Environmental Law Initative v Canterbury Regional Council
[2025] NZHC 2515
•1 September 2025
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2024-409-409
[2025] NZHC 2515
BETWEEN THE ENVIRONMENTAL LAW INITATIVE
Applicant
AND
CANTERBURY REGIONAL COUNCIL
First Respondent
MHV WATER LIMITED
Second Respondent
Hearing: 19 and 20 May 2025 Appearances:
A McDonald and K Calder for Applicant
P A C Maw and K T Dickson for First Respondent
B G Williams and R E Robilliard for Second RespondentJudgment:
1 September 2025
JUDGMENT OF MANDER J
This judgment was delivered by me on 1 September 2025 at 3 pm pursuant to Rule 11.5 of the High Court Rules 2016
Registrar/Deputy Registrar Date: .
THE ENVIRONMENTAL LAW INITATIVE v CANTERBURY REGIONAL COUNCIL & ANOR [2025]
NZHC 2515 [1 September 2025]
Contents
Background........................................................................................................... [4]
Planning framework [7]
The discharge consent......................................................................................... [13]
Description of the affected environment............................................................. [19]
Ground water [20]
Surface water [21]
The discharge consent decision........................................................................... [24]
Grounds for judicial review................................................................................. [29]
The notification decision..................................................................................... [31]
The legislative framework [32]
Recommendation analysis [33]
Outcome of the decision [37]
ELI’s challenge to the notification decision [38]
The respondents’ position [41]
Council’s request for further information [42]
Analysis [62]
Conclusion [73]
Alleged failure to consider special circumstance as a mandatory relevant consideration [75]
Analysis [81]
Conclusion [91]
Failure by the Commissioner to consider impact on drinking water supplies [92]
Alleged misapplication of s 107 of the RMA...................................................... [97]
Relevant statutory provisions [100]
The challenge [103]
The Council’s position [110]
MHV’s position [111]
Analysis [115]
Conclusion [134]
Alleged failure to consider relevant plans and policies..................................... [137]
ELI’s argument [139]
The NZCPS [141]
The RCEP [152]
Canterbury Land and Water Regional Plan [156]
The respondent’s argument [161]
The coastal environment [162]
To discharge [166]
MHV’s application considered under different planning framework [171] Different factual findings [176]
Analysis [187]
Conclusion [203]
Failure to revoke other decisions....................................................................... [212]
Conclusion [240]
Relief................................................................................................................. [241]
Overall conclusions............................................................................................ [254]
Result................................................................................................................. [259]
Costs.................................................................................................................. [260]
[1] MHV Water Ltd (MHV) is a farmer owned cooperative that operates an irrigation scheme in the Hinds/Hekeao Plains area of Canterbury. It receives and supplies water to its shareholders. Pursuant to the decision of an independent hearings commissioner (the Commissioner) acting under delegated authority, the Canterbury Regional Council (the Council) granted MHV’s application for a resource consent to discharge nutrients onto or into land from farming activities in respect of properties located between the Hinds/Hekeao Plains area (the discharge consent).
[2] The Environmental Law Initiative (ELI)1 has applied to judicially review the Council’s decisions regarding its notification of the application for the discharge consent and its substantive decision to grant the consent. It claims the Council made errors of law in making its notification decision and failed to comply with the requirements of the Resource Management Act 1991 (the RMA). It also alleges the Council failed to consider and apply relevant planning instruments. As a further cause of action, it claims the Council erroneously failed to revoke the discharge consent in the wake of a decision of this Court setting aside a similar consent issued in respect of another irrigation scheme.2 ELI seeks declarations and orders quashing the notification and discharge decisions, and a declaration that its decision not to revoke MHV’s consent was unlawful.
[3] The Council and MHV maintain the notification decision was made in accordance with the RMA. In respect of its decision to grant the discharge consent, the Council abides the Court’s decision regarding whether it correctly applied s 107 of the RMA. However, both respondents submit there are important differences between this case and the circumstances of the other invalidated discharge consent. MHV contends the discharge consent was lawfully issued and supports the Council’s opposition to ELI’s claim that it acted unlawfully by not revoking the consent.
1 The Environmental Law Initiative is an incorporated charitable trust. Its charitable purposes are stated as including the preservation, conservation, protection and enhancement of natural and cultural resources in order to prevent their harm, misuse, depletion, unsustainable use and destruction. ELI describes its main activities as researching and reviewing environmental legislation and policy, and funding scientific research. It states its specialist areas include law and policy affecting New Zealand’s wetlands and freshwater.
2 Environmental Law Initiative v Canterbury Regional Council [2024] NZHC 612 [ALI decision].
Background
[4] MHV is an irrigation scheme as defined under the Canterbury Land and Water Regional Plan (the Land and Water Regional Plan).3 It receives water from the Rangitata Diversion Race, operated by the Rangitata Diversion Race Management Ltd (RDRML), which it on-supplies to its shareholders. MHV in turn has water supply agreements with its shareholders, who are required to comply with the rules and obligations of the irrigation scheme
[5] In May 2014, RDRML was granted resource consent for a five-year period to discharge contaminants arising from farming activities, including from properties supplied with water by MHV and another irrigation scheme, Ashburton Lyndhurst Irrigation Ltd (ALI). It was subsequently determined that each of these irrigation schemes should have their own separate discharge permits. As an interim step towards that objective, shortly before the expiry of RDRML’s consent, MHV and ALI jointly applied for a replacement consent. This was granted in May 2018, although only for 12 months in anticipation that both irrigation schemes would seek individual consents, which they did later that year.
[6] It is the subsequent granting of MHV’s discharge consent application that is the subject of this proceeding. Following the Council’s decision to notify MHV’s application on a limited basis to one party, Te Rūnanga o Ngāi Tahu (TRONT), the consent application was heard by the Commissioner in December 2020 and a decision issued in April 2021.4
Planning framework
[7] The application for the discharge consent was made pursuant to the Land and Water Regional Plan, which provides objectives, policies and rules concerning the
3 Environment Canterbury Canterbury Land and Water Regional Plan [Land and Water Regional Plan] at r 2.9. Under the Land and Water Regional Plan, an irrigation scheme “means a trust, company, incorporated society or other legal entity that holds a resource consent to take and supply water to more than one property”. Such schemes are common in Canterbury as they allow its landowning shareholders to achieve economies of scale in relation to the infrastructure, consenting, monitoring and auditing required to irrigate the land.
4 Resource consent application CRC 185857—MHV Water Ltd v Canterbury Regional Council
Report and Decision of the Hearing Commissioner (21 April 2021) [discharge consent decision].
management of water quality and activities that involve the discharge of contaminants from farming activities onto or into land that may enter water. The plan specifically provides for irrigation schemes, pursuant to r 5.62.
[8] The plan enables an irrigation scheme to apply for resource consent to discharge nutrients onto or into land in circumstances that may result in a contaminant entering water. Such applications are assessed as a discretionary activity.
[9] Subject to the fulfilment of certain prerequisites, the Land and Water Regional Plan provides that the use of land for a farming activity is a permitted activity for properties managed by an irrigation scheme with a resource consent.5 By an irrigation scheme securing a resource consent to discharge nutrients, the land use for farming activities of all its shareholders is also able to be authorised, and the irrigation scheme is enabled to work with individual farms to allocate water use and nutrient discharge allowances in accordance with the requirements of the scheme’s consent conditions.
[10] At the time MHV’s application was lodged, a significant change to the Land and Water Regional Plan had become operative. Plan Change 2 amended section 13 Ashburton” (s13) of the Land and Water Regional Plan by introducing catchment- specific freshwater outcomes, limits and water quality and quantity rules for the Hinds/Hekeao Plains area within which the MHV irrigation scheme operates. These “sub-region” provisions of the Land and Water Report Plan contain specific policies designed to improve water quality and quantity, and timeframes and methods for reaching reduced nutrient loss.
[11] A key rule for the implementation of these policies is r 13.5.22, which, in a similar way to r 5.62, provides for irrigation schemes to apply for discharge permits for collective nutrient losses from shareholder farms in circumstances where the contaminant may enter water in the Lower Hinds/Hekeao Plains area. The rule imposes additional conditions on a discharge permit that operates in this area. These include limitations on nitrogen losses, restrictions on the redistribution of nitrogen losses to other land, and a requirement that the application for a discharge permit be
5 Land and Water Regional Plan, above n 3, rr 5.41 and 5.62.
accompanied by a legally binding obligation to achieve future prescribed nitrogen loss reductions, which will run with the land.6
[12] Because MHV operates in the Lower Hinds/Hekeao area, r 13.5.22 prevails over the general rule, r 5.62, as do all the sub-region rules in s 13 where they have application to identified sub-regions such as the Hinds/Hekeao Plains area.
The discharge consent
[13] The discharge consent which expires on 31 December 2030 “authorised the discharge onto or into land where contaminants may enter water arising from farming activities” on properties listed in a schedule to the consent, the owners of which are shareholders in MHV. These properties are located within the area described as “the Command Area”, as shown on the annexed plan referred to in the consent.
[14] The MHV Command Area is located between the Hakatere/Ashburton and Rangitata Rivers and encompasses the entire Hinds/Hekeao Plains area. MHV farms currently total approximately 58,306 hectares within a total Command Area of 138,000 hectares. Farming activities within this area include arable farming, commercial vegetable production, dairy farming, dairy support, horticultural farming, intensive winter grazing, pastoral farming, and other agricultural activities.
[15] Approximately 127,000 hectares of the scheme’s Command Area is within the Lower Hinds/Hekeao Plains area, which contains the middle and lower reaches of the Hinds/Hekeao River as it flows across the Canterbury Plains and contains more than 30 spring-fed lowland water bodies by the coast. Many of the water bodies in the Lower Hinds/Hekeao Plains area are described by Claire Boardman, a senior legal researcher for ELI, as remnants of what was once an expansive wetlands. Approximately 11,000 hectares of the Command Area is within the Upper Hinds/Hekeao Plains area which includes the foothills and basins that drain into the north and south branches of Hinds/Hekeao River.7 However, at the time the discharge
6 Rule 13.4.15.
7 Plan CRC 185857AA (the Command Area)—see appendix A.
application was made there were no properties within the Upper Hinds/Hekeao Plains area irrigated with water supplied by MHV.
