Environmental Law Initiative v Canterbury Regional Council
[2024] NZHC 612
•20 March 2024
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2022-409-309
[2024] NZHC 612
BETWEEN ENVIRONMENTAL LAW INITIATIVE
Applicant
AND
CANTERBURY REGIONAL COUNCIL
First Respondent
ASHBURTON LYNDHURST IRRIGATION LIMITED
Second Respondent
Hearing: 23 and 24 May 2023 Appearances:
D A C Bullock and A W McDonald for Applicant
P A C Maw and E R M Maassen for First Respondent
B G Williams and R E Robilliard for Second RespondentJudgment:
20 March 2024
JUDGMENT OF MANDER J
This judgment was delivered by me on 20 March 2024 at 3.30 pm pursuant to Rule 11.5 of the High Court Rules 2016
Registrar/Deputy Registrar Date: .
ENVIRONMENTAL LAW INITIATIVE v CANTERBURY REGIONAL COUNCIL [2024] NZHC 612 [20
March 2024]
Table of Contents
Background.......................................................................................................... [3]
The discharge consent......................................................................................... [8]
Description of the affected environment.......................................................... [16]
The discharge consent decision......................................................................... [20]
The grounds for judicial review....................................................................... [26]
The alleged misapplication of the requirements of s 107 of the RMA[28]
Relevant statutory provisions[29]
ELI’s argument[31]
Commissioner’s findings[34]
Analysis[36]
Does s 107(3) apply as another exception?[44]
Analysis of application of s 107(3)[52]
Conclusion regarding application of s 107(3)[56]
Irrelevant considerations[58]
Failure to consider relevant matters[62]
Conclusion[76]
Failure to consider relevant plans and policies............................................... [80]
Is the Discharge Area part of the coastal environment?[86]
Consequential downstream effects[99]
The NZCPS[101]
The RCEP[115]
The Land and Water Regional Plan[120]The respondents’ position[122]
The RCEP[131]
Analysis[133]
Conclusion[148]
The notification decision................................................................................. [149]
The legislative framework[150]
Recommendation analysis[151]
Alleged erroneous determination that broader notification precluded[156]
Alleged failure to consider special circumstances and provide reasonsthat no special circumstances existed[164]
The recommendation memorandum[173]
Allegation that special circumstances did exist[180]
Scale and effect of the activity[191]
Discharge consent application made shortly before NPSFM came intoforce[197]
Community drinking water supplies[200]
Alleged significant public interest[203]
Employment of the “matrix method”[207]
Use of the “overseer model”[209]Conclusion[212]
Overall conclusion............................................................................................ [215]
Relief................................................................................................................. [216]
Costs.................................................................................................................. [217]
[1] Ashburton Lyndhurst Irrigation Ltd (ALI) is a farmer owned cooperative that operates an irrigation scheme in Mid Canterbury receiving and supplying water to its shareholders. As a result of a decision by an independent hearings commissioner (the Commissioner) acting under delegated authority, the Canterbury Regional Council (the Council) granted ALI’s application for a resource consent to discharge nutrients onto or into land from farming activities between the Hakatere/Ashburton and Rakaia Rivers (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 and the grant of the discharge consent. It claims the Council made errors of law in making its notification decision for the discharge consent, misapplied the requirements of the Resource Management Act 1991 (RMA), and failed to consider and apply relevant planning instruments. On the basis of these alleged errors, ELI seeks declarations and orders quashing the notification and discharge decisions. The Council and ALI refute there are grounds for review and deny the notification and discharge consent decisions were the subject of errors of law.
Background
[3] ALI is an irrigation scheme as defined under the Canterbury Land and Water Regional Plan (the Land and Water Regional Plan).2 It receives water from the wider Rangitata Diversion Race Scheme that was developed in the 1940s by the Public Works Department and on-supplies it to its shareholders. The Crown divested the scheme to ALI in 1991, and in recent times it has upgraded the scheme from a gravity- fed open channel system to a network of pressurised pipes, and from a system involving border dyke flood irrigation to a more efficient spray irrigation method.
1 ELI is an incorporated charitable trust board. 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 Canterbury Regional Council Canterbury Land and Water Regional Plan (2017) [Land and Water Regional Plan]. 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] ALI has water supply agreements with its 238 shareholders, who are required to comply with the rules and obligations of the irrigation scheme.3 In addition to delivering water and managing irrigation infrastructure for its shareholders, ALI holds the resource consent to irrigate shareholder land and carries out environmental management and self-auditing of its shareholders to assess whether they are complying with their environment plans and assists with improving their farm management practices.
[5] In mid-2018, ALI applied for a resource consent to replace its existing discharge permit which it jointly held at that time with another irrigation scheme operated by MHV Water Ltd (MHV). This consent was due to expire in May 2019. An extensive process followed that included the Council deciding in September 2020 that the discharge consent application would be notified on a limited basis to only one party, Te Rūnanga o Ngāi Tahu (the notification decision). Te Rūnanga o Ngāi Tahu opposed the discharge consent application with the support of Te Rūnanga o Arowhenua. The substantive consent application was heard in February 2021 by the Commissioner and a decision was issued in June of that year (the discharge consent decision).4
[6] The application for the discharge consent was made pursuant to the Land and Water Regional Plan, which provides objectives, policies and rules concerning the management of water quality and activities that involve the discharge of contaminants from farming activities onto or into land that may enter water. Irrigation schemes are specifically provided for under this plan. Rule 5.62 enables an irrigation scheme to apply for a 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.
[7] Subject to the fulfilment of certain prerequisites, rr 5.41 and 5.60 of the Land and Water Regional Plan provide that the use of land for a farming activity is a
3 ALI farms currently cover approximately 31,486 ha within a total proposed nutrient discharge area of 177,000 ha. The farming activities within ALI’s nutrient discharge area in 2019 included arable farming (22 per cent), commercial vegetable production, dairy support (12 per cent), dairy farming (51 per cent), horticultural farming, intensive winter grazing, and pastoral farming (15 per cent).
4 Resource Consent Application CRC185469 – Ashburton Lyndhurst Irrigation Ltd Report and Decision of the Hearing Commissioner (3 June 2021) [Discharge Consent decision].
permitted activity for properties managed by an irrigation scheme with a resource consent under r 5.62. By ALI securing a resource consent to discharge nutrients, the land use for farming activities of all its shareholders was also able to be authorised.
The discharge consent
[8] The discharge consent “authorises the discharge onto or into land where contaminants may enter water arising from farming land use activities” on specified properties listed in a schedule to the consent (the property schedule), the owners of which are shareholders in ALI. These properties are in an area variously described as “the Command Area” or the “Nutrient Discharge Area” (the Discharge Area) that is bordered by the Rakaia River to the northeast and extends a short distance beyond the Hakatere/Ashburton River to the southwest.5 It encompasses the entire plains area between these boundaries, from the foothills of the Southern Alps to the sea.
