Environmental Law Initiative v Environment Southland
[2025] NZHC 191
•18 February 2025
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE
CIV-2023-425-21
[2025] NZHC 191
UNDER the Judicial Review Procedure Act 2016 IN THE MATTER
of an application for review
BETWEEN
ENVIRONMENTAL LAW INITIATIVE
Applicant
AND
ENVIRONMENT SOUTHLAND
Respondent
Hearing: 30 September, 1-2 October 2024 Appearances:
D A C Bullock and K L Calder for the Applicant
P A C Maw and M A Mehlhopt for the Respondent
Judgment:
18 February 2025
JUDGMENT OF HARLAND J
INTRODUCTION
[1] This application for judicial review by the Environmental Law Initiative (ELI) concerns the legality of the Southland Regional Council’s1 approach to its obligations to monitor, report and act on monitoring under the Resource Management Act 1991 (RMA).
[2] ELI's concerns arise in the context of the need to preserve and protect Southland’s wetlands. Under s 6(a) of the RMA, the preservation of wetlands and the protection of them from inappropriate subdivision, use and development is a matter of
1 The Southland Regional Council trades as “Environment Southland” but will be referred to here as “the Council”.
ENVIRONMENTAL LAW INITIATIVE v ENVIRONMENT SOUTHLAND [2025] NZHC 191 [18 February 2025]
national importance. It is not contested that Southland's wetlands have been significantly degraded in recent decades. Several of ELI's concerns also involve more general issues about the legality of the approach of the Council under the RMA.
[3]The application is opposed by the Council.
THE PLEADINGS—AN OVERVIEW
[4] ELI is an incorporated charitable trust board and a registered charity. Its main objective is to support the protection of natural resources and the environment in Aotearoa New Zealand. Its specific charitable purposes include the preservation, conservation, protection and enhancement of natural and cultural resources, to prevent their harm, misuse, depletion, unsustainable use and destruction.
[5] One way ELI achieves these objectives is by researching technical, legal and scientific environmental issues. One issue ELI is concerned about is the rapid and ongoing loss of wetlands, the ineffectiveness of local authorities to prevent wetland loss and the wider consequences for the environment arising from that loss.
[6] The Council has various functions, powers and duties in relation to the environment. Specifically, under s 30(1) of the RMA and most relevant to this case, its functions to:
(a) control the use of land for the purpose of maintaining and enhancing the quality of water in water bodies and ecosystems in water bodies, as well as maintaining the quantity of water in water bodies;2
(b) establish rules in its regional plan to allocate the taking or use of water (other than coastal water);3 and
(c) establish, implement and review objectives, policies and methods for maintaining indigenous biological diversity.4
2 Resource Management Act 1991 [RMA], s 30(1)(c)(ii), (iii), (iii)(a).
3 Section 30(1)(fa)(i).
4 Section 30(1)(ga).
[7] The first cause of action alleges that the Council has failed to comply with its statutory duties under the RMA, specifically s 35(2)(b) (to monitor the effectiveness and efficiency of the policies, rules or other methods in its plan), and s 35(2A) (to publish a review of the results of its monitoring at least once every five years).
[8] The Council denies that it has failed to comply with its statutory duties. It asserts that its s 32 report, which was published when its new proposed water and land plan was notified in 2016, can be a substitute for the reporting required by s 35(2A). But, as well, the Council submits its s 35(2)(b) duties are not engaged by a plan unless and until that plan is entirely operative under cl 20 sch 1 of the RMA. The Council contends it does not have to monitor provisions which are going (or are likely) to be overtaken by the provisions of a partially operative proposed plan. I discuss the distinction between the operative and proposed plans below from [21].
[9] The second cause of action alleges that the Council has failed to comply with its duties under s 35(2)(a) of the RMA, to monitor the state of the environment regarding wetlands and wetland drainage in the Southland region, to the extent appropriate to enable it to effectively carry out its functions under the RMA. ELI also alleges the Council has failed to take appropriate action or to consider what action might be taken, per its obligation under s 35(2), because it has failed to monitor.
[10] The Council submits that it has complied with its duties under s 35(2)(a) in various ways through its wetlands pilot project prior to 2018.
[11] As to whether it has taken appropriate action, where that has been shown to be necessary, the Council submits it has done this by notifying the proposed land and water plan, initiating a science programme in response to the Ewans reports (scientific advice consisting of three reports received by the Council) employing a dedicated wetlands scientist and undertaking various compliance functions.