[16] The discharge consent provides for nitrogen discharge allowances (NDAs) which set the total amount of nitrogen that can be discharged across the whole scheme. As noted, the discharge consent authorises discharges onto or into land where contaminants may enter water arising from farming activities on MHV properties. MHV is permitted to add or remove properties from the property schedule that is included in the consent, so long as the NDAs are not exceeded. Such changes can occur without further regulatory approval or assessment. However, an updated property schedule is required to be provided to the Council each year should there be any changes, together with an updated map and nitrogen calculation.
[17] The discharge consent is subject to a range of conditions for the purposes of monitoring and managing the effects of nitrogen from MHV shareholder properties. These include compliance with the NDAs and a requirement that a 15 per cent reduction in nitrogen losses be achieved from 1 January 2025 and a reduction in nitrogen losses of 25 per cent be achieved from 1 January 2030.8 This is to be done in conjunction with adherence to and implementation of “good management practices” prescribed by r 13.4.15 of the Land and Water Regional Plan.
[18] Conditions of the consent include the preparation, implementation and review of an environmental management strategy detailing how MHV is to implement environmental objectives and targets for all its properties to ensure compliance with the resource consent, and a detailed surface and groundwater monitoring programme. There is a requirement that all farmers within the MHV scheme prepare a farm environment plan which is required to be supported by an audit process to ensure environmental outcomes are met and conditions that address and avoid effects on community drinking water supplies. Various obligations are also imposed to consult with the local hapū, Te Rūnanga O Arowhenua.
8 Rule 13.4.13(b)(i) and (ii).
Description of the affected environment
[19] For the purposes of her decision, the Commissioner adopted the description of the affected environment set out in the Assessment of Environmental Effects (AEE) that accompanied the application. The Council also prepared reports, provided pursuant to s 42A of the RMA.9
Ground water
[20] Water quality in the Hinds/Hekeao Plains area has been severely impacted by land use changes. The area was noted in the s 42A report as having some of the highest concentrations of groundwater nitrate contamination in the Canterbury region. Long term monitoring of bores indicates an increase in nitrate-nitrogen concentrations and a decrease in groundwater levels from 2000. It was reported to the Commissioner that water quality data from 21 bores within the area of MHV’s scheme showed an overall decline in water quality when considering nitrate-nitrogen concentrations, and the Council’s experts expressed concern that this declining trend would continue into the future. It was also noted that, towards the coast, groundwater levels are close to the surface and that groundwater discharges into coastal springs as well as offshore.
Surface water
[21] In relation to surface water, the s 42A report noted that the Rangitata and Hakatere/Ashburton Rivers are braided rivers that provide outstanding habitat for many rare birds, fish, plants and other species, as well as recreational values. The s 42A report further notes that the Rangitata River is recognised as having a nationally and internationally outstanding fishery with introduced salmon being the most important fishery. Sixteen native fish species have also been identified in the lower Rangitata River as providing a large area of significant bird habitat.
[22] The s 42A report noted that in the early 2000s the lowland waterways of the area were considered to be the healthiest lowland stream communities in Canterbury,
9 Resource Management Act 1991 [RMA], s 42A(1) provides:
At any reasonable time before a hearing or, if no hearing is to be held, before the decision is made, a local authority (as local authority is defined in section 42(6)(b)) may require preparation of a report on information provided on any matter described in section 39(1) by the applicant or any person who made a submission.
providing high quality habitat supporting abundant and diverse macroinvertebrate communities. However, in more recent years the report records there has been a notable decline in stream health indicators such as the quantitative macroinvertebrate community index, along with deteriorating water quality, especially increasing nitrate concentrations.
[23] It was noted in the AEE that a number of coastal freshwater wetlands/hāpua are located along the coastline. The wetlands are characterised by small coastal dongas that may provide some habitat opportunities for freshwater species. It was also recorded in the s 42A report that small hāpua and coastal lagoons are often impounded behind gravel beaches along the coast.
The discharge consent decision
[24] The Commissioner identified the key concern when assessing the discharge consent application was the issue of ground and surface water quality in the lower catchment of the Hinds/Hekeao Plains area which had rapidly declined since 2000, as a result of increasing nitrate-nitrogen concentrations. After reviewing the evidence, the Commissioner observed that the deleterious impact of agricultural activities in the catchment and the significant adverse effects on the downstream receiving environment were not disputed. The Commissioner found it was clear that “drastic and permanent reductions of nitrogen inputs” were required to address ground and surface water quality and ecological degradation. The Commissioner agreed with the Council’s evidence that continued intensification of farming means that “nitrate- nitrogen concentrations are unlikely to have reached an equilibrium in groundwater”.10
[25] The Commissioner also noted that a key area of uncertainty was how quickly nitrate-nitrogen concentrations would be likely to reduce in response to the implementation of good management practice, and to what extent and how quickly advanced mitigation actions would need to be implemented to meet water quality targets.11 It was against that background that the staged reductions of nitrogen losses proposed as part of the discharge consent were adopted. The Commissioner stated:
10 At para 80.
11 At para 77.
82. The Applicant has responded to concerns regarding uncertainty by reducing the consent terms sought to 10 years, amending the EMS requirements for groundwater and surface water monitoring, including a requirement for implementing a Remediation and Response Plan in the event of any deterioration, and including a requirement for a review after five years if the expected reductions are not met. I find that these measures are fundamental to ensuring there is no further environmental deterioration; and effectively give the Applicant five years to prove the reductions proposed are sufficient to demonstrate that measurable improvements in the receiving environment will be made within the 10 year consent term.
[26] The Commissioner accepted there may be further reductions in water quality in “the short to medium term before nitrate-nitrogen concentrations reach an equilibrium”, but the imposition of the proposed condition would result in a continuous improvement in water quality over the 10 year term of the consent.12
[27] The Commissioner expressly addressed s 107 of the RMA, noting that the provision prevents a consent authority from granting a discharge permit when it is likely to give rise to specified effects in the receiving waters. In addressing that issue, the Commissioner found:
110.The evidence before me shows that past and current land use practices in the command area have resulted in significant adverse cumulative effects on aquatic life in the receiving waters. Without the Applicant’s commitment to significant nutrient reductions in line with the [Land and Water Regional Plan] and continuous improvement, I consider s 107 would prevent me granting consent. However, I am satisfied that with the imposition of the proposed conditions, cumulative effects on aquatic life will be reduced and with time remedied.
[28]The Commissioner’s overall conclusion was:
115.The previous consent to discharge contaminants within the Scheme’s command area was granted on the basis that it would avoid significant adverse effects and mitigate adverse environmental effects. This has proven to be untrue and land use activities have resulted in significant adverse cumulative effects on water quality and ecological values.
116.The consent is granted on the basis that the significant adverse cumulative effects on the receiving environment will be reduced and there will be measurable environmental improvements within the consent term. It also gives the Applicant sufficient time to demonstrate that land use practices can change to significantly reduce nutrient inputs and to address environmental degradation. It is a significant step in the right direction and it is now up to the Applicant
12 At para 84.
to demonstrate that the necessary reductions can be made and are sufficient to result in environmental improvements. I consider this will be challenging, but achievable.
Grounds for judicial review
[29] ELI brings its application for judicial review on four bases which, it is submitted, constitute errors of law that materially affected the decision to grant the discharge consent. The four bases are as follows:
(a)The Council’s decision regarding the notification of MHV’s consent application was made in error because:
(i)there was a failure to publicly notify the consent application in accordance with the requirements of 95C of the RMA; and
(ii)failed to properly consider whether special circumstances existed that warranted broader notification.
(b)The Commissioner erred in her application of s 107 of the RMA by failing to recognise that her finding of “significant adverse cumulative effects on aquatic life in the receiving waters” meant she could not grant the consent unless satisfied those effects were not likely to continue as a result of the consent being granted. Alternatively, in assessing whether significant adverse effects on aquatic life would continue as a result of granting the discharge consent, the Commissioner took into account an irrelevant matter, namely the proposed staged reduction in nitrogen loads over the period of the consent.
(c)Despite the coastal environment being affected by the discharge consent, the Commissioner failed to have regard to relevant provisions of planning instruments that concerned the coastal environment, which was a mandatory statutory requirement of s 104 of the RMA. In particular, the Commissioner did not consider or apply:
(i)relevant provisions of the New Zealand Coastal Policy Statement, including its directive “avoid” policies;
(ii)the Regional Coastal Environment Plan for the Canterbury region; and
(iii)policy 4.81 of the Land and Water Regional Plan.
(d)The Council erred in law by deciding not to take steps to revoke MHV’s discharge consent after a consent issued in respect of a comparable Canterbury irrigation scheme had been determined to have been unlawfully granted.13
[30] On the basis of these alleged errors, ELI sought declarations and orders quashing the notification decision and the grant of the discharge consent.
The notification decision
[31] On 10 September 2020, the Council determined that MHV’s application for the discharge consent would be notified on a limited basis (the notification decision). That decision was made by its principal consent planner, who agreed with recommendations set out in a memorandum (the recommendation memorandum) prepared by two consultant planners (the consent officers) tasked with examining the issue. By that process, the principal consent planner, acting under delegated authority from the Council, decided the application for the discharge consent would not be publicly notified, but notified on a limited basis to TRONT. ELI argued the Council, in making its notification decision, erred in law and that its notification decision should be quashed.
The legislative framework
[32] Sections 95A and 95B of the RMA set out the steps a consent authority must follow when determining whether to publicly notify (s 95A) or give limited
13 ALI decision, above n 2.
notification (s 95B) of an application for a resource consent. It is necessary to set out the relevant provisions in full:
95A Public notification of consent applications
(1)A consent authority must follow the steps set out in this section, in the order given, to determine whether to publicly notify an application for a resource consent.
Step 1: mandatory public notification in certain circumstances
(2)Determine whether the application meets any of the criteria set out in subsection (3) and,—
(a)if the answer is yes, publicly notify the application; and
(b)if the answer is no, go to step 2.
The criteria for step 1 are as follows:
(a)the applicant has requested that the application be publicly notified:
(b)public notification is required under section 95C:
(c)the application is made jointly with an application to exchange recreation reserve land under section 15AA of the Reserves Act 1977.