[9] The boundary of the Discharge Area is illustrated in the annexed plan which is included in the discharge consent. The shaded area, described as “ALI farms”, represents the properties listed in the schedule to the discharge consent. The Hakatere/Ashburton River runs between the southern boundary and the ALI farms.6 The scope of the discharge consent is stated as extending beyond the properties listed in the schedule to what is described in the discharge consent as the “expansion of dairy support land and irrigated dairy farm land, conversion of land to dairy farm land and the undertaking [of] intensive winter grazing” located within the Discharge Area.
[10] The primary contaminant with which the discharge consent is concerned is nitrogen, although it authorises the discharge of other contaminants, including phosphorous and sediment, entering water as a result of farming land use activities. These contaminants are the subject of surface water quality monitoring, but the measurement and management of nitrogen is recognised as the established approach to regulating the effects of discharges of nutrients from farming land uses.7
5 This area is referred to in the discharge consent as “the Command Area”.
6 Plan CRC185469A — see Appendix A.
7 See s 42A report prepared for the purpose of hearing the discharge consent application — long- term groundwater quality monitoring focuses on nitrate nitrogen as an indicator parameter of the effects of intensive land use on groundwater quality.
[11] The discharge consent provides for a Nitrogen Discharge Allowance (NDA) which sets a total limit on the amount of nitrogen that can be discharged for the whole scheme. As noted, the discharge consent authorises discharges onto or into land where contaminants may enter water as a result of farm use in respect of the properties listed in the property schedule. ALI is permitted to add or remove properties from the property schedule so long as the NDA is not exceeded. Any such additions may be made by ALI without further regulatory approval or assessment. However, an updated property schedule is required to be provided to the Council each year, should any properties be added or removed, together with an updated map and nitrogen calculations. The Council submitted this allows it to monitor the effects of the discharge consent and maintain oversight.
[12] ELI highlighted that properties within the Discharge Area may be joined to ALI’s scheme, even if not irrigated by ALI supplied water, and have their nutrient discharge managed by ALI under the discharge consent. These properties, which are included in the property schedule, are defined in the discharge consent as “Associated Properties”.8 Because this associated land may form part of a shareholder’s overall farming operation, it was considered the whole farming operation should be covered by the same discharge consent.
[13] As noted, the discharge consent sets an NDA and requires the properties to operate in accordance with the requirements of the Land and Water Regional Plan. ALI must prepare and implement an “Environment Management Strategy” and an “Audited Self-Management Program” to ensure compliance with the discharge consent. Each of its properties must implement good management practices and make necessary reductions to its nutrient losses over time. The discharge consent also requires ALI to have audit reporting procedures that ensure a high level of compliance with farm environment plans and annual nutrient loss audits of properties, the results of which are required to be made available to the Council to inspect upon request. Further requirements are a surface and groundwater monitoring programme and an environment monitoring plan that includes the preparation of a remediation and
8 Associated Properties are defined in the discharge consent as:
Properties which are not Authorised Properties and which do not receive irrigation water from the Ashburton Lyndhurst Irrigation Scheme, but which are Properties where the nutrient losses are managed by the Consent Holder:
response plan in consultation with Te Rūnanga o Arowhenua in the event water quality outcomes deteriorate.
[14] Most significantly, the discharge consent requires the NDA to be reduced from 1 January 2025 by 10 per cent from the current 2020 nitrogen leaching load; and from 1 January 2030 by 20 per cent from the current 2020 load.9 This required reduction is reflective of key changes to ALI’s resource consent application, which was modified to include a commitment to making staged reductions in the NDA over the duration of the consent. The efficacy of this proposal, in terms of whether it would improve groundwater and surface water quality in the wider receiving environment, including the Hakatere/Ashburton River and hāpua (lagoon) over the period of the consent, was the subject of considerable focus at the hearing of the discharge consent. The degree to which ALI’s proposed reduction in nitrogen loads by its shareholders would have on the nitrogen concentrations in the groundwater and the anticipated improvements in both groundwater and surface water quality over the 10-year term of the consent became a critical factor for the decisionmaker.10
[15] The Commissioner accepted ALI’s evidence that the proposed nitrogen load reductions from current levels could be achieved within the stated timeframes and that this would result in measurable improvements in water quality and ecological values in the receiving environment within the term of the discharge consent. The legality of the reliance placed on that finding to support the grant of the discharge consent is a significant issue raised by these proceedings.
Description of the affected environment
[16] For the purposes of her decision, the Commissioner adopted the description of the affected environment set out in the assessment of environmental effects that accompanied the application and the Council prepared reports prepared pursuant to s
9 Current 2020 Load is defined in the discharge consent as:
The nitrogen leaching load at the end of 2020, calculated using the Matrix Method or any other equivalent method approved by the Chief Executive of Environment Canterbury.
10 The terms concentration and loads were explained in evidence as:
“Nitrogen concentration” — the concentration of nitrogen in soil drainage water discharged from beneath the root zone, usually expressed as mgN/L or PPM.
“Nitrogen load” — the total amount of nitrogen emitted below the root zone, usually expressed as t N/yr.
42A of the RMA.11 The natural ecosystems affected by the permitted discharge include the Rakaia and Hakatere/Ashburton Rivers. The latter is an alpine and hill fed river which flows over 100 km before it reaches the sea at the Hakatere hāpua. The river gains water from groundwater in its downstream reaches and follows a course adjacent to ALI farms. There are a number of spring fed tributaries that flow directly into the Hakatere/Ashburton River and small coastal dongas located to the north of the Hakatere/Ashburton River mouth. Both the Rakaia and Hakatere/Ashburton Rivers are described as providing outstanding habitat for many rare birds, fish, plants, and other species, as well as a wide range of recreational values.
[17] In regard to the groundwater environment, the s 42A reports recorded that the direction of the overall groundwater flow was toward the coast and that there was an overall increasing trend in nitrate-nitrogen concentrations, particularly in bores close to the coast. Groundwater is expected to discharge via offshore seepage and springs in the area north of the Hakatere/Ashburton River.
[18] The Hakatere hāpua was described as an important downstream receiving environment:
The Hakatere hāpua is a predominantly freshwater coastal lagoon with a mouth that is generally open to the sea. It is a dynamic environment influenced by the tide, and its physical habitat and morphology, including the location of the mouth opening, is heavily impacted by the amount of flow in the Hakatere/Ashburton River. It supports breeding, rearing and feeding habitat for numerous native bird and fish populations, including those classified as threatened. It also supports sports fisheries, and therefore contains high recreation as well as ecological and cultural values.
[19] The s 42A report highlighted that the hāpua is currently in a vulnerable ecological state. This was reflected in the Commissioner’s decision by reference to a supplementary s 42A report:
92. Mr Arthur’s technical review noted that the key adverse effects on the surface water receiving environment related to increased periphyton growth, which can smother aquatic habitat stressing aquatic invertebrates and fish communities. He highlighted the vulnerable
11 Resource Management Act 1991, 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.
state of the Hakatere hāpua to worsening eutrophication and declines in ecological health, due to total nitrogen concentrations being below [The National Policy Statement for Freshwater Management] national bottom lines. ...
