP, to incorporate the following:
45 The Panel did however recommend an amendment to one of the proposed rules specifying that occupiers were not required to destroy pest conifers on land within the area to which the proposed amendments to the 2018 RPMP were to apply.
(a)instating a containment area for Contorta Pine with objectives and rules to the same effect as the Contorta Containment Areas in the Regional Pest Management Strategy for Marlborough 2012;
(b)relief in terms of Mr Evans’ submission on the proposed amendments;
(c)equivalent relief that the Court think[s] fit; and
(d)costs.
[55]In his application, Mr Evans alleged that:
(a)The proposal did not fully set out the matters in s 70(2) of the [BSA].
(b)The proposal is not an effective means of effectively managing the Contorta Pine in the former Contorta Containment Areas in the [Regional Pest Management Strategy for Marlborough 2012]
(c)The private land owners (including the applicant) required to control wilding pines on their land would not receive a benefit outweighing the cost to them.
(d)The refusal to reinstate the Contorta Pine Containment Area is not reasonable.
(e)The Council has considered irrelevant considerations when assessing the applicant’s submissions on the proposal
[56] The relief sought by Mr Evans evolved throughout the proceeding before the Environment Court. He latterly sought the inclusion of specific provisions relating to Stronvar, to impose requirements that the Council would:
(a)recognise that the preservation of indigenous vegetation cover within the Stronvar Retirement Area needs to be prioritised, in order to maintain biodiversity and minimise downstream sedimentation;
(b)recognise the commitments that the Council and the Council’s predecessors have made to the owners of Stronvar that they will control pest conifers;
(c)the Council is, with landowner permission, to strategically control pest conifers on Stronvar by:
(i)removing pest conifers from Stronvar other than within the Stronvar Retirement Area consistent with (a);
(ii)within the Stronvar Retirement Area, investigate methods of pest conifer removal consistent with (a); and
(d)exempt Stronvar from rules imposing obligations on landowners to remove and contain pest conifers.
[57] At the time Mr Evans proposed this relief, being approximately a week prior to the hearing in the Environment Court, the Council opposed its inclusion for consideration. Further changes were then sought by Mr Evans in closing submissions, where he agreed with the Environment Court that Stronvar could be provided for in the regional pest management plan through a ‘site-led programme’, which would address his principal concerns as follows:
(a)to ensure that the indigenous biodiversity values within Stronvar are maintained in the long term (in particular within the Stronvar Retirement Area);
(b)that any method to contain or remove pest conifers does not cause substantial erosion or sedimentation on Stronvar; and
(c)that he (or any successor in title) is not burdened with the substantial costs of containment or removal of pest conifers on Stronvar and rather those costs are allocated in an enforceable way to the exacerbators including the Council.
The Environment Court decision
[58] The Environment Court heard Mr Evans’ application on 8 November 2022, and issued its decision on 17 March 2023.
The issues
[59] The Environment Court described the issue before it as “which of the available programmes under the [BSA] should apply to the affected part of Stronvar infested with the pest conifer species resulting from the historical plantings by others”.46 In addressing that issue, the Environment Court was also required to determine, in respect of what was apparently the first fully contested application under s 76 of the BSA:
(a)the nature of its jurisdiction under s 76; and
(b)whether the refinements to the relief sought by Mr Evans went beyond the scope of his original application.
Jurisdictional matters
[60] At the outset of its analysis, the Environment Court noted that it did not agree with the Council’s contention that the changes sought by Mr Evans were impermissible because the 2015 NPD mandates a region-wide approach, stating “nothing in that instrument supports that contention”.47 It then moved to the issue of its jurisdiction under s 76, addressing specifically whether Mr Evans’ application was to be treated as an appeal. Mr Evans’ position before the Environment Court was that the Court’s jurisdiction was to be treated as a general appeal. The Council disagreed, submitting that the Court was required to confirm the Council’s decision unless it considered that that there was a procedural error or that the proposal was inconsistent with the 2015 NPD.
[61] In addressing this issue, the Environment Court considered the amendments made to the BSA in 2012 by the Biosecurity Law Reform Act 2012, noting that prior to amendment, the BSA “referred to the proceeding lodged in the Environment Court (which was then made under s 79D) as a ‘reference’ which was to be treated as “an appeal”.”48 Although s 76 no longer refers to an application as being a ‘reference’ and/or to its treatment as an appeal, the Environment Court’s powers in determining
46 Decision under appeal, above n 1, at [16].
47 At [93].
48 At [104].
an application remained unchanged following the 2012 amendment.49 Further, as a ‘reference’ under the previous legislation was to be treated as an appeal, it meant that s 290 of the Resource Management Act applied, which provides that “[t]he Environment Court may confirm, amend, or cancel a decision to which an appeal relates”.
[62] The Court considered, with reference to previous cases (although they were all resolved by consent), that:50
Cases involved parties seeking a direction to modify the plan based on the changes that had been agreed.51 Accordingly, it is apparent to this court that the jurisdiction was treated as being in the nature of a general appeal to be considered on a de novo basis in every case.
(emphasis in original)
[63]And further that:52
…We are reluctant to infer that the application is no longer to be treated as an “appeal” to be heard on a de novo basis in the absence of an express reference to an alternative jurisdiction.
We agree with Mr Davies that the changes made to the Act can be ascribed to changes in drafting styles rather than substance, incorporating an end of the concept of ‘references’ to the Environment Court.53
….
Our approach is consistent with a purposive approach to Part 5 of the Act whereby applications enable the court to act as a check and balance to the power of the Council in:
(a)the development of effective and efficient instruments for pest management; and
(b)making an appropriate distribution of costs associated with these instruments and measures.
We agree with Mr Davies that a jurisdiction limited to a review oversight is inconsistent with this purpose, as would an appeal right limited to questions
49 Decision under appeal, above n 1, at [105].
50 At [115].
51 For example, Royal Forest and Bird Protection Society of New Zealand Inc v Bay of the Plenty Regional Council [2021] NZEnvC 147.
52 Decision under appeal, above n 1, at [125]–[134].
53 By an amendment to the RMA in 2003, plan provisions were no longer “referred” to the Environment Court under cl 15 of sch 1 of the RMA: they were appealed. See s 92 of the Resource Management Amendment Act 2003.
of law. If Parliament had intended the jurisdiction to be other than (fully) appellate it would have said so.
Accordingly, we are not limited to considering whether the Council’s decision is in error of the law as the Council submitted. We acknowledge that an application is able to be made on grounds that the subject matter of the application is alleged to be inconsistent with the NPD, and/or the process requirements for a plan in the NPD (if there were any) were complied with.
These reflect the statutory requirements for a plan prepared under the Act, however, an application is able to be about any aspect of the plan. That may entail an entirely merit-based evaluation of the matters raised in the application, not being confined to errors of law.