Step 2: if not required by step 1, public notification precluded in certain circumstances
(4)Determine whether the application meets either of the criteria set out in subsection (5) and,—
(a)if the answer is yes, go to step 4 (step 3 does not apply); and
(b)if the answer is no, go to step 3.
The criteria for step 2 are as follows:
(a)the application is for a resource consent for 1 or more activities, and each activity is subject to a rule or national environmental standard that precludes public notification:
(b)the application is for a resource consent for 1 or more of the following, but no other, activities:
a controlled activity:
(ii)[Repealed]
(iii)a restricted discretionary, discretionary, or non- complying activity, but only if the activity is a boundary activity.
(iv)Repealed]
(6)[Repealed]
Step 3: if not precluded by step 2, public notification required in certain circumstances
(7)Determine whether the application meets either of the criteria set out in subsection (8) and,—
(a)if the answer is yes, publicly notify the application; and
(b)if the answer is no, go to step 4.
(8)The criteria for step 3 are as follows:
(a)the application is for a resource consent for 1 or more activities, and any of those activities is subject to a rule or national environmental standard that requires public notification:
(b)the consent authority decides, in accordance with section 95D, that the activity will have or is likely to have adverse effects on the environment that are more than minor.
Step 4: public notification in special circumstances
(9)Determine whether special circumstances exist in relation to the application that warrant the application being publicly notified and,—
(a)if the answer is yes, publicly notify the application; and
(b)if the answer is no, do not publicly notify the application, but determine whether to give limited notification of the application under section 95B.
95B Limited notification of consent applications
(1)A consent authority must follow the steps set out in this section, in the order given, to determine whether to give limited notification of an application for a resource consent, if the application is not publicly notified under section 95A.
Step 1: certain affected groups and affected persons must be notified
(2)Determine whether there are any—
(a)affected protected customary rights groups; or
(b)affected customary marine title groups (in the case of an application for a resource consent for an accommodated activity).
(3)Determine—
(a)whether the proposed activity is on or adjacent to, or may affect, land that is the subject of a statutory acknowledgement made in accordance with an Act specified in Schedule 11; and
(b)whether the person to whom the statutory acknowledgement is made is an affected person under section 95E.
(4)Notify the application to each affected group identified under subsection (2) and each affected person identified under subsection (3).
Step 2: if not required by step 1, limited notification precluded in certain circumstances
(5)Determine whether the application meets either of the criteria set out in subsection (6) and,—
(a)if the answer is yes, go to step 4 (step 3 does not apply); and
(b)if the answer is no, go to step 3.
(6)The criteria for step 2 are as follows:
(a)the application is for a resource consent for 1 or more activities, and each activity is subject to a rule or national environmental standard that precludes limited notification:
(b)the application is for a controlled activity (but no other activities) that requires a resource consent under a district plan (other than a subdivision of land).
Step 3: if not precluded by step 2, certain other affected persons must be notified
(7)In the case of a boundary activity, determine in accordance with section 95E whether an owner of an allotment with an infringed boundary is an affected person.
(8)In the case of any other activity, determine whether a person is an affected person in accordance with section 95E.
(9)Notify each affected person identified under subsections (7) and (8) of the application.
Step 4: further notification in special circumstances
(10)Determine whether special circumstances exist in relation to the application that warrant notification of the application to any other persons not already determined to be eligible for limited notification under this section (excluding persons assessed under section 95E as not being affected persons), and,—
(a)if the answer is yes, notify those persons; and
(b)if the answer is no, do not notify anyone else.
Recommendation analysis
[33] In addressing the issue of public notification under s 95A, the consent officers concluded that none of the criteria set out under step 1 required mandatory public notification. ELI disputes that finding. The consent officers then determined, under step 2, that the application for the discharge consent was for an activity that is subject to a rule that precludes public notification. That rule is r 13.5.22 of the Land and Water Regional Plan, which provides:
13.5.22The discharge of nutrients onto or into land in circumstances that may result in a contaminant entering water in the Lower Hinds/Hekeao Plains area that would otherwise contravene s15(1) of the RMA is a discretionary activity, provided the following conditions are met:
1.The applicant is an irrigation scheme or a principal water supplier, or the holder of the discharge permit or be an irrigation scheme or a principal water supplier; and
…
Notification
Pursuant to section 95A and 95B of the RMA an application for resource consent under this rule will be processed and considered without public or limited notification.
[34] In the absence of step 3 applying because of the preclusion, the consent officers proceeded to consider step 4 (special circumstances). The consent officers concluded there were no special circumstances that existed that warranted public notification of the discharge consent application. As a result, it was determined that public notification was not required under s 95A.
[35] Turning to the question of limited notification under s 95B, it was noted that the Hakatere/Ashburton and Rangitata Rivers are both the subject of a statutory acknowledgement under the Ngāi Tahu Claims Settlement Act 1998, which is an Act specified in sch 11 of the RMA. As a result, the officers concluded they needed to consider, under step 1, whether TRONT is an affected person under s 95E of the RMA. That provision provides that a person will be so designated if a consent authority
decides the activities’ adverse effects on the person are minor or more than minor, but not less than minor.14
[36] After noting the water quality in the receiving environment to be poor and likely directly attributable to agricultural activities, including those by MHV’s shareholders’ properties, and the high cultural values of the receiving environment, the effects on TRONT were assessed as being more than minor. Having made that determination, it was recommended the application be notified on a limited basis to TRONT.
Outcome of the decision
[37] Upon receipt of the consent planners’ memorandum, the principal consent planner adopted those officers’ recommendations and made a notification decision in the following terms:
I have read the application and report regarding this proposal and considered all the relevant matters. I agree with the officers[’] recommendation that public notification is not mandated under Step 1 of s95A and is precluded under the r 13.5.22 in the Land and Water Regional Plan (Step 2). I note the officers have concluded the adverse effects are more than minor on Te Rūnanga O Ngāi Tahu, and I agree with that assessment. Further, after reading the application I consider if it was not for the preclusion at Step 2, this application would require public notification. Given the preclusion however, I cannot publicly notify this application unless Special Circumstances apply (Step 4). I note that whether special circumstances apply is a high test, and I agree with the officer that it is not met in this case.
Turning to consideration of limited notification (s95B), I agree this proposal will cause adverse environmental effects on the statutory acknowledgement areas listed, namely the Hakatere/Ashburton and Rangitata Rivers. I agree that despite negotiations taking place with the relevant iwi and rūnanga, no written approval has been provided and because of this deem Te Rūnanga O Ngāi Tahu an affected party pursuant to Step 1 of s95B RMA. I note that limited notification to other parties is precluded (under Step 2 of s95B) by r 13.5.22. I also note that Special Circumstances do not apply in regard to Step 4 of s95B RMA.
In conclusion, having considered s95A to 95C of the RMA, and under the authority delegated to me by Council, I have decided under s95B to limited notify the application to Te Rūnanga O Ngāi Tahu because the effects of the activity on the statutory acknowledgement areas Hakatere/Ashburton River and Rangitata River, are likely to be minor or more than minor (but not less than minor) as outlined in the memo above.
14 Section 95E(1).
ELI’s challenge to the notification decision
[38] ELI alleges the Council failed to correctly determine that the application met the criteria for public notification under step 1, namely, that public notification was required under s 95C of the RMA, which provides:
95CPublic notification of consent application after request for further information or report
(1)A consent authority must publicly notify an application for a resource consent (see s 95A(2) and (3)) if—
(a)it has not already decided whether to give public or limited notification of the application; and
(b)subsection (2) or (3) applies.
(2)This subsection applies if the consent authority requests further information on the application under s 92(1), but the applicant—
(a)does not provide the information before the deadline concerned; or
(b)refuses to provide the information.
…
(4) This section applies despite any rule or national environmental standard that precludes public or limited notification of the application.
[39] ELI submitted the conclusion in the recommendation memorandum that the application did not meet any of the step 1 criteria for mandatory public notification was incorrect. Section 95C provides that it is mandatory for a consent authority to publicly notify a resource consent application where it has requested further information under s 92(1) of the RMA but the applicant refuses or does not provide the information. It is submitted the Council requested further information on the application, but that MHV did not provide this further information or refused to do so.
[40] ELI further alleged that the Council failed to properly consider whether special circumstances existed that warranted broader notification. ELI argued the Council needed to consider the potential effects of the proposed activity on private and community drinking water sources, and inform itself of those risks when assessing whether there were special circumstances that warranted broader notification. It is
alleged the Council failed to do this and failed to take into account considerations relevant to its assessment under ss 95A and 95B of the RMA.
The respondents’ position
[41] In response to these challenges, both respondents submitted that MHV had adequately responded to the request for further information and that the Council had all the necessary information available to it. Further, that it was for the Council to determine whether its information request had been satisfactorily met; that it did have regard to s 95C in making its notification decision; and that it had reasonably determined that public notification was not required. Similarly, it is argued the Council’s conclusion there were no special circumstances arising from issues regarding drinking water was reasonably available to it, and it was properly placed to make that assessment.
Council’s request for further information
[42] On 11 March 2019, the Council requested, pursuant to s 92(1) of the RMA, that MHV provide it with further information regarding freshwater bodies and wetlands, and the effects on community drinking water supplies.15 The Council requested:
(c)Please provide an assessment of the effects of the proposed discharge(s) on:
i.freshwater bodies within and adjacent to the scheme command area. This should include, but is not limited to an assessment against the freshwater outcomes outlined in tables 1(a), 1(b), 13(a) and 13(g) of the Land and Water Regional Plan; and
ii Wetlands within and adjacent to the scheme command area.
[43] The Council also sought information regarding the risk to community drinking water supplies and, in particular, requested MHV to provide a “sufficient assessment
15 Section 92 States:
92 Further information, or agreement, may be requested
(1) A consent authority may, at any reasonable time before the hearing of an application for a resource consent or before the decision to grant or refuse the application (if there is no hearing), by written notice, request the applicant for the consent to provide further information relating to the application.
of potential effects on community drinking water supplies (CDWS), arising from the discharge of contaminants within the suppl[ies’] protection zones”. The Council particularised its request by listing a series of assessments to be included in MHV’s response.16
[44] ELI submitted that MHV refused to provide this information. It referred to a self-described s 92 report furnished by MHV of 9 April 2019, which recorded that “… MHV is not proposing to provide a detailed assessment of (as referred to in the question) freshwater bodies within and adjacent to the scheme command area and adjoining wetlands sites”. ELI noted that, later in July of that year, the Council recorded that this request had been “addressed but not provided”.