The discharge consent decision
[20] The Commissioner accepted agricultural land use was the primary source of nutrients leaching into groundwater and the ALI scheme, together with other irrigation schemes in the area, were significant contributors to nitrogen loads in the catchment. The Commissioner held it was clear the ALI scheme contributed to the widespread degradation in the groundwater receiving environment. The Commissioner found on the evidence groundwater quality is degraded and that nitrate-nitrogen concentrations in many bores at a range of depths are impacted by past and current land use activities in the Discharge Area. The Commissioner further found that the degradation of groundwater quality is closely linked to the degradation of downstream surface water quality and declining ecological values in the lower Hakatere/Ashburton River and its hāpua.
[21] The Commissioner accepted nitrate-nitrogen concentrations in monitored bores under the ALI scheme have generally increased over the period 1992 to 2018, with significant increases since the early 2000s coinciding with large conversions to spray irrigation and dairy production.
[22] The Commissioner acknowledged ALI’s modified application that proposed staged reductions in nitrate-nitrogen concentrations based on the current 2019/2020 levels increased the prospect of there being no further increase in nitrogen inputs into the catchment in the ALI scheme. However, the Commissioner observed it was difficult to determine what these staged reductions will translate to in the groundwater quality and ecological health of the receiving environment. The Commissioner explained the difficulty in the following way:12
125.Dr Treweek’s calculated reduction in nitrate-nitrogen concentrations show the proposed nitrogen load reductions will not result in commensurate reductions in drainage concentrations. In fact, the amended estimates illustrate the very small (2% and 1.2%) reductions in nitrate-nitrogen concentrations expected from the 10% and 20%
12 Discharge Consent decision, above n 4.
reductions in nitrogen loads. This indicates the implications of the ‘legacy’ nitrogen loads that are present in the soil beneath the [Discharge Area] that have been discharged under the previous consents and have continued to increase over recent years. It also indicates any small decreases [in] concentrations from reductions in nitrogen loads will occur over relatively long timeframes and that built-up concentrations of contaminants are likely to continue to be discharged into groundwater and surface water. Mr Callander’s evidence regarding 20-45 year long groundwater flow paths increases my concern regarding the movement of these nitrogen loads through the system.
126.It is clear from the evidence of Dr Treweek and Ms Harris that to achieve the required 10% reductions by 2025, all [ALI] farms will need to be operating at an ‘A’ audit grade by 2025 with no land use changes that could increase nitrogen losses; and that the required 20% reductions by 2030 can only be achieved by a number of farms implementing advanced mitigation and operating at an ‘A+’ audit grade, again with no increases in nitrogen losses. I accept this is achievable.
[23] Despite the Commissioner’s acceptance the proposed reductions are achievable, she acknowledged the uncertainty as to whether they would be sufficient to result in measurable improvements in groundwater and surface water quality over the 10-year term of the discharge consent. After noting the steps necessary to ensure improvements would be achieved, the Commissioner observed these requirements would effectively give ALI five years to prove the proposed reductions would be sufficient to demonstrate that measurable improvements in the receiving environment would be made within the 10-year consent term, or whether more substantial reductions would be required to achieve this.
[24] The Commissioner, in summarising her decision to grant the discharge consent, stated:13
142. I am satisfied that this application acknowledges the magnitude of the changes required and sets realistic staged reductions. This is consistent with the clear requirements to reduce nutrient inputs into the receiving environment from land use activities and improve ecological values. The uncertainty is how soon this improvement will occur (in both groundwater quality and surface water quality) and how great the nitrogen reduction (load) will need to be to significantly reduce nitrate-nitrogen concentrations in groundwater and surface water. However, I accept the Applicant’s evidence that the volunteered nitrogen load reductions from current levels can be achieved within five years and again in 10 years, and that this will result in measurable
13 Discharge Consent decision, above n 4.
improvements in water quality and ecological values in the receiving environment within the term of the consent.
[25]The Commissioner’s overall conclusion was:14
158.The previous consent to discharge contaminants within the scheme’s [Discharge 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.
159.This 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 existing environmental degradation. It is a significant step in the right direction and it is now up to the Applicant to demonstrate that the necessary reductions can be made and that these staged reductions are sufficient to result in meaningful environmental improvements. I accept the evidence that this will be challenging, but achievable.
The grounds for judicial review
[26] ELI brings its application for judicial review on the basis of three alleged errors of law that affected the decision to grant the discharge consent:
(a)a misapplication of the requirements of s 107 of the RMA which, properly applied, prohibited the granting of the consent;
(b)a failure to consider and apply, in accordance with s 104 of the RMA, relevant provisions of the New Zealand Coastal Policy Statement (NZCPS),15 the Regional Coastal Environment Plan for the Canterbury Region (RCEP),16 and the Land and Water Regional Plan;17 and
14 Discharge Consent decision, above n 4.
15 Department of Conservation New Zealand Coastal Policy Statement 2010 (issued by notice in the New Zealand Gazette on 4 November 2010 and taking effect on 3 December 2010) [NZCPS].
16 Canterbury Regional Council Regional Coastal Environment Plan (2005) (reprinted August 2020) [RCEP].
17 Land and Water Regional Plan, above n 2.
(c)a failure to consider whether special circumstances existed warranting public notification or wider limited notification, including a failure to give reasons and other errors of law in making that decision.
[27] On the basis of these alleged errors, ELI seeks declarations and orders quashing the notification decision and grant of the discharge consent. I address each ground of judicial review in the order they were presented in the parties’ written submissions and in oral argument at the hearing of the application.
The alleged misapplication of the requirements of s 107 of the RMA
[28] ELI alleged that in making her discharge consent decision the Commissioner erred in her application of s 107 of the RMA. It was submitted the Commissioner:
(a)Failed to recognise s 107 contains a series of prohibitions, or “environmental bottom lines”, that were engaged which prevented the grant of a resource consent in the absence of statutory exceptions having application.
(b)Having found as part of her determination that past and current land use practices have caused “significant adverse cumulative effects on aquatic life”, failed to recognise she was unable to grant the discharge consent if those effects were likely to continue or the limited statutory exceptions did not otherwise apply.
(c)Failed to consider relevant matters, namely the significant adverse effects on aquatic life from agricultural nutrient discharges in the receiving environment, and instead proceeded on a basis that considered irrelevant matters including a desire to avoid an outcome that required existing farming activities to cease.
Relevant statutory provisions
[29] ELI submitted the Commissioner misapplied s 107 of the RMA which prohibits the grant of a discharge permit that is likely to give rise to any significant adverse effects on aquatic life. The RMA relevantly provides:
15 Discharge of contaminants into environment
(1)No person may discharge any—
(a)contaminant or water into water; or
(b)contaminant onto or into land in circumstances which may result in that contaminant (or any other contaminant emanating as a result of natural processes from that contaminant) entering water; or
(c)contaminant from any industrial or trade premises into air; or
(d)contaminant from any industrial or trade premises onto or into land—
unless the discharge is expressly allowed by a national environmental standard or other regulations, a rule in a regional plan as well as a rule in a proposed regional plan for the same region (if there is one), or a resource consent.