In coming to our decision, we have the same power, duty and discretion under the Act as the Council in determining this application in terms of s 76, notably those in s 74 of the Act. To the extent that an application raises defects in the procedure followed by the Council, these are cured by a de novo hearing.54
(emphases in original)
[64] As to the refinements to the relief sought by Mr Evans immediately prior to and at the conclusion of the hearing, the Environment Court considered that scope was a matter of fact and degree, and natural justice, considering both the effects of the change being sought and the opportunity for those affected to participate in the process.55 The Court noted that:
(a)the statutory purpose of pt 5 of the BSA differs from the purpose of the Resource Management Act, as does the nature and regulatory effect of the instruments promulgated under each statute;56
(b)the consultation process prescribed in the BSA differs markedly from sch 1 of the Resource Management Act;57
(c)the BSA requires that persons who are directly affected by a proposal must be consulted;58
54 Citing: Countdown Properties (Northlands) Ltd v Dunedin City Council [1994] NZRMA 145; Calvin v Carr [1979] 1 NSWLR 1; A J Burr Limited v Blenheim Borough [1982] 2 NZLR 1; and Love v Poirua City Council [1984] 2 NZCR 308.
55 Decision under appeal, above n 1, at [144].
56 At [145].
57 At [145].
58 At [147].
(d)the Council’s consultation on the proposal in this case involved public notification, the receipt of submissions, and Mr Evans participated in the submission and hearing process;59
(e)there was no evidence before the Court that the submissions to be lodged with the Council were to be specific as to the changes sought to the proposal so as to justify the Council’s restrictive approach to the issue of the scope of Mr Evans’ proposed changes;60
(f)Mr Evans was a person entitled to make an application as described in s 76(3);61
(g)an application could be about “any aspect of the plan” under s 76(2), and that s 76(3) was silent on whether a submitter to a publicly notified proposal must confine an application to a Council’s decision on their written submissions;62
(h)by comparison, sch 1 of the Resource Management Act was more prescriptive “as to the scope of original and further submissions able to be made to a proposal under the RMA, and as to the Council’s power”;63 and therefore
(i)an application made by a submitter to a publicly notified proposal may be about any aspect of the plan, provided that aspect of the plan is based upon or about the matters raised in their submission, and that there was no reason to be bound by the rigour of decisions in the Resource Management Act context, when considering matters under the BSA.64
[65] On that basis, the Environment Court considered that the changes sought by Mr Evans were within its jurisdiction to consider on an application made under s 76,
59 Decision under appeal, above n 1, at [148]–[149].
60 At [150].
61 At [151].
62 At [151]
63 At [154].
64 At [156]–[157].
as they were all directed at what the proposed regional pest management plan provided for in relation to Stronvar. The Court took the view that the Council was taking an “unduly legalistic approach”, and further that Mr Evans’ proposal was not fundamentally different from what was sought in his submission or his original application.65
Substantive matters
[66] Having resolved the jurisdictional issues, the Environment Court then went on to address Mr Evans’ concerns about the lack of ability for landowners to have input into plans made by Council pursuant to the progressive containment management plan under the regional pest management plan, and the risks of erosion and native biodiversity loss. The Court concluded:66
We find the Council’s brief consideration of the erosion risks identified with eradication on Stronvar are unsatisfactory. The impacts of pest conifers invading indigenous ecosystems are discussed briefly, however risks to indigenous biodiversity do not appear to have been considered.
We agree that eradication of pest conifers without adequate erosion control would in the medium-term result in the problems that led to the initial plantings to control soil instability and erosion.
We accept that in the absence of any guiding provision in the RPMP 2020, it would be difficult for Mr Evans to challenge any aspect of any operational plan by way of judicial review. Accordingly, if he is dissatisfied with the Council’s operational plan for Stronvar, he is left with no effective remedy.
We do not agree that only the environmental effects of pest invasion are able to be considered, to the exclusion of the environmental effects of removing that invasion. These environmental effects come within the scope of s 70(2)(e)(i) as an effect on the environment resulting from implementation of the plan.
These effects should not be ignored in the plan preparation process. Indeed, before moving to the second step in s 71, the Council must be satisfied that s 70 requirements have been complied with. Even at the s 71 step, environmental effects fall within the scope of analysis to be undertaken by the Council in s 71(e). This states:
65 Decision under appeal, above n 1, at [158]–[163].
66 At [177]–[187]. The Environment Court referred to the RPMP 2020 in its decision, but the Council’s proposal was to amend the 2018 RPMP. The 2020 RPMP incorporates amendments to the 2018 RPMP but this version of the plan is not yet operational as it is subject to this appeal. In this judgment, I refer to the plan as the 2018 RPMP.
that for each subject, the benefits of the plan would outweigh the costs, after taking account of the likely consequences of inaction or other courses of action.
We agree that there was a need for these effects to be considered in formulating a programme for inclusion in the RPMP 2020.
…
We find that a nested site-led programme operating within the region wide progressive containment would be permissible under the NPD. We do not agree that a single region-wide approach is mandated by the Act of the NPD as the Council contended.
Objective 5.22.1 on progressive containment, which contemplates reduction or containment, is expressed as applying to all pest conifer species within Marlborough (spanning the HRCMA depicted in map 10). However, within that framework there is scope for a nested site-led programme for Stronvar as the applicant proposes, where containment or reduction remain as the identified objective.
As earlier noted, both response options are within the scope of these two programmes as they are defined within the NPD, although the site-led programme would provide further detail as to when and how reduction is to be carried out in preference to containment in order to protect values at Stronvar. This could include principles to retain indigenous biodiversity and to minimise soil erosion.
(emphasis in original)
[67] The Court considered that the issues regarding implementation of its proposed site-led programme should be resolved by the parties, and that the parties should draft the proposed additions to the 2018 RPMP.67 The Court did not consider that further consultation was necessary as a result of the amendments it proposed to direct, relying on the fact that the proposed amendments related only to Stronvar, and that Mr Evans’ application was served on all interested persons, none of whom elected to join it.
[68] Finally, the Court addressed whether the Council could be considered an exacerbator. Mr Evans sought that the Crown and the Council be allocated the cost associated with any control of the legacy issues, relying on cl 7(2)(d) of the 2015 NPD for the purposes of complying with s 71(e)(ii) of the BSA. The Court was unwilling to make a finding as to the Council’s responsibilities for exacerbation, considering that it was beyond its jurisdiction to do so.68
67 Decision under Appeal, above n 1, at [188].
68 At [201].
Relief
[69]The Environment Court granted relief in the following terms:69
A:The relief sought by Mr Evans seeking amendments to the RPMP 2020 to enable a site-led programme at Stronvar and to address concerns regarding erosion risk and maintenance of indigenous biodiversity values is granted.
B:We direct the parties, beginning with the applicant, to draft wording to be inserted within the existing framework for pest conifer species in section 5.22 of the RPMP 2020, providing for a site-led programme for Stronvar, where containment or reduction remain as the identified objective.
C: Options for providing for this within the RPMP 2020 include:
(a)the insertion of an “other measure” within the existing framework of the progressive containment programme, or
(b)alternatively by including a further intermediate outcome based on ‘protecting values in places’ incorporating and expanding on the objectives and measures for the progressive containment programme;
(c)a management plan for Stronvar could be developed with the involvement of Mr Evans, to address his concerns about the values of the land being protected, where any intervention is proposed on the land.