[45] In respect of the Council’s request for further information regarding drinking water, it was observed that MHV had noted in its AEE that nitrates are “[c]ontaminants of particular concern for community drinking water supplies” and that it had identified two community drinking water protection zones directly proximate to MHV farms. These were “Carew School” and “Hinds”. It was noted that no up to date groundwater quality data was provided in respect of either drinking water supply.
[46] ELI submitted the s 92 report provided by MHV in April 2019, in response to the Council’s request for further information, did not address the matters raised by the Council. It merely noted that two community drinking water supplies had been identified “that intersected with properties under the MHV consent”, and that “an assessment of environmental effects on community drinking water supplies was included in the original AEE report”. ELI submitted that had the content of that earlier
16 Particular information sought included: groundwater flow direction in relation to the flow direction used to delineate the protection zone; well head protection and potential for surface runoff if the well is in close proximity to stock grazing areas; existing water quality at each bore and any known water quality issues; details regarding the current treatment of the community water supply for each bore, if any; detailed description of the land use within each protection zone; details of any land use intensification, such as increases in stock numbers, seasonal grazing regime, fertiliser or effluent application within each protection zone (this being noted should include any future changes that may occur through the duration of the proposed consent); details of specific mitigation proposed, or already in place to prevent and/or reduce potential effects on water quality at the bore (e.g. removing stock from land within protection zone, providing alternative drinking water supply if bore becomes contaminated, etc); and a justified summary of the potential risk of the land use activity to the quality of the water supplied by each bore.
report been sufficient for the Council’s purposes it would not have sought the further information about drinking water supplies.
[47] As at early July 2020, MHV’s application had been placed on hold. This is evidenced by an email from the Council to TRONT and an environmental consultancy firm acting for MHV stating that, at MHV’s request, its applications remained on hold while it addresses matters of concern to the Council, including the effects on community drinking water protection zones and cumulative effects on water quality. The email notes that the next steps will be to continue work on outstanding matters to address the Council’s concerns regarding effects on the environment.
[48] The following month, MHV wrote to the Council to record there had been discussion with the Council’s groundwater scientists as to how to assess effects from the nutrient discharge application on community drinking water supplies. It was noted that MHV and the scientists had “finally agreed on a risk-based approach”. The letter attached three risk assessments undertaken in respect of the three MHV properties that were located within a community drinking water protection zone. However, ELI submitted these assessments did not include the substantive information sought by the Council under s 92 of the RMA back in March 2019.
[49] After the notification decision was made in September 2020, a s 42A report dated 29 October 2020 was received. ELI, in support of its argument, noted this report recorded that MHV had carried out acceptable risk assessments in regard to the effects of discharge on community drinking water supplies and that the authors agreed with the assessments. However, it was emphasised the authors also recorded there was no certainty regarding the Carew School supply meeting drinking water standards at all times under the current level of treatment.
[50] ELI submitted this uncertainty is not surprising in the absence of relevant quantitative information having been provided as to the quality of the Carew School water supply in particular, nor any current data about either that water supply or the Hinds Township supply. It noted a further observation by the report writers that nitrate, which is a contaminant that does not decay, “needs to be managed over the entire capture zone for the supply wells, often extending far upgradient from the community
drinking water supply protection zones”, and that, even if all the land within those zones was retired from farming, there would still be a risk that nitrate nitrogen may exceed drinking water standards in the future (if not already) from sources further away.
[51] In reliance on those observations and caveats in the s 42A report, ELI submitted this ongoing uncertainty as to the safety of community water supplies was the very type of “highly problematic situation with public health effects” that was intended to be addressed by mandatory public notification under s 95C of the RMA. It was submitted that a statutory purpose of that legislation includes providing for the use of resources in a way that, among other things, enables people and communities to provide for their health and safety, and that the Council’s failure to recognise the requirement to publicly notify the application had led to an erroneous notification decision that should be set aside.
[52] In response to this challenge to the notification decision, both the Council and MHV have emphasised that it is important to appreciate the ongoing and iterative nature of the process in which they were engaged that continued over a 15 month period between March 2019, when the Council made its initial request for further information, and its notification decision on 10 September 2020. It was submitted that, as a result of that process, the Council’s engagement with MHV resolved its information requests.
[53] MHV replied to the Council’s request for an assessment of the effects of the proposed discharges on freshwater bodies and wetlands in its s 92 report of 9 April 2019. It stated that in its view the nutrient limits set out in the consent conditions, requiring significant reductions to the scheme’s nitrogen load, in combination with the required environmental management strategy and farm environment plan would, in combination, ensure that, “at a local and catchment scale”, any effects would be appropriately managed. MHV advised it was not proposing to provide a detailed assessment of freshwater bodies (as referred to in the question asked) within and adjacent to the scheme’s Command Area and adjoining wetland sites. However, the “huge” nitrogen loss reductions required by the MHV scheme was emphasised.
[54] In relation to community drinking water supplies, MHV advised that it did not intend to undertake a full assessment, but that the procedures and risk assessment process set out in the Environment Management Strategy required as a condition of the discharge permit would ultimately be the core means by which effects on community drinking water protection zones would be appropriately managed. This would involve identifying the possible risks and developing a strategy to manage that risk in accordance with the process set out in the s 92 report. The level of risk rating would then be used to determine the applicable actions for the management on site. It was noted that all land within a community drinking water protection zone would need to demonstrate compliance with the Council’s permitted activity rules or applicable resource consent, regardless of the level of risk assigned to the site.
[55] A second request for further information was issued by the Council in May 2019, after MHV’s s 92 report had been received. Over the following months, Council staff met with representatives of MHV and various documents, including technical memoranda and draft responses to the May request were received. This correspondence included a document provided by the Council that was referred to as a “Section 92 Summary” that included comments and questions, in respect of which the Council considered further information was required. In respect of the request for information on the effects on freshwater bodies and wetlands, the Council designated this request as having been “addressed but not provided” by MHV. In relation to the effects on drinking water and the list of eight issues set out for discussion, the Council inquired whether there “[a]re any environmental bottom lines proposed as consent conditions?”
[56] In October 2019, the Council received from MHV “a cross-reference table” prepared by MHV and “a consolidated or updated” AEE setting out its responses to the requests for further information that had been issued by the Council to that point. It was suggested this material may help find where previous s 92 questions had been answered, and, it was submitted, covered all those requests to date. In relation to the effects on water quality and the topics listed for discussion in respect of community drinking water supplies, the Council was referred to the consolidated AEE and proposed consent conditions. No further comments were made in respect of freshwater bodies and wetlands. The Council and MHV submitted this was because
the Council had already communicated that, while the information had not been provided, its inquiries had been “addressed”. In the consolidated AEE, the limited and dated groundwater quality samples for nitrogen were again referenced. The potential effects of the discharge on community drinking water supplies were set out in a separate section of the AEE, including a proposed condition to avoid potential effects.
[57] Further consultation and discussion occurred between the Council and MHV, during which more information was imparted in an endeavour to meet the Council’s concerns regarding water quality and effects on community drinking water supplies. By way of illustration, a meeting involving Council technical staff and MHV’s consultants was held in November 2019. Topics on the agenda included cumulative and localised water quality effects in community drinking supply zones. Draft conditions were being considered at this time, including those relating to the monitoring of groundwater and surface water quality, the need to manage any material deterioration in water quality detected as a result of water quality sampling to be undertaken by MHV, and the reporting of any such deterioration to the Council. Such was the ongoing nature of this work that, as previously noted, in early July 2020, the officers responsible for the processing of MHV’s consent application advised that it was currently on hold at MHV’s request while they addressed matters of concern to the Council, including the effects on community drinking water protection zones and the cumulative effects on water quality.
[58] In August 2020, further information was provided to the Council in a detailed letter from MHV’s consultants addressing a number of outstanding issues. These included the proposed environmental management strategy contemplated by the resource consent conditions, further information regarding the proposed approach to monitoring and, in particular, a groundwater and surface water sampling programme. The letter noted that the application had been on hold for some time and that MHV had been meeting with the Council’s scientist to work through those issues. It referenced a recent meeting where it was discussed what further information needed to be provided. Those issues included community drinking water supply protection zones, the monitoring programme, and proposed consent conditions.
[59] In relation to the community drinking water protection zones it was recorded there had been much discussion with the Council’s groundwater scientists and hydrologists on how to assess effects from the discharge consent applications on the water supply. It was also noted agreement had been reached on a risk-based approach and risk assessments for the three MHV properties within a community drinking water protection zone had been provided for review by the Council’s scientists. Those assessments included one for the Carew School supply and provided for testing to be done on a monthly basis and on adjacent shareholder farms.
[60] It was noted that MHV provided to the Council’s surface water scientists material detailing the groundwater and surface water monitoring programmes, including a summary of those programmes, and updates on results on an iterative basis. Further, that proposed consent conditions continued to be worked on with the Council’s scientists and the local iwi. On 17 August 2020, the Council advised that additional information had been received from MHV and the application no longer needed to be placed on hold.
[61] Between 24 August and 4 September 2020, internal communications between Council staff recorded how the information provided by MHV had been reviewed and further information obtained regarding the accuracy of the risk assessments and about the monitoring regime and proposed conditions. These included comments from Council officers agreeing with the efficacy of MHV’s proposed risk based approach to community drinking water.