...
107 Restriction on grant of certain discharge permits
(1)Except as provided in subsection (2), a consent authority shall not grant a discharge permit or a coastal permit to do something that would otherwise contravene section 15 or section 15A allowing—
(a)the discharge of a contaminant or water into water; or
(b)a discharge of a contaminant onto or into land in circumstances which may result in that contaminant (or any other contaminant emanating as a result of natural processes from that contaminant) entering water; or
(ba)the dumping in the coastal marine area from any ship, aircraft, or offshore installation of any waste or other matter that is a contaminant,—
if, after reasonable mixing, the contaminant or water discharged (either by itself or in combination with the same, similar, or other contaminants or water), is likely to give rise to all or any of the following effects in the receiving waters:
(c)the production of any conspicuous oil or grease films, scums or foams, or floatable or suspended materials:
(d)any conspicuous change in the colour or visual clarity:
(e)any emission of objectionable odour:
(f)the rendering of fresh water unsuitable for consumption by farm animals:
(g)any significant adverse effects on aquatic life.
(2)A consent authority may grant a discharge permit or a coastal permit to do something that would otherwise contravene section 15 or section 15A that may allow any of the effects described in subsection (1) if it is satisfied—
(a)that exceptional circumstances justify the granting of the permit; or
(b)that the discharge is of a temporary nature; or
(c)that the discharge is associated with necessary maintenance work—
and that it is consistent with the purpose of this Act to do so.
(3)In addition to any other conditions imposed under this Act, a discharge permit or coastal permit may include conditions requiring the holder of the permit to undertake such works in such stages throughout the term of the permit as will ensure that upon the expiry of the permit the holder can meet the requirements of subsection (1) and of any relevant regional rules.
[30] There is no dispute the present case involves the discharge of a contaminant that is not otherwise expressly allowed by a national environment standard or plan. A resource consent is required to discharge contaminants onto or into land in circumstances where they may enter water.
ELI’s argument
[31] ELI argued s 107 of the RMA establishes a series of “environmental bottom lines” which, if not met, prevent the grant of a resource consent. It submitted s 107(1)(g) prohibits the grant of a discharge permit where if, after reasonable mixing, the contaminant or water discharged is likely to give rise to “any significant adverse effects on aquatic life”.18 The term “effect” includes any past, present, or future effect,
18 Resource Management Act, s 2, aquatic life has the same meaning as in s 2(1) of the Fisheries Act 1996, which provides: (a) means any species of plant or animal life that, at any stage in its life history, must inhabit water, whether living or dead; and (b) includes sea birds (whether or not in the aquatic environment).
be it positive or adverse, that is temporary or permanent and includes any cumulative effect which arises over time or in combination with other effects.19 ELI emphasised that, in accordance with the RMA’s protective approach to water and species that depend on water, for the purposes of s 107, a decisionmaker need only be satisfied that any effects would be likely to occur.
[32] The prohibition on a consent authority granting a discharge permit that would allow the consequences set out in s 107(1), including discharges that are likely to give rise to any significant adverse effects on aquatic life, is subject to the exceptions provided by subs (2), namely:
(a)“exceptional circumstances” justifying the granting of the permit;
(b)where the discharge is of a temporary nature; or
(c)the discharge is associated with necessary maintenance work.
[33] ELI maintained these qualifying exceptions provide the only pathways by which the s 107(1) prohibition can be avoided if the discharge is likely to give rise to significant adverse effects on aquatic life.20 There is no dispute the exceptions provided by subs (2) are not engaged. The Commissioner did not consider whether any exceptional circumstances existed, nor was it contended for the purpose of these proceedings they had application. There can also be no controversy that the Commissioner determined that past and current land use practices in the Discharge Area have contributed to significant adverse cumulative effects on aquatic life in the lower reaches of the Hakatere/Ashburton River and hāpua.
Commissioner’s findings
[34] The Commissioner found that agricultural land was the primary source of nutrients leaching into water and that ALI’s scheme had contributed to the widespread degradation in the groundwater receiving environment which was sensitive to nutrient
19 Resource Management Act, s 3.
20 Citing Fonterra Co-operative Group Ltd v Manawatu-Wanganui Regional Council [2013] NZEnvC 250 at [25], [55] and [183].
inputs from farming activities. The Commissioner further found that surface water quality in the Hakatere/Ashburton River and its hāpua was degraded and this had resulted in declining ecological values. Notably, the Commissioner observed what she described as the “legacy” nitrogen loads, that had built up over the years and been discharged under previous consents, had continued to increase over recent times.
[35] It was likely these “legacy” nitrogen loads would continue to be discharged into the water for many years as they leached through the soil. The Commissioner considered there was no evidence that ongoing increases of nitrogen in the receiving waters had stabilised. To the contrary, it was found this was unlikely in view of ongoing increases in irrigation, stock numbers and fertiliser use in the area. The Commissioner held there were cumulative significant adverse effects on aquatic life in the lower reaches of the Hakatere/Ashburton River and hāpua that had been contributed to by past and current land use practices in the Discharge Area.
Analysis
[36] A marked feature of ALI’s application for the discharge consent was that it was sought in replacement of the previous resource consent that was found to have given rise to the prohibited effects that trigger the restriction imposed by s 107. It was evident a continuation of that activity in the same terms, or at the same level, would result in the perpetuation of the same significant adverse effects and be rejected.
[37] Absent the s 107(2) exceptions having application, it is difficult, at least at first blush, to discern how the prohibition on the grant of a consent that would allow the discharge of a contaminant or water that is likely to give rise to any significant effects on aquatic life would not apply. The Commissioner appears to have appreciated that outcome when she accepted that past and current land use practices have contributed to significant adverse cumulative effects on aquatic life in the lower reaches of the Hakatere/Ashburton River and hāpua, and that the receiving environment would be highly sensitive to any increase in nutrient discharges because of the currently degraded state of groundwater and surface water in the lower catchment. However, leaving aside any increase in nutrient discharges, it must follow that a continuation of
the present level of nutrient discharges will likely, for the time being, continue to result in significant adverse effects on aquatic life.
[38] The Commissioner, in addressing s 107, sought to reconcile her factual findings with the requirements of s 107(1) by relying on ALI’s “commitment to staged nitrogen reductions and continuous improvement”. This was a reference to the proposed reductions in nitrogen losses set out in ALI’s revised application that were to be incorporated as conditions of the discharge consent. The Commissioner considered that without those reductions, s 107 would have prevented her from granting consent. The Commissioner held that with the imposition of these and other proposed conditions, the cumulative effects on aquatic life in the receiving waters would be “monitored, reduced and, with time, remedied”.21 However, until these improvements have been achieved and substantial improvements made to the receiving environment, the current significant adverse effects on aquatic life will endure.
[39] The Commissioner described the proposed conditions requiring future staged reductions in nitrogen loads by ALI as effectively giving it five years to prove that the proposed reductions will be sufficient to demonstrate that measurable improvements in the receiving environment will be made within the 10-year discharge consent term, or whether more substantial reductions would be required to achieve this. The discharge consent conditions that require a reduction in nitrogen loads do not apply until the halfway stage of the permit, but to achieve the five-year targeted reductions there is an obvious need to implement improvements and immediately reduce nitrogen losses.