D: We leave it up to the parties to determine the details of how a site-led approach for Stronvar, based on Mr Evans’ concerns, could be drafted and incorporated into the existing framework.
E:The draft wording is be circulated to the Marlborough District Council in 20 working days for comment and for further drafting as required.
F:The parties are to liaise with a view to providing a final copy to the court within a further 20 working days with a memorandum advising:
(a)whether there is any disagreement on the wording of the amendments;
(b)the position of each party;
(c)whether the parties seek a reconvening of the hearing or whether outstanding issues, if any, are capable of being resolved on the papers; and
(d)whether further consultation should be carried out on persons served with the original Notice of Motion filed with the court.
69 Decision under appeal, above n 1, at pages 3 and 4.
G: Costs are reserved pending the final decision.
Approach to appeal
[70] The parties are agreed as to the approach that applies to appeals to the High Court from the Environment Court. Section 299 of the Resource Management Act 1991, provides that a party to a proceeding before the Environment Court may appeal “on a question of law to the High Court against any decision, report, or recommendation of the Environment Court”.70
[71] In an appeal on a question of law, this Court cannot substitute its own assessment upon the facts nor re-examine them.71 Nor will it concern itself with the merits of a case under the guise of a question of law.72 The question of weight to be given to the assessment of relevant considerations is for the Environment Court alone.73 Equally, the High Court shows deference to the Environment Court, as it is a specialist jurisdiction.74
[72] The more typical grounds upon which the High Court may intervene are if the appellant establishes that the Environment Court:75
(a)applied the wrong legal test;
(b)made a conclusion unsupported by evidence;
70 The appeal progresses in accordance with the High Court Rules 2016, to the extent they are not inconsistent with ss 300 to 307 of the Resource Management Act.
71 See Dye v Auckland Regional Council [2002] 1 NZLR 337, (2001) 7 ELRNZ 209 (CA); and Arrigato Investments Ltd v Auckland Regional Council [2002] 1 NZLR 323, (2001) 7 ELRNZ 193 (CA).
72 New Zealand Suncern Construction Ltd v Auckland City Council [1997] NZRMA 419, (1997) 3 ELRNZ 230 (HC) at 240; citing Sean Investments v Mackellar (1981) 38 ALR 363; and Parkinson v Waimairi DC (1988) 13 NZTPA 244 (HC).
73 Stark v Auckland City Council [1994] 3 NZLR 614 (HC) at 617; and Moriarty v North Shore City Council [1994] NZRMA 433 (HC).
74 See Guardians of Paku Bay Association Inc v Waikato Regional Council [2012] 1 NZLR 271 (HC) at [33].
75 See Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721; Tauranga Environmental Protection Society Inc v Tauranga City Council [2021] NZHC 1201, (2021) 22 ELRNZ 669 at [60]; and Redmond Retail Ltd v Ashburton District Council [2021] NZHC 2887, (2021) 23 ELRNZ 240 at [38].
(c)overlooked any relevant matter or taken account of some matter which is irrelevant to the proper application of the law; or
(d)failed to comply with the rules of natural justice.76
[73] An error of law must materially affect the result of the Environment Court’s decision before the High Court will grant relief.77
Grounds of the Council’s appeal
[74] The substantive point on the Council’s appeal is that the Environment Court did not have the jurisdiction to direct the inclusion of a site-led programme in the 2018 RPMP and that it made errors of law in applying the relevant provisions of the BSA and 2015 NPD. The Council says that the Environment Court:
(a)Applied the wrong legal test when it failed to consider section 100D of the Act and read in the necessary modifications to sections 68 to 78 of the Act as required when a review of a regional pest management plan is conducted…
(b)Applied the wrong legal test when it applied section 76(2) and considered whether the process requirements for a plan under sections 70 to 73 of the Act were complied with…
(c)Applied the wrong legal test when it concluded that it must be satisfied that there has been adequate consultation in relation to the amendments it considers that the council should make to the RPMP 2018…
(d)Granted relief beyond the jurisdiction of the Environment Court…
(e)Applied the wrong legal test by granting relief providing for a site-led programme for Stronvar, where containment or reduction remain as the identified objective that is inconsistent with clauses 4 and 5 of the National Policy Direction for Pest Management 2015…
(f)Applied the wrong legal test when applying sections 70 and 71 of the Act and clause 6 of the NPD when considering erosion risks and risks to indigenous biodiversity…
(g)Applied the wrong legal test when it concluded that the insertion of an “other measure” within the existing framework of the progressive
76 Island Bay Residents’ Association Inc v Wellington City Council [2001] NZRMA 63 (HC) at [48]– [50]; and Te Whare O Te Kaitiaki Ngahere Incorporated v West Coast Regional Council [2015] NZHC 2769 at [18].
77 Transpower New Zealand Ltd v Auckland Council [2017] NZHC 281 at [52]; citing Countdown Properties (Northland) Ltd v Dunedin City Council [1994] NZRMA 145 (HC) at 153–154.
containment programme is an option for providing for the relief granted…
[75] I address each of the errors of law alleged by the Council before turning to Mr Evans’ cross-appeal, to the extent that is necessary. The parties addressed the fourth error of law (relating to the Environment Court granting relief beyond its jurisdiction) at the end of their submissions and I follow that approach in my discussion. Before doing so, however, I address a preliminary issue.
The nature of the Environment Court’s findings and this Court’s jurisdiction
[76] There are some issues with the Council’s appeal in light of the interim nature of the Environment Court’s decision, particularly as it has not yet granted relief in certain terms. Having concluded that the Council’s consideration of erosion risks was unsatisfactory, the Environment Court suggested options for relief, and invited the parties to confer and provide submissions. The options it suggested were:
(a)“a nested site-led programme operating within the region-wide progressive containment”;78
(b)“a management plan to be prepared with the involvement of Mr Evans if control or eradication of pest conifers on the retired land is proposed, with the objective of recognising the values attaching to that land”;79
(c)“the insertion of an “other measure” within the existing framework”;80
(d)“a further intermediate outcome based upon ‘protecting values in places’ could be inserted, supporting a ‘site-led programme’ for the retired land at Stronvar”.81
[77] Currently, then, the only relief granted by the Environment Court is a direction for “amendments to the RPMP 2020 to enable a site-led programme at Stronvar and
78 Decision under appeal, above n 1, at [185].
79 At [189].
80 At [190].
81 At [191].
to address concerns regarding erosion risk and maintenance of indigenous biodiversity values”.82 The Court directed the parties to:83
…draft wording to be inserted within the existing framework for pest conifer species in section 5.22 of the RPMP 2020, providing for a site-led programme for Stronvar, where containment or reduction remain as the identified objective.