Analysis
[62] By reference to observations made by the Supreme Court in Discount Brands Ltd v Westfield (New Zealand) Ltd, ELI emphasised the importance of the decision whether to notify a resource consent application and, in particular, the two purposes of notification as a public participatory process—first, to recognise and protect as appropriate the particular rights and interests of those affected and more general public interests and secondly, to enhance the quality of the decision making.17 In Discount Brands, it was noted that a decision not to notify has significant consequences because
17 Discount Brands Ltd v Westfield (New Zealand) Ltd [2005] NZSC 17, [2005] NZRMA 337 at [46].
it deprives others of the right to participate in the determination of the resource consent application and precludes persons other than the applicant from appealing or participating in the hearing of an appeal from the grant or refusal of the consent.18
[63] A decision not to notify has the consequence of “shutting out” persons who may have sought to oppose the application from participation in the process. As a consequence, a Court upon an application for judicial review will need to carefully scrutinise the material on which the consent authority’s non-notification decision was based in order to assess whether it could reasonably have been satisfied that in the circumstances the information was adequate.19 ELI maintained MHV failed to adequately respond to the Council’s s 92 requests and that the Council could not have been satisfied it had all the necessary information to make a sound decision in order to properly determine whether notification of the consent application could be dispensed with.
[64] Since the Supreme Court’s judgment in Discount Brands Ltd, the statutory framework which is to be applied to the determination of whether a consent application should be notified has considerably changed. There is no longer a statutory presumption of notification, nor an express statutory obligation requiring a consent authority to be “satisfied” as to the “adequacy” of the information available to it. That change was considered by this Court in Gabler v Queenstown Lakes District Council (Gabler):20
… the obligation on the Council to be “satisfied” that it has adequate information is no longer a separate and reviewable element of its decision making process. I do not consider that this in any way altered the need for a decision maker to be sufficiently and relevantly informed. It does not alter the need for the decision maker to apply relevant and not irrelevant considerations, and make a decision which stands up to the test of “reasonableness”. Being sufficiently and relevantly informed does not ensure these elements of decision making will be lawfully undertaken. In these respects Discount Brands in my view has undiminished force. It recognised a distinct step in the (repealed) legislation, but there must always be a secure foundation for such important decisions. Parliament cannot have intended to remove that foundation. That is not to endorse a counsel of perfection, but of sufficiency and relevance, and that is how I conclude the decision in this case
18 At [21].
19 At [116].
20 Gabler v Queenstown Lakes District Council [2017] NZHC 2086, (2017) 20 ELRNZ 76 at [66].
should be judicially reviewed. It is fundamentally a test of the quality of the decision.
[65] MHV submitted that ultimately it did provide the Council with sufficient and relevant information in accordance with agreed timeframes and that s 95C does not therefore apply. It relies on the elongated process in which it participated that involved it engaging with Council staff on an iterative basis, and included it making substantive responses to the Council’s enquiries by way of updated assessments and information regarding environmental effects and other various forms of information as part of an ongoing process that finally satisfied the Council of its original concerns.
[66] For its part, the Council sought to emphasise that the RMA provides a stepped process for determining whether a consent application had to be notified, and that in the notification recommendation adopted by the decision-maker the test for notification in s 95A had been explicitly set out and addressed. This included that the application did not meet any of the criteria of step one of s 95A, and that when making this decision consideration had been given to s 95C of the RMA. It submitted the Court was not required to go any further and that this decision on its face was sufficient to establish the Council’s consent officers. It was submitted the decision-maker had specifically considered the requirements for mandatory public notification, including s 95C, and determined it did not apply. It followed, in its submission, that the Council had been satisfied with the information provided to it by MHV, and that its assessment in that regard could only be validly challenged on the basis this conclusion was unreasonable in the sense that a reasonable decision-maker could not have made it.21 I accept I am obliged to approach my review of the Council’s decision regarding the non-application of s 95C(2) on the basis of that orthodox test.22
[67] It was argued that for ELI to succeed it would have to demonstrate as a fact that MHV had failed to respond to the Council’s s 92 request to its satisfaction or, alternatively, that at the stage the Council made its notification decision it could not have reasonably determined it had sufficient information before it to proceed to make a notification decision. Clearly, the Council did not consider MHV had failed to
21 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 (CA).
22 Associated Churches of Christ Church Extension and Property Trust Board v Auckland Council
[2014] NZHC 3405, [2015] NZRMA 113 at [52].
provide it with the information it required, or that its responses over the course of its interaction with the Council constituted a refusal to provide that information.
[68] Having reviewed the history of MHV’s engagement with the Council and the process by which its requests for information were reviewed and managed on an ongoing basis over an extended period, I consider the Council’s conclusion that s 95C had not been triggered was reasonably available to it as the decision-maker. The Council’s process involved periodic audits of the state of the information that had been provided, and led to such assessments as the information requests having been “addressed”, albeit “not provided”, and, at one stage, suspension of the consent application (albeit at the request of MHV) pending satisfaction of issues raised with the applicant that required further work. The subsequent decision to take the application off hold demonstrates the Council’s ongoing review and ultimate satisfaction with the information provided to allow the consent application to proceed. The following of such a process ultimately allowed it to determine, in terms of s 95C, that the criteria for public notification had not been triggered.
[69] In support of its position, the Council submitted that Gabler was an apposite case that involved judicial review of whether a consent application should have been notified because of an inadequate response to a s 92 request. The challenge focused on a specific list of information that had been requested by the consent authority, which it was submitted had not been answered in a manner to sufficiently inform the decision-maker about issues concerning noise and its potential effects as a result of the activity. This Court concluded the consent authority, as a matter of good practice, should have obtained a more focussed reply to that request but that no reviewable error had been made. In addressing that issue, Davidson J stated:23
[106] I do not consider that Parliament intended that s 95C of the Act should apply in a “drop dead” way in every case. If a reply is a day late, or the Council already has, or gets information it seeks from elsewhere, it cannot have been intended that there must be public notification. Section 95C is a discipline on an applicant for resource consent. Sometimes delay, or recalcitrance may activate s 95C in its full rigour. This is not one of those cases. The Playground was a well intentioned applicant providing detailed information in a straightforward way. The question put to it was evaluative, and in the end very much for a specialist body such as the Council to decide.
23 Gabler v Queenstown Lakes District Council, above n 20, at [106].
[70] I accept the Council’s submission that whether there has been compliance with the requirement that information requested by the consent authority has been provided, or whether there had been a refusal to provide information must be evaluated not on the basis of an artificial analysis of whether the applicant has literally “answered” what it was “asked”, but whether the process of gathering information from the applicant and its interaction with that entity as a result of the requests the Council has made has enabled it to be sufficiently and properly informed to satisfy itself as to the particular issues in respect of which that information was sought. As was observed by the Supreme Court in Discount Brands, that may involve a process that may overtake or supersede the initial request(s) for information by drawing on other available sources:24
… The Act makes it plain that the consent authority is not dependent only on the initial application for that information. It also has the power under s 92 to require the applicant to provide further information and, under that provision and s 42A, to commission a report on relevant matters. Further, the members and officers, with their experience, records and archives, would have and would be able to draw on extensive relevant knowledge, given the authority's ongoing responsibilities for the sustainable management of the natural and physical resources in its area.
[71]And later in that judgment:
[107] The information before the authority can be supplied by the applicant, gathered by the authority itself or derived from the general experience and specialist knowledge of its officers and decision-makers concerning the district and the plan. But in aggregate the information must be adequate both for the decision about notification and, if the application is not to be notified, for the substantive decision which follows to be taken properly – for the decisions to be informed, and therefore of better quality.
[72] Mindful of the ultimate objective of a consent authority’s power to request further information, the Council in this case has, by its engagement with MHV, its ongoing interaction with the applicant, and utilisation of its technical staff over a 15- month process, informed itself of the effects of MHV’s scheme, including the potential effects on freshwater bodies and on community drinking water supplies.
24 Discount Brands Ltd v Westfield (New Zealand) Ltd, above n 17, at [50].
Conclusion
[73] I am satisfied the Council acquired sufficient relevant information and knowledge to assess the effects of the issues identified by ELI which had been the subject of the s 92 requests. I accept it was for the Council to evaluate whether the information finally available to it at the end of that process was adequate to address its initial concerns regarding these particular issues, and whether the remedial or mitigating measures designed to address particular concerns were sufficient. These were matters for the Council to assess.
[74] Having regard to the procedure followed and the substance of the information generated, it was open to the Council to conclude, in its capacity as the decision-maker, that s 95C did not apply in the circumstances. Its decision not to notify, at least not on that basis, could not be held to be unreasonable, but was one validly open to it on the basis of the results of the process in which it engaged and the information before it.
Alleged failure to consider special circumstance as a mandatory relevant consideration
[75] The principal consent planner stated in his notification decision that because of the preclusion at step two he could not publicly notify the application unless special circumstances applied. He noted that whether the special circumstances apply is a “high test” before stating he agreed with the consent officers’ conclusion there were no special circumstances that existed that warranted public notification of the application. A similar conclusion was reached in respect of the issue of limited notification.
[76] ELI argued there was no current quantitative information before the decision- maker regarding certain public water supplies, only uncertainty as to whether standards for drinking water would be consistently met for some 440 people in respect of whom those particular supplies provided drinking water. In respect of private supplies, ELI noted that MHV’s AEE recorded that the maximum acceptable value for nitrate nitrogen set for New Zealand drinking water standards had been exceeded in 16 of 21 bores that had been tested and there was an overall trend of increased concentrations.
[77] More generally, it was submitted the Council was aware that private water supplies were subject to very high levels of nitrate contamination in the area of the scheme. It was noted a Council memorandum prepared only four months prior to the notification decision recorded the Council itself estimating that some 62 per cent of private wells in an area comparable to the MHV command area may have nitrogen concentration levels greater than the maximum acceptable value, and that increasing trends were evident in many wells in the area.
[78] ELI stressed the importance of being able to access safe and clean drinking water, which has been recognised as a fundamental human right.25 Because of the significantly degraded receiving environment and the risk to private and community potable water sources, it was submitted the Council was required to consider the effects of the proposed activity and properly inform itself of the related risks to those sources in order to make a proper assessment of whether “special circumstances” existed that required there to be broader notification of the consent application—being either public notification or wider limited notification.
[79] ELI submitted the Council should have been vigilant to ensure it had sufficient information before it to allow it to make a proper assessment of whether there were special circumstances warranting broader notification before making its decision. Further, that the Council had not been in a position to properly consider the effects of the proposed activity as it did not have either appropriate or sufficient information available to it concerning drinking water supplies. As a result, it had failed to take into account this relevant consideration when making its assessment pursuant to ss 95A and 95B of the RMA, and this led to an erroneous notification decision.