[40] Notwithstanding the Commissioner’s acceptance that it was difficult to determine whether these staged reductions would result in improvements to the ecological health of the receiving environment, ALI was permitted to continue to operate on the basis of anticipated, albeit uncertain, improvements from reduced nitrogen loads that are to be achieved by 2025 and 2030. On the Commissioner’s own findings, this must mean that, at least in the interim, until there is some discernible and
21 Discharge Consent decision, above n 4, at [154].
sustainable reduction in nitrogen loads the significant adverse effects on aquatic life will continue.
[41] The discharge consent was granted on the basis of the modified application that included optimum good management practices relating to water quality and the achievement of staged reductions in nitrogen losses after five and 10 years, in the anticipation the adverse cumulative effects on the receiving environment would be mitigated and reduced. It was envisaged there would be measurable environmental improvements over the term of the discharge consent. However, the discharge consent imposed no mandatory requirement for immediate reductions in nitrogen losses. On its face, it permitted, at least in the interim, a continuation of the past discharge of contaminants that cumulatively and causally contributed to significant adverse effects on aquatic life which the Commissioner had found to be subsisting in the Hakatere hāpua. The term “effect” under the RMA extends to any past effect and any cumulative effect which arises over time.22 It is thus difficult to avoid the conclusion that, in the absence of any prescribed immediate reductions in the permitted level of discharge, this activity would likely sustain or contribute to the continuation of the present significant adverse effects on aquatic life, at least in the short term, whatever ultimate improvements may be achieved over the life of the consent.
[42] ALI submitted the Commissioner’s decision involved an evaluative judgment of whether the grant of a consent in the terms sought would likely give rise to significant adverse effects on aquatic life. ALI argued that such an assessment was not amenable to judicial review. While I accept the Commissioner undertook an analysis across the life of the permit, s 107(1) is focused on the issue of whether granting a permit to discharge contaminants is likely to give rise to a prohibited outcome. Because of the Commissioner’s findings as to the state of the receiving environment, a consent that, at least initially, permits the continuation of the same previously authorised activity that has been found to have contributed to the existing prohibited consequence must inevitably breach that prohibition. Applying the Commissioner’s own evidential findings to the statutory requirements of s 107 and the terms of the discharge consent as granted does not involve an evaluative assessment
22 Resource Management Act, s 3.
of the merits of the decision but an analysis of whether the discharge consent could be lawfully granted.
[43] The current state of the receiving environment is the product of the legacy of the unsustainable discharge of contaminants. While this is sought to be arrested by the introduction of required staged reductions over the course of a new discharge permit, the discharge consent decision allows for the continuation of discharges at a level that will likely continue to give rise to the maintenance of ongoing significant adverse effects. This will continue at least until such time as the anticipated benefits of the five and 10-year reductions may improve the significant deleterious effects on the receiving environment. That being the case, s 107(1) applied.
Does s 107(3) apply as another exception?
[44] In the absence of any of the subs (2) exceptions having application, the grant of a discharge permit in such circumstances would contravene s 107 of the RMA. However, the Council disputed the qualifying exceptions listed in subs (2) provide the only pathway by which compliance with s 107 can be achieved once it is established the discharge is likely to give rise to any significant adverse effects on aquatic life. Reliance was placed on s 107(3) which, for ease of reference, is repeated:
(3)In addition to any other conditions imposed under this Act, a discharge permit or coastal permit may include conditions requiring the holder of the permit to undertake such works in such stages throughout the term of the permit as will ensure that upon the expiry of the permit the holder can meet the requirements of subsection (1) and of any relevant regional rules.
[45] The Council argued subs (3) enabled the Commissioner to grant the discharge consent on the basis of ALI’s staged nitrogen reductions. It was submitted a plain reading of s 107(3) means the discharge consent could be granted if conditions were imposed to ensure the requirements of subs (1) will be met by the end of the term of the discharge consent. The Council submitted it was implicit from the Commissioner’s reasoning that she was relying on subs (3) in the way she approached her final decision regarding s 107. In response, ELI maintained the Council’s position was misconceived and subs (3) cannot validate the grant of a resource consent where there is non-compliance with subs (1).
[46] It is unclear whether the Commissioner’s reliance on the imposition of conditions requiring staged reductions in nitrogen loads rested on the application of subs (3) when addressing the question of compliance with s 107. ELI argued subs (3) cannot be deployed in that way and that the statutory scheme prohibits the grant of a discharge permit that would otherwise contravene s 15 if it is likely to give rise to the effects described in s 107(1), unless one of the three exemptions specified in subs (2) apply and the grant of the discharge permit is consistent with the purposes of the RMA. ELI submitted subs (3) is limited to empowering the imposition of conditions in a resource consent only after it has been determined it can be granted pursuant to one of the stipulated exemptions.
[47] Support for that view was taken from the wording of s 107(1), which states, “[e]xcept as provided in subsection (2), a consent authority shall not grant a discharge permit ... to do something that would otherwise contravene s 15...”. It was submitted these introductory words contemplate the only exceptions to the prohibition created by subs (1) are those found in subs (2), which explicitly empower the grant of a discharge permit, that would otherwise contravene s 15.
[48] ELI argued subs (3) is limited to empowering the decisionmaker to impose conditions to mitigate the detrimental effects of discharges permitted by granting a permit in the restricted circumstances allowed by subs (2). It submitted subs (3) provides the means by which the decisionmaker can regulate the permitted activity by requiring works to be undertaken across the term of the permit to address the adverse consequential effects described in subs (1). ELI argued that, by this means, the consenting authority can impose on the consent holder obligations to ensure these detrimental effects are resolved by the expiry of the discharge permit.
[49] ELI also referred to the legislative history of s 107 in support of its position. Section 107(3) as it currently exists was enacted as a result of a 1993 amendment to the RMA that also introduced an additional exception to s 107(2), namely, a discharge associated with necessary maintenance work.23 It submitted Parliament’s decision to introduce subs (3) in its current form, together with a further exception provided in
23 Resource Management Amendment Act 1993, s 57(3) and (4).
subs (2), is consistent with subs (3) applying to a situation where a permit has been granted as a result of a subs (2) exception to the prohibition contained in subs (1) having application, and is limited to that situation.
[50] ELI also referred to the explanatory note to the relevant amending bill in support of this argument. The relevant part of the explanatory note reads:
Clause 53 amends s 107 of the principal Act which sets out restrictions on the granting of certain discharge permits.
The first two amendments extend the provision to coastal permits.
The third amendment allows discharge permits to be granted if the discharge is associated with necessary maintenance work.
The fourth amendment repeals subs (3) and substitutes a new subsection. The matters provided for in the old subs (3) are dealt with more fully in the new s 113(2) (see clause 55).