[78] However, the direction to draft wording to be inserted into the 2018 RPMP was linked to the Environment Court’s findings that there were several options for providing for a site-led programme at Stronvar.84 The way in which the Environment Court has phrased relief and described its decision as ‘interim’ in this case raises issues for two reasons. First, because this Court has previously held that the appropriate time to lodge an appeal is after a final decision has been made.85 Second, because an error of law must materially affect the result of the decision of the Environment Court before the High Court will provide relief.86
[79] Unsurprisingly, this is an issue that has arisen before this Court previously. The authorities reveal that interim decisions of the Environment Court under s 299 of the Resource Management Act are appealable to the extent that they finally decide substantive issues between the parties, notwithstanding that some other issue or issues may be left for further consideration.87
[80] In Mawhinney v Auckland Council Wylie J accepted the Environment Court’s view in Gardez Investments Ltd v Queenstown Lakes District Council, that it is necessary to identify what the Court has decided, and what it has left undecided.88 On
82 Decision under appeal, above n 1, at [A].
83 At [B].
84 At [C].
85 Peninsula Watchdog Group (Inc) v Coeur Gold New Zealand Ltd [1997] 3 NZLR 463, (1997) 3 ELRNZ 336 (HC) at 341.
86 Transpower New Zealand Ltd v Auckland Council, above n 77, at [52]; citing Countdown Properties (Northland) Ltd v Dunedin City Council, above n 77.
87 Mawhinney v Auckland Council (2011) 16 ELRNZ 608 (HC) at [97]; Hahei Developments Ltd v Thames-Coromandel District Council [2005] NZRMA 21 (HC) at [35]–[36]; and Queenstown Lakes District Council v JF Investments Ltd HC Invercargill CIV-2004-485-2278, 18 March 2005 at [10].
88 Mawhinney v Auckland Council, above n 87, at [95]; citing Gardez Investments Ltd v Queenstown Lakes District Council EnvC Christchurch C95/05, 1 July 2005 at [39] and [40].
the issues it has decided, the Court has completed its functions and is functus officio. Further, an appeal lies to the High Court. On the issues it has not decided it is not functus officio and there is no right of appeal:89
… The test is whether, in substance, the “interim” decision:
(a)decides the whole proceedings or, at least, one or more particular issues conclusively (in which case the Court is functus officio on each such issue); or
(b)leaves the matter open for parties to return to the Court with further submissions and/or evidence notwithstanding the views expressed at the interim stage … .
[81] Wylie J then went on to identify the substantive issues on which the Environment Court had made conclusive determinations, finding that in respect of those issues, the Environment Court had completed its functions and that the parties could not return to it for further resolution of those issues, which were accordingly appealable.90
[82] In the present case it is therefore necessary to identify clearly what substantive issues the Environment Court conclusively determined. At the risk of repetition, the substantive issues conclusively determined by the Environment Court were that:
(a)an application under s 76 of the BSA was to be treated as an appeal on a de novo basis, with the Environment Court standing in the shoes of the Council;
(b)the refinements to the relief sought by Mr Evans were within its jurisdiction to consider on an application made under s 76, as they were not fundamentally different from what was sought before the Council or in his original application;
(c)the Council’s brief consideration of the erosion risks identified with eradication on Stronvar was unsatisfactory; and
89 Gardez Investments, above n 88, at [39]–[40].
90 Mawhinney v Auckland Council, above n 87, at [98] and [74].
(d)it was appropriate to grant the relief sought by Mr Evans, being the insertion of a site-led programme into the 2018 RPMP, to address his concerns in relation to erosion and indigenous biodiversity.
[83] Accordingly, these are the substantive issues that may be subject to appeal. The Environment Court did not conclusively make findings or orders as to how the inclusion of a site-led programme into the 2018 RPMP was to occur, merely suggesting that the parties assess the available options and return to the Court with a proposal. Thus, this was left open. Those suggestions are therefore not appealable as the Environment Court has not conclusively determined them or ordered relief in such terms.
First alleged error of law
[84] The first error of law alleged by the Council is that the Environment Court applied the wrong legal test when it failed to consider s 100D of the BSA and read in the necessary modifications to ss 68 to 78 as is required when a review of a regional pest management plan is conducted.
The Council’s submissions
[85] Mr Maw, counsel for the Council, submits that the proposal to amend the regional pest management plan was part of a review pursuant to s 100D(2)(b) of the BSA, which, pursuant to s 100D(6), is to be conducted under ss 68 to 78 to the extent that they are relevant and reading in any necessary modifications. He says that not all of ss 68 to 78 are relevant to such a review, and that there are many instances where a reference to ‘the plan’ should be a reference to ‘the amendments to the plan’. Mr Maw submits that the Environment Court did not refer to a review under s 100D(2)(b) and did not read in any necessary modifications—although he accepted that a failure to refer to a provision itself is not an error of law.
[86] Mr Maw refers specifically to s 76, submitting that when the Environment Court considered its jurisdiction, it found that any aspect of the plan could be the subject of an application, not any aspect of the amendments to the plan. He says that
this finding led the Environment Court to approach its task from an incorrect starting point, and to take into account irrelevant considerations.
Mr Evans’ submissions
[87] Mr Davies, counsel for Mr Evans, submits that the Council has ignored the effect of ss 100D(4) and 100D(5), which he says make clear that a proposal may do more than amend a plan, including revocation or replacement, and that any amendments are a part of a proposal. He says also that it is clear that a proposal must comply with ss 70 and 71, not merely any amendments to the plan, and it is the proposal that is put out for public submission in terms of s 75(5)(c). He submits that in the present case, the proposal was to amend part of a plan to manage pest conifers, and that therefore to read in any necessary amendments to where the word “plan” appears in s 76, the correct approach would be to read in “part of the plan” rather than “amendments to the plan” as submitted by the Council.
[88] Mr Davies also draws attention to the purpose of the proposal—which was to include a new programme for pest conifers. He says that Mr Evans’ submissions and evidence, the Council’s decision, the application to the Environment Court, and the Court’s decision, was only in respect of pest conifers. Mr Davies therefore submits that in deciding that an application under s 76 was a general appeal, the Environment Court was simply determining the nature of its jurisdiction, being that it was not limited to errors of law, rather than claiming jurisdiction over other pest species that were not part of the proposal. He says in doing so, the Environment Court did not make an error of law.
Discussion
[89] I accept that the Environment Court did not refer to s 100D. Nor did it appear to read in any modifications as necessary as stipulated by s 100D(6). Were the necessary modifications read into s 76, as proposed by the Council, it would read as following:
76 Application to Environment Court about [amendments to] plan
(1)This section applies to the [amendments to a] plan resulting from the council’s decision under section 75(3).
(2)The following matters may be the subject of an application to the Environment Court:
(a)any aspect of the [amendments to the] plan:
(b)whether the [amendments to the] plan [are] inconsistent with the national policy direction:
(c)whether the process requirements for [amendments to] a plan in the national policy direction, if there were any, were complied with.
(3)If consultation on the proposal for the [amendments to the] plan was undertaken by way of public notification of the proposal and the receipt of submissions, a person who made a submission on the proposal may make an application to the Environment Court.
(4)If consultation on the proposal was undertaken other than by way of public notification of the proposal and the receipt of submissions, the following persons may make an application to the Environment Court:
(a)a person who participated in consultation during the preparation of the proposal and whose views were provided or recorded in writing:
(b)a person who participated in consultation on the proposal and whose views were provided or recorded in writing:
(c)a person who is likely to be affected by the [amendments to the] plan and did not participate in consultation only because the person was not given an opportunity to participate.