[80] As a separate point, ELI argued that, on the face of the decision, it was apparent the Council could not have properly assessed whether special circumstances existed. The recommendation memo[randum] records that because “step [three] of [s] 95A does not apply, we have not considered the actual and potential effects of the proposed activity in this memorandum”, yet it had previously concluded there were no special circumstances that warranted public notification of the application. It was argued, in
25 The Human Right to Water and Sanitation : Resolution GA Res 64/292 (2010).
the absence of having undertaken a consideration of the effects of the proposed activity, the Council could not have properly assessed the existence of special circumstances.
Analysis
[81] In the present context, it is well-settled that “special circumstances” are those that are “outside the common run of things which [are] exceptional, abnormal or unusual but less than extraordinary or unique.26 They have been described as circumstances that would make notification desirable despite general provisions excluding a need for notification.27
[82] ELI couched its challenge to this aspect of the notification decision as being a failure to consider a mandatory relevant consideration. However, both the Council and MHV argued that since the notification recommendation (which it was not disputed is to be read together with the notification decision as the record of the decision the subject of the challenge) expressly addressed whether special circumstances existed warranting wider notification, the essence of ELI’s challenge was to the reasonableness of that decision.
[83] Whether assessed within the framework of judicial review as an alleged failure to take into account a relevant consideration, or an issue of unreasonableness in the sense that no reasonable consent authority could have concluded there were no special circumstances that warranted public notification, it is important to keep in mind that judicial review does not involve an inquiry into the merits of that decision, nor may it extend to the substitution of the Court’s own conclusion for that of the decision- maker.28
[84] It is recognised that a decision-maker is not required to expressly refer to every relevant consideration in its decision because to do so would be to impose “an
26 Far North District Council v Te Rūnanga-ā-Iwi o Ngāti Kahu [2013] NZCA 221, [2013] ELHNZ 211 at [36].
27 Murray v Whakatane District Council [1999] 3 NZLR 276 (HC) at 310.
28 Pring v Whanganui District Council [1999] NZRMA 519 (CA) at 523; and Colley v Auckland Council [2021] NZHC 2365, [2021] ELHNZ 227 at [120].
impossible burden on the consent authority”.29 In the notification recommendation the authors record how community drinking water supplies will be managed using a risk-based approach which has been developed in consultation with the Council’s groundwater scientists. An Environmental Monitoring Programme which concerns the monitoring and reporting of water quality more generally within the command area is also referenced.
[85] As is apparent from the material reviewed in respect of the first ground of challenge to the notification decision, the consent officers, in their capacity as consultant planners, had been privy to an extensive exchange of information over a 15–18-month process which included information focused on the effects on water quality, community water supply risk assessment methodology and the proposed consent conditions requiring a risk-based approach to managing the jeopardy to community drinking water supplies. It is anticipated that such persons would be able to draw on their relevant knowledge of such processes. The same consultant planners had been responsible for the preparation of s 42A reports for the purposes of assessing MHV’s application.
[86] Because of their specialist planning qualifications, experience and their extensive involvement over an extended period in the process to date, effectively as the decision-maker’s agents, their finding of no special circumstances in the recommendation memorandum can reasonably be assessed as having been informed by this knowledge.30 I do not consider it is tenable to suggest the decision-maker was unaware of the issue of drinking water supplies, nor of the way those issues had been progressed and were to be managed.
[87] In regard to the statement in the recommendation memorandum concerning step three of s 95A—that the authors had not considered the actual and potential effects of the proposed activity—I do not consider that has the effect contended for by ELI. First, the statement references what has been included in the memorandum and does not purport to represent factors that had been excluded from consideration.
29 Duggan v Auckland Council [2017] NZHC 1540, [2017] NZRMA 317 at [79].
30 Lake Tekapo Community and Friends Inc v MacKenzie District Council [2021] NZHC 1354, (2021) 22 ELRNZ 801.
Second, as already traversed, the consultant planners had been privy to and/or involved in a lengthy period of engagement between the applicant and the Council, which, amongst other issues, included a focus on the effects on drinking water supplies.
[88] I accept the Council’s submission that the extensive information those officers had before them, including the results of inquiries made by them of technical experts in relation to the issue of drinking water, demonstrates their participation in a process that assessed the effects of the proposed activity on water supplies. That involvement can reasonably be anticipated as having informed their conclusion there were no special circumstances arising from that aspect of the application to warrant public notification.
[89] As noted, the Council engaged with MHV over an extended period in response to concerns regarding the impact of the proposed activity on community drinking water supplies and water supplies more generally. The adequacy of the Council’s response, which resulted in changes to community drinking water supply conditions, cannot be the focus when assessing the reasonableness of its assessment of whether there were special circumstances that warranted public notification of the application when it is not apparent those concerns, which were extensively reviewed in the process leading up to the making of the notification decision, could not be considered “unusual, abnormal or exceptional”. In any event, having regard to the extent of the Council’s engagement with MHV, it was for the Council to assess whether the circumstances relating to that issue qualified as special such as to warrant wider notification of the application. That assessment involved considerations of fact and degree by persons well-placed to make that evaluation and exercise judgment.
[90] The activity the subject of the application, which involves the operation of an irrigation scheme for the purposes of farming in an area of the Canterbury Plains, is not uncommon. It is an activity anticipated and provided for by the Land and Water Regional Plan, which sets out specific policies and rules for such schemes. Moreover, in the context of an application for a discharge consent by an irrigation scheme, it is not apparent that concerns centred on the potential effects on drinking water supplies were out of the ordinary, or of a particularly usual nature, that required them to be recognised as a special circumstance warranting wider notification, particularly when
regard is had to the extent to which the Council had been engaged with the applicant in respect of this particular aspect of the application. The authors of the recommendation memorandum were well-placed, on the basis of the information generated by that process, to assess whether that aspect of the application should be categorised as giving rise to special circumstances that warranted public or wider notification.
Conclusion
[91] I am satisfied that appropriate consideration was given by the Council to the potential effects of the proposed activity on drinking water sources, and that it was sufficiently informed to determine this aspect of the resource consent application did not give rise to special circumstances that warranted public or further limited notification.
Failure by the Commissioner to consider impact on drinking water supplies
[92] While not pleaded as part of the challenge to the consent decision, ELI sought to extend its argument regarding the Council’s alleged failure to properly inform itself about the effects on drinking water supplies to a similar consequential failure by the consent authority. It was submitted the Commissioner, despite being aware of the significant degradation of ground and surface water in the catchment and the risk to drinking water supplies, failed to consider that potential impact. Because of the universal recognition of the importance of access to safe and clean water, it was submitted this was a mandatory relevant consideration.
[93] In particular, it was argued the Commissioner had failed to consider up to date information regarding the nitrate concentrations in community drinking water supplies within the command area and actual and potential future health and/or economic effects of nitrate contamination on community or private drinking water supplies. Further, the Commissioner had omitted to consider whether the discharges sought to be authorised by the consent may, as a consequence of an event such as unusually heavy rainfall, have a significant adverse effect on the quality of the water at any extraction point, as required under reg 12 of the Resource Management (National Environmental Standards for Sources of Human Drinking Water) Regulations 2007
(the Drinking Water Regulations). It was argued the failure to consider those issues in the circumstances amounted to an error of law.
[94] I do not consider that challenge sustainable. The Commissioner had substantial information before her regarding the drinking water and groundwater quality, including a technical report from the Council’s groundwater scientists, addressing those particular effects. That report also included reference to the Council’s recent work conducted in relation to water quality in private drinking wells. The Commissioner expressly referred to the report of the Council’s groundwater scientists who had undertaken an audit of MHV’s application addressing, amongst other issues, the risks to community drinking water. In regard to the Drinking Water Regulations, the Council noted the reg 12 requirement was imposed as an express condition of the consent.31 This condition applies to properties within designated community drinking water protection zones designed to protect community drinking water supplies.
103 Ortmann v United States of America [2020] NZSC 120, [2020] 1 NZLR 475 at [535].
104 RMA, s 30(1)(f).
[219] ELI submitted the availability of a power for a decision-maker to revoke or unwind an erroneous decision pursuant to s 46 was consistent with the purposes of the RMA, which is to avoid, remedy and mitigate adverse effects of activities on the environment, and that the statute’s focus is on the effects of activities, rather than the bestowing of “property rights”.105 It argued that confirmation of the power of a consent authority to revoke a resource consent in order to correct error is also consistent with the statutory purpose of the Act, which is particularly important where the starting point, as in this case, is s 15 of the RMA that prohibits discharges of contaminants without a resource consent and where s 107 prohibits the granting of consents where certain adverse environmental effects are likely to arise. ELI argued this function does not stop once a consent is issued, nor is the Council precluded from correcting an error or omission in performing that function.
[220] Regardless of the Court’s findings of whether the Council was in error on the facts of this case, ELI further argued that a declaration should be made under the Declaratory Judgments Act 1908 that consent authorities have the power to act to revoke or amend a consent for the purpose of correcting an error or omission in the grant of a consent where a Court has identified systematic illegality, or at least where an illegality in one case affects multiple other consents. In support of that proposition, ELI submitted that where some systematic error in the approach by a consent authority is identified which is apparent in multiple decisions affected by the same error of law, s 46 of the Legislation Act should be recognised as the means by which the consent authority may use its consent making powers to correct the legal errors.
[221] ELI maintained that the Council’s position that nothing can be done about an unlawfully granted resource consent unless and until it is set aside by a Court of law is contrary to the interests of the administration of justice, and it is unrealistic to require judicial review proceedings to be taken in order to address the consequence of illegalities in the consent authority’s approach. That submission, however, tends to overlook the need for some authoritative determination that in the circumstances of those other cases the “systematic” error renders the decision to grant a resource
105 Citing Cloud Ocean Water Ltd v Aotearoa Water Action Inc [2023] NZSC 153, [2023] 1 NZLR 474 at [34].
consent unlawful, or would result in an entitlement to relief which is at the discretion of the Court in the individual case.