The new subs (3) allows conditions to be imposed allowing the holder of a permit to undertake works in stages.24
[51] ELI argued the explanatory note refers to the new subs (3) as being a provision allowing conditions to be imposed on a permit holder who has otherwise been granted a permit in accordance with s 107. This is to be contrasted with the explanatory note’s description of the amendment to subs (2), which added a maintenance work exemption (described as “the third amendment”) as a clause that “allows discharge permits to be granted ...”. It is implicit therefore that had Parliament intended to allow permits to be granted (that did not comply with s 107(1) or fall into the explicit exceptions listed in subs (2)) by the imposition of conditions to permit work to be undertaken in stages to ensure the requirements of subs (1) would be met at the permit’s expiry, it would have explicitly referred to the amended subs (3) as being a route by which discharge permits could be granted on such terms.
24 Resource Management Amendment Bill 1992 (212-1). The previous s 107(3) provided that where, in accordance with sub (2), a consent authority grants a discharge permit which allows any of the effects described in subs (1), the authority shall include in its decision its reasons for doing so.
Analysis of application of s 107(3)
[52] There is little authority regarding the application of s 107. The Environment Court considered the provision in Fonterra Co-operative Group Ltd v Manawatu- Wanganui Regional Council.25 That case involved an application by Fonterra for a consent to discharge condensate from its milk processing plant into a stream. Section 107(1) was engaged. However, the discharge was categorised as falling within the “exceptional circumstances” and “temporary” categories of subs (2) because of Fonterra’s commitment to establishing new processes and systems that would be operational within a stipulated period of “1 year or so from the date of the decision”.26
[53] ELI referred to the Environment Court’s description of s 107 as precluding a consent authority from granting a discharge permit which breaches certain environmental standards, unless the proposal falls within the identified exemptions. No reference is made to subs (3). While the case appears to have some similarities with the present, insofar as it involves the imposition of conditions where an ongoing discharge may have significant adverse effects on aquatic life that would otherwise preclude a discharge permit being granted, the issue was dealt with solely on the basis of subs (2). Little assistance can therefore be gleaned from that decision.
[54] It is not necessary for me to come to any concluded view regarding whether the application of subs (3) is limited to discharge permits that would otherwise contravene subs (1) but which fall within an exception provided by subs (2). Subsection (3) is capable of being read consistently with the exceptions to the subs (1) “baseline” but also with subs (1) itself. In regard to the latter application, the cumulative effects of a discharge over the duration of a permit may likely give rise to the prohibited detrimental effects identified in subs (1)(c)–(g) at some point across its term. Subsection (3) provides a consent authority with the ability to grant a discharge permit that will meet the requirements of subs (1) throughout its duration. Conditions can be imposed to ensure that by the expiry of the permit the holder will still be meeting the requirements of subs (1). By the use of conditions the discharge can be assessed as one that is not likely to give rise to the prohibited effects in the receiving
25 Fonterra Co-operative Group Ltd v Manawatu-Wanganui Regional Council, above n 20.
26 At [31].
waters, which may not otherwise have been the case in the absence of certain requirements being imposed on the holder of the permit to undertake works “in such stages throughout the term of the permit”.
[55] Subsection (3) may have been enacted for the purposes of subs (2), but subs (3) also provides a means by which permits can be granted in respect of discharges that are likely to give rise to prohibited detrimental effects in the receiving waters over the term of the proposed consent unless works are undertaken to ensure the requirements of subs (1) are not breached during the life of the permit. Subsection (3) can be read in a manner that is consistent with the prohibition contained in subs (1) that prevents a discharge permit from being granted if the contaminant or water is likely to give rise to the stated detrimental effects.
Conclusion regarding application of s 107(3)
[56] The prohibition contained in subs (1) was expressly made subject to the exceptions set out in subs (2). If subs (3) was intended to provide an additional exception, it is not clear why it would not have similarly been expressly provided for in subs (1). As already discussed, subs (3) can be read consistently with subss (1) and (2). As I have observed, subs (3) provides a means by which a consent authority can satisfy itself that adverse effects are not likely to arise if a discharge permit is granted on conditions requiring the holder to undertake “such works in such stages throughout the term of the permit”, which will ensure that by its end the permit holder can (still) meet the requirements of subs (1). Equally, the imposition of conditions may be the basis upon which a consent authority is willing to grant a permit in the limited circumstances provided by subs (2).
[57] However, it does not follow from that analysis that a permit can be granted by a consent authority where none of the subs (2) exceptions apply if from the outset the consented activity would breach subs (1). Such an outcome is not reconcilable with s 107 when that provision is read in context and as a whole. The grant of a discharge permit is premised on compliance with subs (1) unless the consent authority can be satisfied the statutory exceptions set out in subs (2) apply. I do not consider Parliament intended that subs (1) could be avoided by a consent authority granting a discharge
permit on terms that were likely to contribute to the continuation of the prohibited effects (if only in the interim or short to medium term) in the anticipation that by the permit’s end there would be compliance with the statutory requirements, at least not in the absence of the explicit exceptions provided by subs (2) having application.
Irrelevant considerations
[58] The challenge to the Commissioner’s assessment of s 107 was also framed as an alleged error of law by taking into account irrelevant matters, namely conditions requiring the monitoring and reduction of nitrogen loads from 1 January 2025. It was submitted those considerations were irrelevant to whether the continued discharge of a contaminant into or onto land or water was likely to give rise to significant adverse effects on aquatic life after the consent was granted.
[59] In light of my finding that s 107 was misapplied, it is not strictly necessary to address this related alternate argument. However, based on the Commissioner’s own factual findings, in the absence of any of the exceptions listed in s 107(2) having application and the continuation of the cumulative significant adverse effects on aquatic life in the lower reaches of the Hakatere/Ashburton River and hāpua after the purported grant of the discharge consent, conditions requiring a reduction in the nitrogen load that was to be achieved years after the permit’s grant appears to be an irrelevant consideration when assessing whether s 107(1) prohibited the issue of a resource consent.
[60] ALI argued that, to the extent the discharge consent conditions required staged nitrogen reductions and continuous improvements to form part of the consented activity, they cannot have been an irrelevant consideration. I accept that would be so if the terms of the discharge consent prevented s 107(1) from being breached. However, that submission overlooks that the discharge consent from its outset permits the continuation of an activity that is giving rise to prohibited consequences and the need to assess the effects of the discharge permit, for the purpose of s 107(1), from its commencement, rather than on the basis of what could be achieved in the future over the duration of the discharge consent.
[61] ELI also submitted the Commissioner placed apparent reliance in her decision on a stated desire to avoid an outcome that abruptly required existing farming activities to cease. It argued it was not open to the Commissioner to take a normative view of whether the activity ought be allowed to continue or not given the requirements of s 107. While the Commissioner did aver to the potential effect on existing farming land use, it is not apparent this observation was factored into her consideration of s 107 which, as previously discussed, placed reliance on ALI’s proposal to make staged nitrogen reductions and a program of continuous improvement.