[12] ELI seeks, by way of relief, declarations that the Council has failed to comply with its statutory duties in the manner alleged and orders, in the nature of mandamus, that the Council now comply.
Statutory pathway and premise of proceedings
[13] ELI’s pleadings note the proceedings were brought under the Judicial Review Procedure Act 2016 and pt 30 of the High Court Rules 2016.
[14]The Judicial Review Procedure Act outlines:
11 Proceedings for mandamus, prohibition, or certiorari must be treated as application for review
(1) This section applies if, in relation to the exercise, refusal to exercise, or proposed or purported exercise of a statutory power, proceedings are commenced for a writ or an order of or in the nature of—
(a)mandamus; or
(b)prohibition; or
(c)certiorari.
(2) If this section applies, the proceedings must be treated and disposed of as if they were an application for judicial review.
12 Proceedings for declaration or injunction may be treated as application for review
(1) This section applies if—
(a)proceedings are commenced for a declaration or an injunction, or both, with or without a claim for other relief; and
(b)the exercise, refusal to exercise, or proposed or purported exercise of a statutory power is an issue in the proceedings.
(2) If this section applies, the court on the application of any party may, if it considers it appropriate, direct that the proceedings be treated and disposed of, so far as they relate to the issue in subsection (1)(b), as if they were an application for judicial review.
[15]There is very little case law, or submission made here, under these provisions.
[16] I observe the well-known principle of judicial review that I am not assessing the merits of the Council’s decisions (or rather lack of) unless the decision was one that no reasonable Council could have made.5 I refer to the Court of Appeal’s decision
5 Marche Ltd v Auckland Council [2016] NZHC 145, [2016] NZRMA 139 at [4].
in Wellington City Council v Woolworths New Zealand Ltd discussing judicial review in the resource management context:6
The legal principles are well settled and were discussed in Mackenzie District Council v Electricorp [1992] 3 NZLR 41 at pp 43–44 and p 47. In summary, judicial review of the exercise of local authority power, in essence, is a question of statutory interpretation. The local authority must Act within the powers conferred on it by Parliament…. Rating authorities must observe the purposes and criteria specified in the legislation. So they must call their attention to matters they are bound by the statute to consider and they must exclude considerations which on the same test are extraneous. They Act outside the scope of the power if their decision is made for a purpose not contemplated by the legislation. And discretion is not absolute or unfettered. It is to be exercised to promote the policy and objectives of the statute. Even though the decision maker has seemingly considered all relevant factors and closed its mind to the irrelevant, if the outcome of the exercise of discretion is irrational or such that no reasonable body of persons could have arrived at the decision, the only proper inference is that the power itself has been misused.
(emphasis added)
[17] I also note the principles that apply to the exercise of discretionary powers in judicial review. These principles require a discretion to be exercised in accordance with the policy and objects of the Act in question and do not enable a decisionmaker to derogate from or ignore a statutory duty.7
[18]In Unison Networks Ltd v Commerce Commission, the Supreme Court found:8
Public bodies must exercise their statutory powers in accordance with the statutes which confer them. If they make decisions that are outside the limits of their powers they abuse them. The courts control any misuse of public power through judicial review.
[19] These proceedings do not fit well into any “box”. Put simply, ELI submits the Council failed/omitted to perform its statutory duties under s 35 of the RMA, a very different proceeding from the usual resource management judicial review. I refer to Professor Joseph’s reflection on the instinctual nature of judicial review, with the Court required to consider whether something has “gone wrong” that warrants judicial
6 Wellington City Council v Woolworths New Zealand Ltd [1996] 2 NZLR 537 (CA) at 545.
7 Unison Networks Ltd v Commerce Commission [2007] NZSC 74, [2008] 1 NZLR 42 at [51].
8 At [51].
intervention and correction.9 If it has, I must identify the error and explain and justify the Court’s subsequent action.
BACKGROUND
The plan change process—an overview
[20] The application for judicial review is brought in the context of changes to the Regional Water Plan for Southland (the operative plan) and the proposed Southland Water and Land Plan (the proposed plan).
[21] One of the key issues in this proceeding is when the s 35 duties arise. In part, the answer to this question requires an understanding of when various provisions in a proposed plan and the plan itself become “operative”.