(5)The application must be made within 15 working days after the date of the public notice.
(6)The application is made under section 291 of the Resource Management Act 1991 and regulations made under the Resource Management Act 1991.
(7)The court must hold a public hearing on the application.
(8)The court must—
(a)dismiss the application; or
(b)direct the council to modify the [amendments to the] plan, delete a provision from the [amendments to the] plan, or insert a provision in the [amendments to the] plan.
[90] In short, it is not apparent that the reading in of the fact that the Court was considering a proposal which intended to make amendments to the 2018 RPMP arising
from a review under s 100D makes any difference to the nature of the Court’s jurisdiction under s 76.
[91] As submitted by Mr Davies, the issue before the Environment Court was squarely limited to the provisions within the proposed amendments dealing with pest conifers. That has been Mr Evans’ primary focus for some time—and the amendments that the Council sought to make to the 2018 RPMP were also squarely focused on pest conifers. I accept Mr Davies’ submission that the Environment Court properly limited its focus to the issue regarding pest conifers and did not conclude that it had jurisdiction beyond matters other than the Council’s proposed amendments related to pest conifers. In this respect, the Council appears to have misunderstood the Environment Court’s conclusion about the general nature of its jurisdiction under s 76 as being a conclusion that the Environment Court can effectively re-write any aspect of a plan on an application under s 76. I do not accept that was the Environment Court’s decision. It was concerned only with the proposed amendments to the 2018 RPMP as to pest conifers.
Conclusion
[92] I consider that in the present case, there is little difference between an application in respect of ‘any aspect of the plan’ as compared to ‘any aspect of amendments to the plan’, when considering the Environment Court’s jurisdiction under s 76. The Environment Court, having concluded that its jurisdiction was that of a general appeal, properly confined its conclusions to the amendments in respect of which Mr Evans made his application, being the proposed amendments to the 2018 RPMP concerning pest conifers. There is no basis on which to conclude under this heading that the Environment Court made an error of law.
Second alleged error of law
[93] The second error of law alleged by the Council is that the Environment Court applied the wrong legal test when it applied s 76(2) and considered whether the process requirements for a plan under ss 70 to 73 of the Act were complied with.
The Council’s submissions
[94] Mr Maw accepts that the Environment Court’s jurisdiction is that of a general appeal, but submits that this is only in respect of the matters listed in s 76(2), being:
Over the duration of this Plan, progressively contain pest conifers through containing and reducing, where feasible, the geographic distribution of pest conifers within the Marlborough region to reduce adverse effects on the environment, enjoyment of the natural environment and economic wellbeing.
[124] Ms Melhopt submits that this is because a site-led pest programme where containment or reduction remain as the identified objective is not an available option under the 2015 NPD or BSA. She says that for a site-led pest programme to be included, it would need to have its own intermediate outcome included as a new objective in the 2018 RPMP, and that therefore the Environment Court has applied the wrong legal test.
[125] Ms Melhopt says also that the alternative option proposed by the Environment Court, which would require a new site-led pest programme with a new objective, is beyond the scope of the proposal to review the 2018 RPMP and the amendments to the plan resulting from the Council’s decision.
Mr Evans’ submissions
[126] Mr Davies disagrees with the Council’s position. Broadly, he submits that the 2015 NPD does not preclude the Court’s approach, the Council’s own witness (Mr Underwood) did not dispute that a site-led approach could be adopted, and that to the extent there is a technical difficulty with the way the Environment Court expressed the relief, that is not a basis for allowing the Council’s appeal.100
[127] Mr Davies refers to cl 4(1)(b) of the 2015 NPD, submitting that all of the preceding intermediate outcomes are contained within the definition of “protecting
100 Decision under appeal, above n 1, at [165]–[166].
values in places”, being: exclusion, eradication, containment, reduction, and control. The definition of “protecting values in places” as an intermediate outcome:101
…means that the subject that is capable of causing damage to a place is excluded or eradicated from that place, or is contained, reduced, or controlled within the place to an extent that protects the values of that place…
[128] Mr Davies submits therefore that “protecting values in places” can have one or more objectives that relate to one or more of those outcomes, ‘to an extent that protects the values of that place’. He notes also that the definition of a ‘site-led pest programme’ in cl 5(e) is consistent with this, and says that there is nothing inconsistent with the wider area being subject to a progressive containment programme. Nor does the 2015 NPD prohibit intermediate outcomes relating to specific geographic areas.102 Mr Davies notes also that the Environment Court did not come to a concluded view as to how a site-led programme was to be implemented, instead leaving it to the parties to determine the details.
Is a site-led programme where containment or reduction remain as the identified intermediate objective permitted under the 2015 NPD?
[129]The Environment Court held that:103
… a nested site led programme operating within the region wide progressive containment would be permissible under the NPD…
…within that framework there is scope for a nested site-led programme for Stronvar as the applicant proposes, where containment or reduction remain as the identified objective.
[130] Clause 4(1) of the 2015 NPD requires that for each subject in a pest management plan, the objectives in the plan must state the particular adverse effect or effects of the subject on the matters listed in s 54(a) of the BSA that the plan addresses, and, state one or more pest management intermediate outcomes that the plan seeks to achieve.104 The available intermediate outcomes are: exclusion, eradication,
101 2015 NPD, cl 4(1)(b)(v).
102 Clauses (1)(c)(i) and 4(1)(d)(i)(A).
103 Decision under appeal, above n 1, at [185]–[186].
104 Section 54(a) of the BSA provides for the purpose of pt 5 of that Act. The matters referred to are “economic wellbeing, the environment, human health, enjoyment of the natural environment, and the relationship between Māori, their culture, and their traditions and their ancestral lands, waters, sites, wāhi tapu, and taonga”.
progressive containment, sustained control, and protecting values in places.105 There are specific requirements in relation to the first four of those intermediate outcomes.106 ‘Protecting values in places’ has its own distinct requirements.107 However, for all intermediate outcomes, the geographic area to which the outcome applies must be specified in one way or another.108
[131] Clause 5(1) requires that for each subject in a pest management plan the plan must contain one or more of the identified programmes, which are: an exclusion programme, an eradication programme, a progressive containment programme, a sustained control programme, and/or a site-led pest programme.
[132] The first point to note is that cls 4 and 5 of the 2015 NPD respectively provide that:
(a)for each subject in a pest management plan, the objectives in the plan must state one or more pest management intermediate outcomes that the plan seeks to achieve – meaning that more than a single intermediate outcome can be specified in relation to a particular subject; and
(b)for each subject in a pest management plan the plan must contain one or more of the identified programmes – meaning that more than a single programme can be specified in relation to a particular subject.
[133] Clause 5(3) then provides that the programme selected for a subject under cl 5(1) must be consistent with the intermediate outcome stated for the subject pursuant to cl 4.
[134] The Council’s argument under this heading is that a site-led programme is inconsistent with a region-wide progressive containment intermediate outcome, and that therefore the Court could not direct the inclusion of a site-led programme into a set of proposed amendments to the 2018 RPMP with an intermediate outcome of
105 2015 NPD, cl 4(1)(b).