Failure to consider relevant matters
[62] ELI was critical of the Commissioner’s decision as being largely devoid of analysis of the impact on aquatic life. It was submitted the decision focused on the state of the receiving environment generally instead of specifically considering adverse effects on relevant aquatic life. This critique was somewhat surprising given the challenge previously traversed rested on the Commissioner’s findings there were significant adverse effects on aquatic life from agricultural nutrient discharges in the receiving environment. Such a finding is a prerequisite to the prohibition set out in s 107(1).
[63] This argument appears to have been made in justification of further evidence about the range of aquatic life in the receiving environment and as an alternative challenge to the Commissioner’s finding that s 107 did not prevent the grant of the discharge consent. ELI argued that in the absence of a focused consideration of the effects on aquatic life and specific evidence regarding such impacts, the Commissioner could not reach such a conclusion. It submitted the evidence sought to be introduced demonstrated the significant adverse effects on aquatic life, even if nutrient discharges are reduced, as required by the discharge consent conditions, and that this type of evidence should have been before the Commissioner and considered by her but was not.
[64] Objection was taken to the admissibility of the expert evidence sought to be tendered for the purposes of the judicial review proceeding. The Council referred to the Court of Appeal’s decision in Roussel Uclaf Australia Pty Ltd v Pharmaceutical
Management Agency Ltd, that held it was not appropriate to permit affidavits to be read which contain material that had not been before the decisionmaker and which had largely been brought into existence after the decision had been made for the purpose of casting doubt on its merits.27 While the Council acknowledged some expert evidence can legitimately be received for the purposes of judicial review proceedings, it submitted such material should be confined to matters of fact relating to the decision- making process and its background, and not opinion going to the substance of the proceeding. The Council argued that significant parts of the evidence sought to be adduced strayed beyond that which is permissible in the context of judicial review proceedings and that the Court should exercise caution in respect to the weight sought to be placed on certain opinions expressed by the experts in their respective affidavits.
[65] Whether this additional evidence should be received turns on whether it provides substantial assistance to the Court in addressing the grounds of review upon which the applicant relies, which in the present case includes issues of illegality and procedural error.28 The Council took particular issue with the admission of Dr Michael Joy’s affidavits. He is a scientist with expertise in the bioassessment of water and habitat quality in flowing waters and opines there will be adverse effects on aquatic life in the Hakatere hāpua, even with staged reductions. The Council emphasised that Dr Joy’s opinion was not before the Commissioner, and that his evidence represents a “post facto analysis” which goes to the merits of the Commissioner’s decision and is therefore impermissible in the context of an application for judicial review.
[66] I accept, to the extent Dr Joy’s additional evidence supplements that which was before the Commissioner and bears on the substance of her decision, it is not material to which I should have regard. It is not the function of the Court on an application for review to assess the merits of the resource consent application or, indeed, the decision relating to its notification.29 However, insofar as the evidence is tendered in an
27 Roussel Uclaf Australia Pty Ltd v Pharmaceutical Management Agency Ltd [1997] 1 NZLR 650 at 658 per Richardson P.
28 CCSU v Minister of Civil Service [1985] AC 374 (HL).
29 Coro Mainstreet (Inc) v Thames-Coromandel District Council [2013] NZHC 1163, [2013] NZRMA 442 at [40] [Coro Mainstreet HC decision]; Coro Mainstreet (Inc) v Thames-Coromandel District Council [2013] NZCA 665, [2013] NZRMA 73 at [50] [Coro Mainstreet CA decision]; Sutton v Canterbury Regional Council [2015] NZHC 313, [2015] NZRMA 93 at [34]; and Colley v Auckland Council [2021] NZHC 2365 at [91].
Discharge consent application made shortly before NPSFM came into force
[197] ELI submitted the 2020 version of the NPSFM had only recently come into being and it asserted that it had not been considered as part of the notification decision process. It was argued the NPSFM 2020 introduced new and different considerations, including the creation of a hierarchy of priorities which represented a significant shift in emphasis and approach. In this regard, reference was made to the objective of this national policy statement to ensure resources were managed in a way that prioritised the health and wellbeing of water bodies and freshwater ecosystems, the health needs of people (such as drinking water), and the ability of people in communities to provide for their social, economic and cultural wellbeing, now and in the future. The policy statement also stressed as a fundamental concept Te Mana o te Wai.
[198] The NPSFM took effect on 3 September 2020, after the discharge consent application had been made but prior to the notification decision that was made later that month on 23 September. There is no express reference to the NPSFM 2020 in either the recommendation memorandum or the notification decision. However, ALI submitted the decisionmaker could be taken to have been aware of the promulgation of this recent national policy statement at the time of the notification decision, and it was a matter to which the Commissioner certainly had regard in the discharge consent decision.
[199] I do not consider the recent coming into effect of the NPSFM 2020 gave rise to a special circumstance that bears on the question of notification. I accept the Council’s submission that the focus of a notification decision is largely on the potential effects of a proposal,101 rather than any measurement of the proposal against a high
101 Resource Management Act, ss 95-95G.
end policy instrument. Viewed against the statutory framework provided by the RMA for making notification decisions, I do not consider the introduction, into what is an often evolving regulatory environment, of a new policy statement of itself gives rise to a special circumstance that can be categorised as unusual or exceptional.
Community drinking water supplies
[200] ALI submitted the discharge consent application gave rise to special circumstances because of the potential adverse effects on community drinking water supplies through contamination of groundwater, which points towards the public having a particular interest in the application about which they should have had an opportunity to comment.
[201] The Land and Water Regional Plan contemplates the issue of community drinking water supplies in the context of irrigation schemes. It identifies community drinking water protection zones that are located within the ALI irrigation scheme. There was evidence that, as a result of discussions with the Council’s groundwater scientists about how to assess effects on community drinking water supplies, ALI changed its proposed management of effects on community drinking water supplies to what is called a “risk-based approach”. It included a proposed condition that would prevent further intensification (relating to stocking rates and use of nitrogen fertiliser) within community drinking water protection zones and additional requirements to farm environment plans to maintain a record of fertiliser use and stocking rates, and an obligation to notify the Council of any event that may result in the contamination of drinking water. These particular measures would apply to four shareholders’ properties that fell partially or fully within a community drinking water protection zone.
[202] Leaving aside questions as to the adequacy of these steps, it is apparent from the recommendation memorandum that the decisionmaker was aware of the issue of community drinking water supplies and the proposals regarding how they were to be managed. It is not apparent this factor which was taken into account as part of the notification decision process was unusual, abnormal or exceptional, it being an issue that was reviewed in the s 42A report and made the subject of recommendations. It
was a factor that appears to have been considered by the Council in determining whether or not to notify. In the context of an application for a discharge consent by an irrigation scheme, in the absence of evidence of any concerns that potential effects on community drinking water were out of the ordinary, it is not apparent this feature should have been recognised as a special circumstance or as contributing to such a finding.