[222] Similar observations apply to ELI’s submission that requiring a consent authority to reverse its own decision pursuant to s 46, would result in a decision that was judicially reviewable, but would have the advantage of placing the onus of challenge on the party who wishes to assert continued reliance on the invalidated consent. However, that reasoning is premised upon the consent authority being both prepared to revisit its decision and, moreover, confirm the contended for unlawfulness.
[223] I consider the issue raised by ELI is governed by the Court of Appeal’s decision in Goulding v Chief Executive Ministry of Fisheries, which this Court is bound to follow.106 That decision concerned the grant of a marine farming permit by a delegate of the Chief Executive of the Ministry of Fisheries. Prior to the decision being communicated to the applicant, new information came to the attention of the decision- maker which caused him to make a fresh assessment of the application and to decline the permit. The Court held that a valid administrative decision that was the outcome of a completed process but which had not yet been formally communicated to interested parties, and therefore not yet perfected, could be revoked and a fresh decision substituted.
[224] In reaching that conclusion, the Court of Appeal set out the relevant common law principle governing the finality of such decisions and considered the potential application of the predecessor to s 46 of the Legislation Act. As to the former, the Court of Appeal provided the following summary:
[43] The common law principle applicable to the present case can accordingly be summarised in this way. A valid administrative decision in the exercise of a statutory power, which is the outcome of a completed process, but which has not been formally communicated to interested parties, has not been perfected. It may be revoked and a fresh decision substituted at any time prior to communication of it to affected persons in a manner which indicates intended finality. Once such a decision is so communicated to the persons to whom it relates, in a way that makes it clear the decision is not of a preliminary or provisional kind, it is final. A final decision which is made in the exercise of a power which affects legal rights, including those arising from the grant of a licence, is irrevocable. So is any other decision made under a statutory power
106 Goulding v Chief Executive Ministry of Fisheries [2004] 3 NZLR 173 (CA).
where the Act explicitly or implicitly provides that once finally exercised the power of decision is spent. That is the position under the common law. We must, however, also consider the relevant provisions of the interpretation statutes.
[225] The Court of Appeal then considered s 25(j) of the Acts Interpretation Act 1924, which was the interpretation statute in force at the time. It provided a decision- maker with a power comparable to s 46 of the Legislation Act to correct an error or omission in any previous exercise of a decision making power.107 In assessing the effect of s 25(j), the Court referred to s 25(g) of the Acts Interpretation Act, which provided that unless the context otherwise requires, a power is capable of being exercised from time to time, “as occasion may require, unless the nature of the words used or the thing itself indicates a contrary intention”. After referring to the UK equivalent of that provision, the Court cited with approval the observations of the learned authors Wade and Forsyth:108
In the interpretation of statutory powers and duties there is a rule that, unless the contrary intention appears, ‘the power may be exercised and the duty shall be performed from time to time as occasion requires’. But this gives a highly misleading view of the law where the power is a power to decide questions affecting legal rights. In those cases the courts are strongly inclined to hold that the decision, once validly made, is an irrevocable legal act and cannot be recalled or revised. The same arguments which require finality for the decisions of courts of law apply to the decisions of statutory tribunals, ministers and other authorities.
[226]The Court of Appeal then held:
[47] We share the view that s 25(g) and s 13 of the Interpretation Act 1999 do not give power to reverse a previous decision made in the exercise of the power which affects legal rights within which we would include the benefits obtained on the issue of a marine farming permit under s 67J.
[227] ELI sought to rely upon two cases that arose in different contexts where s 46 or its equivalent predecessor was applied to permit a previous decision to be revisited. In Lloyd v Registrar of Ships at Whangarei, a motor launch was registered under the Shipping and Seamen Act 1952 by the local registrar of ships.109 However, at the time
107 Section 25(j) of the Acts Interpretation Act 1924 provided:
(j) power to do any act or thing, or to make any appointment, is capable of being exercised as often as is necessary to correct any error or omission in any previous exercise of the power, notwithstanding that the power is not in general capable of being exercised from time to time.
108 At [46]. Footnotes omitted.
109 Lloyd v Registrar of Ships of Whangarei [1989] 1 NZLR 586 (HC).
of its registration it was in an incomplete state and not eligible to be registered. Following this purported registration, the registrar became aware of the vessel’s incomplete state. The registrar “closed the registry” for the launch and deregistered it.
[228] In response to a challenge to that step, this Court, after noting there was no specific provision in the applicable legislation authorising the registrar to deregister a ship that had been wrongfully entered on the register, held that by virtue of s 25(j) of the Acts Interpretation Act the particulars entered in the register in error could be corrected by deletion and/or closing the registry of the ship in the register book.
[229] I do not consider this case assists ELI’s argument. The registrar in that case had an ongoing administrative duty to maintain a correct register and, in accordance with that obligation, to correct wrongful entries. The registrar exercised the power to do so in respect of the motor launch, pursuant to an earlier iteration of s 46. In the absence of any specific statutory power to correct that error, it was held that s 25(j) of the Acts Implementation Act could be utilised to reverse the erroneous entry.
[230] In the more recent case of New Zealand Parole Board v Attorney-General, Isac J accepted the Parole Board had the power to initiate a review hearing of special conditions imposed in respect of an extended supervision order (ESO) after the delivery of a judgment that called into question the lawfulness of a previously imposed special condition.110 In the circumstances of that case, it was held that s 46 contemplates a statutory decision-maker being able to revisit a decision in order to correct an error of law.
[231] In reaching that conclusion, this Court referred to the Court of Appeal’s decision in Goulding, and commented that it did not read that Court’s decision as imposing an “invariable requirement that s 46 must be construed narrowly”,111 before remarking upon the human rights context of the case before it, and that “it would be deeply unattractive” if the Parole Board could not review an offender’s conditions that
110 New Zealand Parole Board v Attorney-General [2023] NZHC 1611, (2023) 31 CRNZ 95.
111 At [101].
had been held to be unlawful.112 It was observed that it would place an onus on a person subject to unlawful State treatment to have to take steps to free themselves from the illegality, which would have profoundly negative results for fundamental rights and freedoms.
[232] I do not consider the circumstances of that case are comparable to the present. The Parole Board is an administrative body charged with managing persons subject to coercive powers of the State, which include the imposition of restrictive conditions to monitor and assist a person’s rehabilitation into the community, notwithstanding those made subject to an ESO having served their sentence. For the reasons identified in that case, in those circumstances there is at least an implicit ongoing responsibility to ensure the State’s supervision of the person is legal.
[233] In Goulding, the Court of Appeal, after noting the need for some latitude during “internal processes” to allow for reconsideration of an initial decision, whether as a result of the availability of fresh information or the desirability of correction of an error, identified strong policy considerations as to why the finality of a decision- maker’s decision must be given precedence:
[41] On the other hand, once a certain point in the process has been reached the alteration of a decision which has been taken, especially if a benefit that otherwise would have been gained by an interested person is thereby lost, is capable of producing financial loss, unfairness and great inconvenience to the public. Citizens necessarily rely on administrative decisions in their daily lives. While statutory rights of appeal or review must be tolerated, the risk of further uncertainty from open-ended administrative reconsideration need not be and to allow it would lead to loss of public confidence in the integrity and competence of public administration. While from an administrator’s viewpoint a better decision may still be made, at some point the countervailing advantages of treating the decision already reached as conclusive must assume greater weight.
[42] By fixing that point as being when a favourable decision has been perfected, which is generally when it has been communicated, the common law has sought to accommodate the competing factors and create a clear signpost of when it is that an administrative decision generally becomes final and conclusive. …
[234] To be added to these identified considerations favouring finality, the Council raised the difficulties that would arise if consent authorities were obliged to constantly
112 At [103].
re-examine consent decisions in light of recent case law to reassess whether a consent was granted in sufficiently analogous circumstances to require its decision to be reviewed. Further difficulties may arise determining the parameters of such an appraisal after a resource consent is the subject of a successful judicial review in order to identify whether the same error has been made in situations involving comparable facts. This would lead to uncertainty.
[235] The Council further submitted that the imposition of an obligation on the consent authority to unilaterally cancel resource consents that have previously been granted on the basis of a self-referred review abrogates the discretion available to the Court upon a judicial review challenge to decide whether in any given case relief should be granted. A retrospective power conferred on a consent authority to cancel resource consents in the absence of a decision from the Court invalidating the consent would be contrary to the principles of natural justice. Aside from these policy considerations, it was also submitted that the scheme of the RMA points away from a conclusion the consent authority is not functus officio after having publicly communicated its decision.
[236] The Council submitted the RMA codifies the benefits which are conferred by the grant of a resource consent, as it does the basis upon which a consent authority can revisit or cancel a consent. In relation to the former, it was submitted that resource consents confer benefits which cannot be “interfered with on an ad hoc basis”. While not in most circumstances a property right, it was submitted the Court of Appeal has recognised that “real benefits” are conferred by a resource consent. In Hampton v Canterbury Regional Council [Environment Canterbury], the Court of Appeal acknowledged that effect:113
[105] By declaring that a resource consent is neither real nor personal property the Act excludes what the law might otherwise imply, namely the unqualified liberty of using a consent as the holder wishes, the right to exclude others, the power of alienation, and the right to immunity from expropriation. The Act does go on to confer certain property-like rights, notably a limited right to grant a charge over a consent and to transfer it to another person in certain circumstances. It provides that consents are treated as property for certain purposes. The Legislature’s objective was plainly to allow a holder
113 Hampton v Canterbury Regional Council (Environment Canterbury) [2015] NZCA 509, [2016] NZRMA 369.
only those incidents of property that the Act itself confers, and then subject to the Act’s conditions.