[22] A regional plan must state the objectives for the region, the policies to implement the objectives and the rules (if any) to implement the policies.10 The distinction between objectives, policies and rules is important for the purposes of understanding the concept of “operative” in the resource management context.
[23] A proposed plan must be prepared in accordance with sch 1 of the RMA.11 In this case, the Council’s proposed plan was notified on 3 June 2016, with the required s 32 evaluation report accompanying it.12
[24] Having notified its proposed plan, members of the public had the opportunity to make submissions on the plan.13 The Council convenes a panel to hear the submissions. Council officers prepare a s 42A report which summarises the submissions received and makes recommendations to the Hearing Panel.
9 Philip A Joseph Joseph on Constitutional and Administrative Law (5th ed, Thomson Reuters, Wellington, 2023) at 921; R v Panel on take-overs and Mergers, ex parte Guniness plc [1989] 1 All ER 509 at 527; Pora v Attorney-General [2017] NZHC 2081, [2017] 3 NZLR 683 at [138].
10 RMA, s 67(1).
11 Section 65(2).
12 Under sch 1, cl 5(1)(a), a council is required to have particular regard to a s 32 evaluation report when deciding whether to proceed with a plan.
13 Schedule 1, cl 6.
[25] A hearing is held, with recommendations made to the Council as to the outcome of the new proposed provisions.14 In this process, the Council then decides whether to approve the plan.15 This is the “plan-change process”.
[26] “Operative” in the resource management field refers to when the provisions in a plan have legal effect; that is, when they come into force. Sections 86A-G of the RMA specify when rules in proposed plans have legal effect and when they become operative.16 Rules may be operative or have legal effect at various times throughout the plan change process. All the rules in the proposed plan here had immediate legal effect from the date of notification, meaning they must be complied with and considered alongside the operative plan.17
[27] Once a substantial portion of appeals have been resolved, the Council can approve and make part of a plan operative.18 That was the approach taken here, with all the objectives of the proposed plan made operative in March 2021 and the majority of the proposed plan made operative in May 2024.
[28] Regarding the proposed plan, when ELI filed its statement of claim, none of the policies or rules or rules in the proposed plan had been made operative under cl 20 of sch 1 of the RMA. Only objectives 1–19 have been made operative.19 Now, however, the proposed plan has been made operative in part, excluding policy 42 and rules 24, 54 and 78, as well as appendix L.5, as these provisions are still subject to appeals.
[29] The operative plan was made fully operative in April 2010. The delay in the proposed plan’s execution is largely a result of the 25 appeals filed on it. As well, the Environment Court has issued nine interim decisions in respect of the proposed plan, with hearings and mediations ongoing for the past five and a half years.
14 Clause 8B(a).
15 Clause 10(1).
16 Section 86F.
17 Southland Water and Land Plan: Part A, at 11.
18 RMA, sch 1, cl 17(2).
19 Bar objective 16.
Relevant rules
[30] The amended statement of claim refers to the rules which regulate the drainage of wetlands in Southland, in respect of which ELI contends the duties under ss 35(2)(b) and (2A) apply. These rules are relevant to the first cause of action and give further necessary background to the proceeding. They are:
(a) Rule 20(c) of the operative plan, which prohibits the diversion of water from any naturally occurring wetland or a regionally significant wetland without a resource consent, noting that r 20(b) permits the diversion of water for the purpose of land drainage but is subject to r 20(c).
(b) Rule 51(b)(iii) of the proposed plan, which permits the diversion of water for the purpose of land drainage, provided this is not from any natural wetland or a regionally significant wetland, noting that r 51(d) prohibits the diversion of water from any natural wetland or a regionally significant wetland without a resource consent.
(c) Rule 74 in the proposed plan, which manages the use of land within a wetland.
Wetlands
[31] ELI's research and subsequent enquiries with the Council about wetland loss in Southland led to it issuing these proceedings.
[32] A wetland is defined under s 2 of the RMA to include “permanently or intermittently wet areas, shallow water, and land water margins that support a natural ecosystem of plants and animals that are adapted to wet conditions”.
[33] Wetlands can act as a filter, trap sediment, improve water quality and reduce the impact of floods. They are also key habitats for many native birds, fish and plants, and the survival of many threatened species is dependent on wetland health. Indeed, wetlands can support far more species than a forest of similar size. Māori regard wetlands as taonga, possessing historical, cultural and spiritual significance. They are crucial for mahinga kai purposes.