106 Clause 4(1)(c).
107 Clause 4(1)(d).
108 Clauses 4(1)(c)(i) and 4(1)(d)(i).
progressive containment. The Council maintained this argument despite accepting that a site-led programme could be included if it had its own intermediate outcome, but submitted that to impose that as relief would be beyond the scope of the Council’s initial proposal and therefore impermissible.
[135] Mr Davies, while not conceding this point, appeared to submit that it mattered little what programme was chosen, so long as whatever is ultimately inserted into the 2018 RPMP had a specific effect in relation to Stronvar. He, however, submitted specifically that what was proposed by the Environment Court was not precluded by cl 4 and 5 of the 2015 NPD.
[136] The issue then, stated simply, is whether a site-led programme can be consistent with an intermediate outcome of progressive containment in terms of cl 5(3). There is no definition of ‘consistent’ in the 2015 NPD nor in the BSA. Counsel did not direct me to any case law or other legislative history materials that indicated that any particular intention was evident in the requirement contained in cl 5(3). The Environment Court did not address this particular requirement either, although it impliedly concluded that site-led programme is consistent with an intermediate outcome of progressive containment.
[137] Generally, consistent is taken to mean “constantly adhering to the same principles of thought or action”.109 Comparable concepts include ‘coherent’. ‘congruent’, ‘compatible’. Consistency proposes two or more things existing in agreement or harmony, or aligned with the same principles. It likewise invites a state in which there is an absence of contradiction.110
[138] A progressive containment intermediate outcome means “means to contain or reduce the geographic distribution of the subject to an area over time”.111 A site-led programme is a programme in which the intermediate outcome for the programme is that a subject or an organism spread by a subject, capable of causing damage to a place
109 Oxford English Dictionary (online ed, Oxford University Press, 2022), definition of “consistent”.
110 See Manukau City Council v Mangere Lawn Cemetery Trustees HC Wellington AP304/89, 24 April 1991 at 8.
111 2015 NPD, cl 4(1)(b)(iii).
“is excluded or eradicated from that place, or is contained, reduced, or controlled within the place to an extent that protects the values of that place”.112
[139] As identified by Mr Davies, the objectives of containment and reduction inherent in a progressive containment intermediate outcome are also included in the definition of a site-led programme. This means that a site-led programme can be focused on containment and reduction of a particular pest to an extent that protects the values of a specific place. I consider that in light of those definitions, it is plain that a site-led programme can be consistent with progressive containment as an intermediate outcome. Indeed, given that the definition of a site-led programme includes reference to exclusion, eradication, containment, reduction, and control, it is difficult to imagine circumstances in which a site-led programme would not be consistent with any of the intermediate outcomes contained in cl 4(1). I therefore do not agree with the Council that that a site-led programme is inconsistent with a region-wide progressive containment intermediate outcome.
[140] The construction of the 2015 NPD in this manner appears to allow for concentric programmes, whereby a smaller area within a larger area may have a specific programme imposed in respect of it, despite there being a broader and more general programme/intermediate objective for the same subject on a regional level. That appears to me to be a pragmatic way to deal with pest management—given that the vulnerability of specific areas to pest infestation is likely to vary across regions.
[141] Therefore, I do not consider that the Environment Court made an error of law in proposing as potential relief a site-led programme where containment or reduction remain as the identified intermediate objective.
Risk of removal as opposed to protection of values
[142] The Environment Court concluded that the environmental effects of removing a pest needed to be considered alongside the environmental effects of the pest itself, saying that the environmental effects of removal come within the scope of s 70(2)(e)(i), as an effect on the environment resulting from the implementation of a
112 2015 NPD, cl 5(1)(e).
plan. The Court then suggested that a site-led programme at Stronvar could include principles to retain indigenous biodiversity and minimise soil erosion in order to help determine “when and how reduction is to be carried out in preference to containment in order to protect values at Stronvar”.113
[143] The Council argued that this conclusion was also inconsistent with cls 4 and 5 of the 2015 NPD, saying:
…the Environment Court has directed a site-led programme to address the concerns regarding erosion risk and maintenance of indigenous biodiversity values from the removal of pest conifers rather than protecting the identified values at Stronvar from the damage caused by pest conifers.
[144] I agree with the Environment Court that the environmental effects of removing a pest is a matter that must be considered as an effect on the environment resulting from the implementation of a plan. The environmental effects of removal could also be considered to be a cost involved with the implementation of a plan, as in this case, where removal could harm biodiversity and/or cause undue soil erosion.114 Where the purpose of pest management plans includes “the development of effective and efficient instruments and measures that prevent, reduce, or eliminate the adverse effects of harmful organisms”, and the appropriate distribution of the associated costs, it is difficult to see how a direction aimed at including as a consideration the effects of removal is inconsistent with the 2015 NPD.
Conclusion
[145]Accordingly, this ground of appeal fails.
Sixth alleged error of law
[146] The sixth error of law alleged by the Council is that the Environment Court applied the wrong legal test when applying ss 70 and 71 of the BSA and cl 6 of the 2015 NPD when considering erosion risks and risks to indigenous biodiversity.
113 Decision under appeal, above n 1, at [187].
114 See Biosecurity Act 1993, ss 74(b) and 74(c); and 2015 NPD, cl 6(2).
The Council’s submissions
[147] Ms Melhopt submits that when applying s 70(2)(e)(i) of the BSA, the Environment Court failed to consider that the effects that the implementation of the proposed amendments to the plan would have on the environment are effects that are ‘in the opinion of the person making the proposal’, being the Council. She says also that ss 70 and 71 of the BSA are not able to be the subject of an application to the Environment Court under s 76 and are not relevant considerations for that Court.
[148] Ms Melhopt submits that when reaching the conclusion that the Council’s consideration of the erosion risks identified with eradication of pest conifers on Stronvar were unsatisfactory, the Court incorrectly applied cl 6 of the 2015 NPD, because it did not refer to the considerations referred to in cl 6, when considering the ‘appropriate level of analysis’ of the benefits and costs of proposed amendments to the plan. She submits that the Court ignored that when a council is analysing costs and benefits, these are only required to be quantified if practicable, and that given the region-wide scale of the pest conifer programme it was not practicable to undertake an analysis down to a property-specific scale.
[149] Ms Melhopt submits that the erosion risk of the removal of pest conifers specifically is not a relevant risk to whether the programme outcome will achieve its objective and that therefore it was an irrelevant consideration for the Environment Court. She says:
The risk that was appropriate for the Council to take into account in relation to erosion risk was how the requirements of the RMA in relation to soil erosion and water quality may adversely affect the implementation of a programme, not what the erosion risks of removing the pest invasion of conifers are generally.
For these reasons the Environment Court has applied the wrong legal test when applying Clause 6 of the NPD when it considered the level of analysis of costs and benefits, including the risks of removing a pest infestation, that is required to meet the requirements of the NPD and Act.