[106] As a number of commentators have observed, by granting these incidents of property the Legislature recognised the advantages of private ordering. Resource consents manifestly have a value, and in a world without transaction costs they would find their way to their most valued use. …
(citations omitted)
[237] The RMA provides a consent authority with very limited abilities to cancel or change the conditions of a resource consent. While a consent authority may cancel a resource consent in certain circumstances, it may only do so if it has not been exercised during the preceding five years.114 Conditions of a resource consent can only be reviewed by a consent authority in limited circumstances. Examples include where the resource consent itself provides for review;115 in some circumstances where a relevant regional plan rule is made operative;116 or a new National Environmental Standard or National Planning Standard has been made.117
[238] Finally, the Council observed that unilateral action by a consent authority to cancel a resource consent could render the holder in immediate breach of the RMA. Applied to the present case, where the discharge of contaminants is prohibited by s 15 of the RMA unless authorised by a resource consent, the consent holder would be in immediate breach of that provision and would remain so until a new resource consent was obtained or the activity the subject of the consent ceased. The former holder would become liable to criminal prosecution, notwithstanding its previous legitimate reliance on the lawfulness of the consent which had not been abrogated by a court of law but the administrative body’s own reassessment of its prior grant. In that regard, it was noted that enforcement action under the RMA can be brought by any person. The risk of such a consequence is not therefore mitigated by prosecutorial discretion lying only with the Council in not seeking to enforce compliance.118
[239] It was noted the only recourse available to the holder of a revoked consent would be to seek judicial review of the purported exercise of s 46 to cancel their
114 RMA, s 126(1).
115 Section 128(1)(a).
116 Section 128(1)(b).
117 Section 128(1)(ba).
118 Section 316(1).
resource consent. The interim illegality of the offending activity would not be remedied in the event the former consent holder was successful.
Conclusion
[240] I consider all these considerations support my conclusion that the grant of a resource consent should be categorised as an irrevocable final decision on the part of a consent authority which cannot, at least substantively, be re-examined pursuant to s 46 of the Legislation Act. I do not discount the possibility of a consent authority being able to revisit a resource consent pursuant to s 46 for the purpose of correcting limited minor or non-substantive errors. Nor to address omissions in conditions that could be categorised as having resulted from administrative oversight or technical defects and the suchlike that do not impact on the outcome of the consent application, or materially effect whether the consent should have been granted. However, I do not consider s 46 can be utilised to reverse a previous decision made in the exercise of the consent authority’s power, which affects the legal rights of a consent holder to engage in the authorised activity.
Relief
[241] Where an applicant succeeds in establishing a ground for review it remains a matter of discretion for the Court whether to grant relief.119 Ordinarily, where a challenge on a reviewable decision has been successful that will be the normal outcome.120 However, there are a range of factors to which the Court may have regard when assessing the exercise of its discretion.
[242] A notable development since this Court issued the ALI decision has been the amendment of s 107 of the RMA in the wake of that decision.
[243] The Resource Management (Freshwater and Other Matters) Amendment Act 2024 was passed in late October 2024. It amended s 107(1) by providing a further exception in subs (2A) to the prohibition on a consent authority granting a discharge
119 Judicial Review Procedure Act 2016, s 18.
120 Winton Property Investments Ltd v Minister of Finance [2023] NZCA 368 at [142]; and Ririnui v Landcorp Farming Ltd [2016] NZCA 62, [2016] 1 NZLR 1056 at [112].
permit that would otherwise contravene s 15 by allowing the discharge of a contaminant likely to give rise to certain effects. Subsection 107(2A) provides:
(2A)A consent authority may grant a discharge permit or a coastal permit to do something that would otherwise contravene section 15 or 15A that may allow the effects described in subsection (1)(g) if the consent authority—
(a)is satisfied that, at the time of granting, there are already effects described in subsection (1)(g) in the receiving waters; and
(b)imposes conditions on the permit; and
(c)is satisfied that those conditions will contribute to a reduction of the effects described in subsection (1)(g) over the duration of the permit.
[244] Schedule 12 of the RMA was also amended by the inclusion of a new cl 46 that sets out how s 107(2A) is to be applied.121 It provides:
46Effect of amendments to section 107 on applications for discharge or coastal permits
The amendments made to section 107 by section 24 of the amendment Act apply to an application for a discharge permit or coastal permit that is lodged with a consent authority—
(a)on or after commencement; or
(b)before commencement if—
(i)the consent authority has not, before commencement, served notice of its decision on the application; or
(ii)the consent authority’s decision on the application was the subject of judicial review proceedings and was referred back to the consent authority for reconsideration, as long as the consent authority has not, before commencement, served notice of that decision.
[245] It follows from cl 46(b)(ii) that any reconsideration of MHV’s application for a resource consent by the Council would have to be assessed in accordance with s 107(2A). This would allow a discharge consent to be granted on the same basis as the present discharge permit. The amendment authorises a discharge permit to be granted that would otherwise contravene the RMA by allowing the discharge of a contaminant likely to give rise to significant adverse effects on aquatic life in the
121 Resource Management (Freshwater and Other Matters) Amendment Act 2024, s 29 and sch 1.
receiving waters if those effects are already occurring in the receiving waters, the consent authority imposes conditions on the permit, and that it is satisfied those conditions will contribute to a reduction of those effects over its duration.122
[246] MHV submitted this legislative amendment essentially means the same outcome is inevitable should the present discharge consent be set aside and remitted back to the Council for reconsideration. It emphasised that the Commissioner’s approach to s 107 in her consent decision mirrors that taken by her in the ALI decision, which s 107(2A) would now validate. It follows, in MHV’s submission, that there is no longer any legal impediment to the consent authority approaching s 107 in the same way. Any remission of the decision for reconsideration would result in the same outcome. Nor, it is submitted, is there any basis to suggest consideration of the coastal planning documents would lead to any different outcome, particularly, it argued, given that the Ashburton/Hakatere hāpua did not appear to be a material concern in relation to the MHV irrigation scheme, and the fact the primary discharge is to land.
[247] MHV also submitted that relief should not be granted on the absence of any substantial prejudice to the applicant.123 It noted that ELI is an organisation founded to utilise the law for the purposes of the preservation and conservation of the natural environment and that it has no “obvious connection” to the Hinds/Hekeao Plains area or South Canterbury. It was submitted the applicant could not be viewed as being directly prejudiced by any decision to decline relief.
[248] Insofar as the interests of the environment more generally are concerned, which ELI seeks to protect and promote, MHV argued that setting aside the resource consent would only result in the reactivation of the more permissive conditions of the previous discharge consent, which would be a retrograde step that would provide less protection to the receiving environment and prejudice and jeopardise the initiatives presently being taken to reduce nitrogen levels and improve water quality. MHV submitted that, should the consent decision be overturned, it would cause considerable uncertainty for the farming and wider communities of South Canterbury without any benefit to the environment.
122 RMA, s 107(2A).
123 Citing Winton Property Investments Ltd v Minister of Finance, above n 120.
[249] Finally, while not pleaded as a standalone defence, MHV emphasised the over three-year delay between the consent authority’s decision in April 2021 and the lodging of the application for review well over three years later, in August 2024. Looking forward, MHV noted the further delay that would occur if its application for the discharge consent was remitted back to the consent authority for reconsideration, particularly in the context of a consent that would expire at the end of 2030. It was noted that MHV’s application had been lodged as far back as June 2018, and that the outcome of any reconsideration of the consent application would not likely be until the middle of next year.
[250] Having regard to the delay, the uncertainty, and the continuation of the activity in the meantime pursuant to a more permissive consent, it was submitted that granting relief would undermine MHV’s environmental strategy, that included the implementation of farm environment plans and an extensive management practice regime. Notably, there would be no immediate cessation in the discharge onto or into land of contaminants entering water from farming activities in the meantime.
[251] It has been recognised that this Court should be slow to deny a remedy on the basis of the perceived inevitability of the outcome of a matter that otherwise would have been referred back to the decision-maker for reconsideration.124 Often it will not be inevitable that if a matter is returned for reconsideration the outcome will be the same, and with the opportunity for reappraisal comes the possibility of fresh evidence and new argument. It has been recognised that care is required to refuse relief on the basis of a perceived inevitable outcome lest that result in the Court inappropriately becoming involved in investigating or assessing the merits of a decision.125 However, I do not consider that risk arises in the present circumstances.
[252] In the ALI decision, this Court held the consent authority made a material error of law in its approach to the application of s 107 of the RMA. This resulted in the application for judicial review being granted, the discharge consent being set aside, and the irrigation scheme’s application being remitted back to the consent authority
124 Chiu v Minister of Immigration [1994] 2 NZLR 541 (CA); and Phipps v Royal Australasian College of Surgeons [2000] 2 NZLR 513 (PC).
125 Contact Energy Ltd v Electricity Commission HC Wellington CIV-2005-485-624, 29 August 2005.
for its reconsideration. ELI’s challenge to the decision to grant MHV a discharge consent, insofar as it related to the same alleged errors of law identified in the ALI decision, have been sustained in the present case. However, the legislative landscape has changed.
[253] Parliament has legislated for the very outcome of this challenge to the consent authority’s decision. The approach taken by the consent authority in both this case and the ALI decision has now been validated by the legislature. Should the matter be remitted back to the consent authority for reconsideration the outcome would be inevitable. In those circumstances, I do not consider it is appropriate to grant relief, other than to acknowledge that the Commissioner made a material error of law in her approach to the application of s 107 of the RMA, as enacted at the time of her decision. I decline to quash the consent or remit it back to the Council for reconsideration.
Overall conclusions
[254]I do not consider any error of law arises in respect of the notification decision.
[255] The Commissioner made a material error of law in her approach to the application of s 107 of the RMA, as that provision was enacted at the time of her decision. However, I decline to grant relief because the outcome of any reconsideration of the consent application would inevitably lead to the same result.
[256] While I accept the Commissioner erred in omitting to take into account various relevant provisions of coastal policy and planning instruments, I do not consider, in the circumstances, that error constituted a material error of law that was sufficient to invalidate the consent authority’s decision to grant the discharge consent.
[257] The Council’s decision not to revisit or revoke its previous decision to grant a resource consent that was made in the exercise of its jurisdiction as a consent authority was lawful. I do not consider s 46 of the Legislation Act can be utilised to reverse such a decision.
[258] Because of my findings in respect of whether s 46 may empower a consent authority to revoke a resource consent, I decline to make any declaration regarding the
application of that provision to resource consent decisions. Whether s 46 could potentially apply to such a decision may be dependent on the nature of the omission or error and the particular circumstances of the individual case.
Result
[259]The application for judicial review is dismissed.
Costs
[260] Having found the consent authority misapplied s 107 of the RMA, as it was then enacted, but that in the circumstances relief should be declined, and dismissed the other causes of action, I consider costs should lie where they fall.
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