Alleged significant public interest
[203] ELI submitted the application for the discharge consent gave rise to a matter of significant public interest because of the scale of the activity in respect of which the consent was being sought, the size of the Discharge Area, and the already degraded state of the environment. These features, which are contended as likely to cause the application to be a matter of significant public interest, have been considered previously. However, likely public interest in a proposal can be a contributing factor when assessing the existence of special circumstances, although not a determinative one.102
[204] In Classic Developments NZ Ltd v Tauranga City Council, Venning J remarked that even major levels of public interest cannot of itself give rise to special circumstances.103 The Judge observed if that was so, every application where concern was expressed by people claiming to be affected would have to be notified.104 Whether public interest is capable of giving rise to special circumstances in a particular case is informed in part by the special circumstances that are contended for.105 The size of the irrigation scheme is relied upon as a special circumstance. However, as noted earlier, this is not an unusual feature. As already observed, it is an activity contemplated by the Land and Water Regional Plan, and in particular by r 5.62, that provides for such schemes to apply for consent approval without public or limited notification.
102 Classic Developments NZ Ltd v Tauranga City Council [2020] NZHC 945 at [53].
103 At [53].
104 At [53], citing Urban Auckland v Auckland Council, above n 95, at [137].
105 Urban Auckland v Auckland Council, above n 95, at [141].
[205] As submitted by ALI, r 5.62 and the Land and Water Regional Plan itself were approved through a public process. It was argued the potential influence of public interest as contributing to special circumstances has to be considered in the context of the statutory scheme. Insofar as public concerns may arise from the degraded state of the receiving environment, that consideration, which legitimately focuses on the potential ongoing effects of a new discharge consent, resulted in the requirement that Te Rūnanga o Ngāi Tahu be notified as an affected person. While there is undoubtedly wide public interest in the quality of freshwater, when regard is had to the circumstances and parameters of the present application, it is not apparent that public notification would have resulted in the receipt of further relevant information that was not otherwise made available to the decisionmaker.106
[206] Given the intended effect of r 5.62 of the Land and Water Regional Plan, it is not apparent on the available evidence that public interest in the application was a factor that could be described as unusual or exceptional so as to qualify as a special circumstance.
Employment of the “matrix method”
[207] ALI raised the employment by the irrigation scheme of the “Matrix method” for the purpose of aggregating nitrogen discharge allowances which, it was submitted, had not been envisaged at the time of the promulgation of the Land and Water Regional Plan. However, while the Land and Water Regional Plan refers to the use of what is described as the “overseer model” as the default method of estimating nitrogen losses from farming activities, it provides for the use of an equivalent model approved by the Council’s Chief Executive as a means of making relevant calculations, including determining a nitrogen baseline and a “nitrogen loss calculation”.
[208] There was evidence that the use of “equivalent models” have been approved in the past as alternatives to the “overseer model”. The use of the “Matrix method” is expressly noted in the recommendation memorandum and its employment by the
106 Associated Churches of Christchurch Extension and Property Trust Board v Auckland Council
[2014] NZHC 3405, [2015] NZRMA 113 (HC) at [67].
irrigation scheme cannot be considered as either unusual or exceptional in the context of the Land and Water Regional Plan.
Use of the “overseer model”
[209] Finally, ELI argued that the use of an “overseer-based”, or “overseer- equivalent” nitrogen loss model, which was included in ALI’s proposal for calculating a scheme-wide nitrogen load and for the ongoing auditing of on-farm practices in accordance with farm environment plans, gave rise to a special circumstance. Reliance was placed on a report on the overseer model by the Parliamentary Commissioner for the Environment issued in December 2018. In that report, the Parliamentary Commissioner observed that “overseer” had not been subject to “the rigorous formal scrutiny that those who are being regulated might expect” and that its assessment had revealed that a significant amount of information required to confirm its use in a regulatory setting was lacking.107
[210] However, the Parliamentary Commissioner did not recommend the prohibition of the use of overseer. He recommended a comprehensive evaluation of it be undertaken by Government. In terms of what should occur in the meantime, it was noted that the overseer model is utilised by many regional councils to determine compliance with nitrogen limits. The Parliamentary Commissioner stated:108
... [M]ost if not all the regional councils currently using Overseer to determine compliance with nitrogen limits do so because of the nature of the challenge they face. Overseer, in conjunction with catchment-scale modelling, provides a defensible quantitative basis for charting a pathway towards a lower environmental nutrient burden. And Overseer, by itself, provides a defensible basis for engaging land users on how they can, in a quantifiable way, reduce their share of that burden.
[211] The Parliamentary Commissioner acknowledged a comprehensive evaluation of overseer would take time and that, in the meantime, regional councils would have to work with the model under current arrangements.109 The concerns raised by the Parliamentary Commissioner regarding the efficacy of the overseer model apply
107 Report of the Parliamentary Commissioner for the Environment : Overseer and Regulatory Oversight : Models, Uncertainty and Clearing Up Our Waterways, December 2018, at 118.
108 At 118.
109 At 122.
widely across the regulatory framework and are not specific to this particular resource consent application or region. As is apparent from the report, the use of an overseer is widespread across the country and remains a primary assessment tool which, as acknowledged by the Parliamentary Commissioner, will have to remain in use pending any comprehensive evaluation by central government. In the circumstances, therefore, it is not a factor that is unusual or unique to this discharge consent application but a systemic issue that is unlikely to be advanced, at least in a substantive way, in the context of individual consent applications before separate consent authorities.
Conclusion
[212] From the matters canvassed in the recommendation memorandum, it is reasonable to conclude the planning officers were cognisant of the majority of matters contended to give rise to special circumstances. I accept that bare conclusionary statements by responsible officers charged with analysing and determining the issue of notification leaves such decisions vulnerable to the criticism they are unsupported by reasons. However, when regard is had to the content of the recommendation memorandum, I am satisfied the matters the decisionmaker and his advisers took into account and which informed their conclusions when applying the statutory notification framework, including the question of special circumstances, can be reasonably discerned.
[213] The material features of the discharge consent application, which is argued should have been considered as giving rise to special circumstances, were referred to in the recommendation memorandum. They can reasonably be accepted as having been taken into account when determining whether special circumstances existed to warrant any wider notification of the application. It was not necessary for all potential special circumstances to be exhaustively identified for the purpose of discounting or disqualifying them.
[214] Having reviewed the matters raised as giving rise to special circumstances, I am satisfied that neither individually, nor when taken together, do they give rise to special circumstances that warranted public or further limited notification. The Council, through its officers acting under delegated authority, was entitled to
reasonably conclude there were no special circumstances that applied that warranted either public notification or further limited notification of the application.
Overall conclusion
[215] As a result of my findings that the Commissioner made a material error of law in her approach to the application of s 107 of the RMA and failed to consider mandatory statutory considerations, the application for judicial review is granted. I find no error of law arises in respect of the notification decision and that part of the judicial review application is dismissed.
Relief
[216] The decision of the Council granting the discharge consent is set aside and ALI’s application remitted back to the Council for reconsideration.
Costs
[217] Costs are reserved. If the parties are unable to agree on costs between them, they may file memoranda sequentially.
Solicitors:
Lee Salmon Long, Auckland Wynn Williams, Christchurch Chapman Tripp, Christchurch
Appendix A
2
6
0