It required a level of analysis that is not anticipated by the NPD and has failed to consider what was practicable to assess in the context of a region-wide progressive containment programme. It has also considered the effects of the removal of the pest when the purpose of a RPMP is to prevent, reduce or [eliminate] the adverse effects of harmful organism (not the effects of their
removal) and that the objectives in the plan are to state the particular adverse effects of the pest.
Mr Evans’ submissions
[150] Mr Davies submits that the Council’s contentions are untenable on this point. He says that given that the Council accepts that the Environment Court’s jurisdiction is that of a general appeal, whether the Court agreed with the Council in its assessment of “any aspect of the plan” was a matter of judgement for the Court. He says that it is unlikely that Parliament would have provided for an application to the Environment Court with the Court being merely able to ascertain whether the Council had in fact formed an opinion under s 70(2)(e), rather than being able to assess whether that opinion was adequate.
[151] Mr Davies submits also that the Court was correct to decide that the Council’s analysis was inadequate, and that in any event, that was a factual finding of the Court that cannot be challenged on appeal unless it was made in error of law. He says that the Court made no error of law. He says:
The Court has repeatedly stated in the resource management context that essentially factual arguments should not be dressed up as errors of law.115
The Council might not like the fact that its process has been found to be inadequate. The Council may not like the fact that its case and evidence presented to the Environment Court has been found to be inadequate. The Court’s findings are within the rubric of costs and risks that the statutory and policy scheme requires the Court to consider.
Discussion
[152] I have already concluded that the Court’s consideration of the effects of the removal of pest conifers was not in error of law.
[153] The second aspect of the Council’s argument under this alleged error of law is that the Environment Court had required a level of analysis as to benefits and costs that goes beyond what is required by cl 6 of the 2015 NPD. Ms Melhopt said that the
115 Transpower New Zealand Ltd v Auckland Council, above n 77, at [54]. See also Bryson v Three Foot Six Ltd, above n 75; and Countdown Properties (Northlands) Ltd v Dunedin City Council, above n 77, at 153.
Environment Court erred in law in concluding that the Council’s consideration of erosion risks was unsatisfactory, because it:
(a)did not refer to the considerations contained in cl 6(1) when considering the ‘appropriate level of analysis’ of the benefits and costs of proposed amendments to the plan;
(b)did not consider that a council must only identify and quantify impacts, benefits and costs if it is practicable to do so; and
(c)misinterpreted the requirement under cl 6(2)(g) that an analysis of costs and benefits must take into account any risks that each option will not achieve its objective, because erosion risk of removal of pest conifers specifically is not a relevant risk to whether the programme option will achieve the reduction of adverse effects of pest conifers on the environment through progressive containment.
[154] I accept that the Environment Court did not refer to the considerations contained in cl 6(1) when considering the ‘appropriate level of analysis’ of the benefits and costs of proposed amendments to the plan. However, I consider that was so because ultimately its conclusion was that the Council had undertaken an inadequate analysis. The Environment Court was not concerned with whether the Council’s conclusion that a medium level of analysis was preferable was correct, or whether the Council had properly considered the matters in cl 6(1), but rather whether on a factual basis there had been an adequate level of analysis undertaken. That appears to be a finding that relates to the requirement contained in cl 6(2)(f) of the 2015 NPD that an analysis of the costs and benefits of a plan be at an appropriate level of detail. As such, I am not satisfied that the Court erred in law by not referring to the matters contained in cl 6(1).
[155] Further, an appeal to this Court is specifically limited to questions of law. As submitted by Mr Davies, the Council’s submissions on this point essentially challenge the factual finding of the Environment Court that the Council’s analysis was unsatisfactory. In order to establish that the Court made an error of law in concluding
on the facts that the Council’s analysis was unsatisfactory, the Council is required to show that there is no evidence to support that conclusion.116 The Council provided no basis for reaching such a conclusion, and did not argue its appeal on this basis.
Conclusion
[156]Accordingly, this ground of appeal fails.
Seventh alleged error of law
[157] The seventh error of law alleged by the Council is that the Environment Court applied the wrong legal test when it concluded that the insertion of an “other measure” within the existing framework of the progressive containment programme is an option for providing for the relief granted (being a site-led programme for Stronvar within the 2018 RPMP).
The Council’s submissions
[158] Ms Melhopt submits that s 73 lists the matters that must and may be specified in a regional management plan, and that does not include ‘other measures’. She says that ‘other measures’ that it would be reasonable to take to achieve the objectives, if there are any such measures, and the reasons why the proposed measures are preferable as a means of achieving the objectives, are required to be included in the proposal for a plan under s 70, not the plan itself. She says that the Hearing Panel had already satisfied itself that the proposal contained the matters set out in s 70, and that this is not a decision that the Environment Court was entitled to revisit.
[159] Ms Melhopt says that the plan specifies the principal measures to be taken to achieve the objectives of the plan. In the Council’s decision, this was to:
Over the duration of this Plan, progressively contain pest conifers through containing and reducing, where feasible, the geographic distribution of pest conifers within the Marlborough region to reduce adverse effects on the environment, enjoyment of the natural environment and economic wellbeing.
116 See for example Terrace Tower (NZ) Pty Ltd v Queenstown Lakes DC [2001] NZRMA 193 (HC) at [19]–[20].
[160] Ms Melhopt submits that the adverse effects referred to in this objective are the adverse effects of the pest on a region-wide basis. She says that the relief sought by Mr Evans focused on a part of a single property, which is not a principal measure to contain and reduce, where feasible, the geographic distribution of pest conifers in the Marlborough region. She says therefore that the Environment Court applied the wrong legal test in granting relief.
Mr Evans’ submissions
[161] Mr Davies submits in response that an ‘other measure’ is not precluded by s 73, saying:
Section 73 sets out what a plan must contain and what a plan may contain. The only matters which a plan must not contain are set out within s 73(4)(b), none of which are relevant here. Another measure might fall within s 73(3)(k). Section 73(5)(e) refers to measures which suggests that measures other than “principal measures” are able to be contained within the plan.
On the basis that s 73 does not preclude other measures being contained within the plan, there is no reason why they should not be included if that is the will of the Environment Court under s 76(8)(b). Presumably a “provision” could be an “other measure” in terms of that section.
[162] Mr Davies reiterates that the 2018 RPMP already contains property specific provisions. He also submits that in any case, the Environment Court’s decision as to relief is not final, as the parties were directed to consider the available options.
Discussion and conclusion
[163] I consider that this ground of appeal falls into the category of matters that are not appealable. It seeks to challenge one of the Environment Court’s suggestions as to the form of relief to be granted. It is not a matter on which the Court made a final substantive determination. Accordingly, I do not consider that the Court’s suggestion that the insertion of an “other measure” within the existing framework of the progressive containment programme is an option for providing for the relief granted is subject to appeal.
[164] In the alternative, it seems to me that the Environment Court directing such relief would not be an error of law. The matters that must and may be included within
a pest management plan as set out by s 73 of the Act are broad. I have concluded above that a site-led programme is permissible in a plan with progressive containment as one or more of its intermediate outcomes. I am not satisfied that the Environment Court has fallen foul of the broad ambit of s 73 by suggesting that an “other measure” within the existing framework of the progressive containment programme is an option for providing for the relief granted.