[34] The importance of wetlands is affirmed under s 6(a) of the RMA to be a matter of national importance and, as well, New Zealand is a contracting party to the 1971 RAMSAR Convention on wetlands, which is directed both to the specific protection of internationally significant wetlands and wetlands generally.
[35] The unchallenged evidence in this case refers to research which reveals that as much as 90 per cent of the wetlands in Aotearoa New Zealand have been lost since 1850.20 A significant proportion of the nation’s remaining wetlands is located in Southland but, there, they too continue to face significant and rapid decline.
[36] The degradation of wetlands is directly related to the land use and drainage rules in regional plans. In 2021, a National Wetlands Trust report, commissioned by ELI and provided to the Council and other councils, identified an “extraordinarily low” level of compliance with the wetland drainage rules in regional plans. As a result of this, ELI sought information under the Local Government Official Information and Meetings Act 1987 (LGOIMA) from selected regional councils, including Southland, about their monitoring of wetland environments, the effectiveness of the rules in their plans regarding wetland loss and drainage, and their efforts to ensure compliance with their plans.
The LGOIMA requests
[37] ELI sent a series of LGOIMA requests to the Council between March 2021 and May 2022.
2021 requests
[38] There were three series of LGOIMA requests and responses. I have included the dates so they can be considered in the context of the proposed plan process outlined in the previous section of this judgment.
20 Ausseil et al Wetland ecosystems of national importance for biodiversity: criteria, methods and candidate list of nationally important wetlands (Landcare Research Contract Report, LC0708/158, 2008).
[39] The first request, on 18 March 2021, sought information about what the Council was doing about wetlands. The Council’s reply on 22 July 2021 outlined that it had commissioned Mr Ewans, a wetland ecologist, to undertake a mapping exercise to produce an inventory of wetland areas lost between 2015 and 2018.
[40]Three requests, sent on 10 September 2021, queried:
(a) what had the Council done to monitor wetlands and drainage activities near wetlands;
(b) the effectiveness of the rules in its operative and proposed plans dealing with these matters;
(c) the Council’s use of the Ewans reports in “its processes”; and
(d) how the Council detected “wetland incidents” and how it had responded to them.
[41]In October 2021, the Council advised:
(a) since 2012, its monitoring of wetlands comprised the reports written by Mr Ewans in 2015, 2016 and 2018;
(b) in terms of steps taken to develop and undertake a wetland monitoring project under the National Policy Statement Freshwater Management 2020 (NPS-FM 2020), the programme was intended to be designed in line with the NPS-FM 2020 and “all relevant Land and Water Plans”, with the Council specifying the next Water and Land Plan was “due to be notified December 2023”; and
(c) since the last of Mr Ewans’ reports in 2018, no further mapping of wetlands had been undertaken.
2022 requests
[42] On 2 February 2022, ELI sent a letter to the Council summarising what it understood the Council’s processes to be, based on the information it had received. ELI asked the Council to confirm this summary.
[43]On 17 March 2022, the Council confirmed that:
(a) none of the specific instances of wetland loss identified by Mr Ewans had been formally passed on to the Council’s compliance team to investigate; and
(b) rather than actively monitoring wetland loss and drainage for compliance, the Council had relied on community reports.
[44] In a further letter dated 4 April 2022, ELI asked the Council to clarify whether it had produced a s 35(2A) report in relation to the monitoring of wetlands.
[45] The Council responded on 19 May 2022, stating that a s 35 report had been prepared in 2012 based on a gap analysis undertaken by staff, noting “this s 35 report acknowledges that there is additional work required to provide for the protection of wetlands in Southland”. That gap analysis was the last instance of s 35(2A) compliance.
[46] The Council said it had conducted a full efficiency and effectiveness review in 2019 but this was in relation to the regional coastal plan. A lengthy report had been prepared which specifically noted that it had been prepared to fulfil the Council’s obligations under s 35(2A) of the RMA. Its executive summary records the following:
Environment Southland is required by s 35(2A) of the Resource Management Act 1991 (RMA) to report on the effectiveness and efficiency of policies, rules and other methods in its plans. Such assessment is not only required by legislation but is good planning practice as part of the ongoing implementation and review of plans.
Evaluating the effectiveness of … (the plan) was undertaken by first examining the outputs of the plan (consents issued, consent monitoring, unauthorised incidents and non-regulatory methods undertaken).
Other LGOIMA requests
[47] ELI then asked the Council for details about any wetland incidents and, if there were any, whether the Council could identify what enforcement action it had taken.