[165] Sections 73(5)(d) and 73(5)(e) provide that a rule may be made for the purpose of regulating specified methods that may be used in managing a pest, and activities that may affect measures taken to implement the plan. A rule may apply generally, or to different classes or descriptions of things, and also “throughout the region or in a specified part or parts of the region with, if necessary, another rule on the same subject matter applying to another specified part of the region”.117 The crux of the Environment Court’s powers pursuant to s 76 is that the Court may “direct the council to modify the plan, delete a provision from the plan, or insert a provision in the plan”.118 I consider, like the Environment Court, that the Council seeks to impose an unduly legalistic interpretation on the requirements of the BSA. Accordingly, it is my view that the insertion of an “other measure” within the existing framework of the progressive containment programme is an option for providing for the relief granted.
Fourth alleged error (as to relief)
[166] The fourth error of law advanced by the Council is that the Environment Court granted relief that was beyond its jurisdiction.
The Council’s submissions
[167] Mr Maw submits that the Environment Court did not have jurisdiction to direct the inclusion of a site-led programme at Stronvar, either as part of the existing region- wide progressive containment programme or as a stand-alone site-led programme. He says that having already addressed the issues under s 76 and the scope of permissible programmes under the 2015 NPD, under this heading the issue is whether the relief granted was within the scope of the Council’s proposal to amend the regional pest
117 Biosecurity Act 1993, s 73(6).
118 Section 76(8)(b).
management plan and the amendments to that plan resulting from the Council’s decision.
[168] Mr Maw submits that although a s 76 application is to be heard afresh, following a review of a regional pest management plan, the Court’s consideration is restricted to the amendments to the plan resulting from the Council’s decision and in respect of the matters set out in s 76(2). He submits that the Court went beyond those matters. He says:
The Court has approached its task from an incorrect starting point in terms of jurisdiction. It has considered the plan as it relates to pest conifers and how any of the available programmes under the Act should apply to one geographical area, rather than the starting point of the Council’s decision on the proposed amendments being progressed through the review of the RPMP which are to achieve progressive containment of pest conifers on a region- wide scale.
If the Court had approached its task from the correct starting point it could not have considered that a site-led programme within the existing framework of the RPMP was an available option within the scope of the Council’s proposal to amend the RPMP in a manner consistent with the NPD.
[169] Mr Maw notes the differences between a progressive containment programme and a site-led programme, and that the values assessment required of a site-led programme was not undertaken as part of the preparation of the Council’s proposal for the amendments. He says that this is a matter that cannot be revisited, and gives rise to issues of natural justice, as affected persons have not had the opportunity to provide their views. He says that issues of natural justice cannot now be remedied by further consultation directed by the Court, or by service of Mr Evans’ Notice of Motion on all interested persons.
Mr Evans’ submissions
[170] Mr Davies disagrees. He submits that the focus in this jurisdiction should be on substance over form. He says that an overly technical approach to what is sought by Mr Evans undermines the problem solving nature of the resource management and biosecurity context. 119 He says that a focus on substance is consistent with the purpose
119 Compare Currie v Palmerston North City Council [2022] NZHC 2909, (2022) 24 ELRNZ 340 at [57]–[59]; and Body Corporate 97010 v Auckland City Council [2000] 3 NZLR 513 (CA) at [50].
of pt 5 of the BSA, and that it is the manner in which issues are generally approached under the Resource Management Act.120
[171] Mr Davies submits that a site-led programme as a matter of relief was within the scope of what was sought before the Environment Court. Mr Evans was in effect seeking a separate programme for specific land, with Stronvar being of principal concern, and that the Court was specifically invited to consider alternative relief.
[172] As to natural justice, Mr Davies reiterates that at the request of the Council, Mr Evans’ application was required to be served on persons who submitted on the Council’s proposal, none of whom joined the proceeding. Mr Davies says also that the relief sought by Mr Evans relates only to the 650ha of land for which he is a trustee. Mr Davies says therefore that no issues of natural justice then arise.
Discussion
[173] I am satisfied that the Environment Court did not act outside of its jurisdiction in terms of the relief it granted. I do not consider that the Council’s interpretation of the BSA is correct, in suggesting that the Environment Court is not permitted on an application pursuant to s 76 to grant the relief it did.
[174] I am unable to read in a limitation to the Environment Court’s jurisdiction under s 76 that any relief granted had to be within scope of the Council’s proposal to amend the regional pest management plan and the resulting proposed amendments. Nor am I satisfied that issues of natural justice have arisen.
[175] I have concluded above that the inclusion of a site-led programme with an intermediate outcome of progressive containment is permissible, in that a site-led programme for Stronvar would not be inconsistent with a region-wide intention for progressive containment. I have also concluded that the Environment Court did not err in law by asserting a power under s 76 to make any changes it wished to the 2018 RPMP in a general sense. My view is that the Environment Court properly limited its conclusions to the proposed amendments to the 2018 RPMP concerning pest conifers.
120 Option 5 Inc v Marlborough District Council (2009) 16 ELRNZ 1 (HC) at [15].
Conclusion
[176] I conclude that the Environment Court did not grant relief beyond its jurisdiction.
Summary of conclusions
[177] In summary, I have concluded that the Environment Court did not err in law or apply the wrong legal test by:
(a)failing to refer to s 100D or state that it was reading in the necessary modifications to ss 66 to 78 of the BSA;
(b)considering whether the process requirements for a plan under ss 70 to 73 of the BSA were complied with, because it did not do so;
(c)concluding that it must be satisfied that there has been adequate consultation in relation to the amendments it considers that the Council should make to the 2018 RPMP, because it did not do so;
(d)granting relief providing for a site-led programme for Stronvar, where containment or reduction remain as the identified objective;
(e)wrongly applying ss 70 and 71 of the Act and cl 6 of the 2015 NPD, because it did not do so;
(f)concluding the insertion of an “other measure” within the existing framework of the progressive containment programme is an option for providing for the relief granted; or
(g)granting relief beyond its jurisdiction.
[178] Because I have concluded that none of the Council’s alleged errors of law are made out, I do not consider it necessary to address the Council’s submissions on materiality and relief. Nor is it necessary to consider Mr Evans’ cross-appeal.
Mr Davies accepted that the Court should only do so in the event that the Council was wholly or partially successful.
Result
[179]The Council’s appeal is dismissed. Mr Evans’ cross appeal is also dismissed.
[180] Some time has passed since this matter was heard and determined in the Environment Court. I direct that this judgment be provided to the Environment Court so that it may make directions for the further progression of this matter.
Costs
[181] Mr Evans is entitled to costs in this Court. If counsel are unable to agree costs, Mr Evans should file a memorandum of no more than five pages together with a schedule within fifteen working days. The Council may then file a memorandum of the same length within a further ten working days. Any brief reply from Mr Evans is to be filed in a further five working days. I will then determine costs on the papers.
McQueen J
Solicitors:
Wynn Williams, Christchurch for Appellant Gascoigne Wicks, Blenheim for Respondent
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