[48] The Council responded in a letter dated 17 December 2021, attaching a document that summarised the wetland incidents that had occurred since 2016. ELI reviewed the listed incidents to assess those likely to have included drainage from or around a wetland. Seventeen incidents were identified. For three of the recorded incidents, either one or both rules (rr 20 and/or 51) had been considered but enforcement action was only taken in one case.
ELI
[49]From the Council's LGOIMA responses, ELI concluded:
(a) the recommendation in the Ewans report, that the Council carry out an analysis of plan effectiveness to identify the key areas where the implementation of the regulatory framework had been least effective, had not been taken up;
(b) no s 35(2A) report had been published in relation to wetlands, and any consideration was some time ago;
(c) the Council’s understanding about the effectiveness of the operative and proposed plan drainage rules was informed by the s 32 report for the proposed plan; and
(d) the Council had not reviewed the inventory of wetland losses in the Ewans report or its own consent and incident records to help assess the effectiveness of the plan and its implementation for wetlands.
The Council
[50] The Council highlighted the importance of context to its LGOIMA responses. It did not accept it had failed to take sufficient action in respect of wetlands in Southland. The Council recognised the risks posed to Southland wetlands and
submitted it was acting appropriately to respond to this complex and technical issue, within its limited means. It was submitted the Council has undertaken a range of measures to address wetland loss, the most significant of which has been notifying the proposed plan.
[51] The Council also referred to other non-regulatory measures it has taken to improve the environmental outcomes for wetlands. These include:
(a) Establishing the People, Water and Land programme (developed alongside Ngāi Tahu ki Murihiku), a programme involving both science and community input in respect of future freshwater objectives, intended to make Southland more resilient and sustainable and to meet the requirements of the NPS-FM.
(b) Establishing the Regional Forum in April 2019. While predominantly dealing with the changes needed to achieve what were then draft freshwater objectives, specific modelling in relation to wetlands was undertaken. The importance placed on wetlands in the final report produced in 2022 was highlighted.21 Ms Wilson, the Chief Scientist employed by the Council, deposed that this, in part, addressed recommendation 10 in the 2018 Ewans report.
(c) Implementing the Essential Freshwater package, which included mapping of wetland extent (consistent with the draft freshwater objectives). The Essential Freshwater package was introduced by the Government in 2020 and included the NPS-FM 2020 as well as a suite of regulations, all of which came into force on 3 September 2020. It was noted that the Essential Freshwater package introduced new science requirements for wetlands and timeframes for implementation, such as requiring wetlands to be mapped to 0.05 hectares (noting that the Ewans reports had used a mapping scale of 0.5 hectares).
21 Regional Forum Achieving the Community’s Aspirations for Freshwater (Regional Forum, June 2022).
(d) Developing a science strategy, of which 23 long-term state of the environment monitoring programmes remain live.
(e) Developing a draft wetlands strategy, which has been used in the development of the Council’s long-term plan, which sets out the funding allocated for various projects.
(f) Employing a dedicated wetlands scientist in 2022 to assist across several business units of Council, e.g. compliance, consenting, policy and strategy, to support the Council’s different functions in respect of wetlands. The scientist has reviewed existing wetland information, worked on a report to establish the methodology that will be used for mapping wetland extent in accordance with the requirements under the NPS-FM and has assessed the current extent of wetlands in the Southland region in accordance with the new requirements of the NPS-FM. Ms Wilson deposed that work by the wetlands scientist addresses, at least in part, recommendations 1, 5, 6, 9 and 10 in the final Ewans report.
[52] The Council accepted it has not produced a specific report under s 35(2A) in relation to wetlands since 2012, but said it does not have to yet and, in any event, its s 32 report produced for the proposed plan fulfilled the statutory objective.
[53] The Council also submitted, regarding its s 35(2)(b) duties, there has been a “proactive review of provisions in advance of policy changes” and an “ongoing and reactive process through an issues register, allowing urgent fixes and a mechanism for all plan users to be able to raise concerns…”. It referred to the Wetland Inventory and Monitoring project, which has some genesis in the Ewans reports.
[54] The Council noted s 35 provides no direction as to how it is to comply with these duties. It submits it is implied that such wide terms are appropriate on account of the Council’s broad executive discretion.
[55] One of the Council’s primary arguments, which will be addressed in more detail below but signposted here, is that its s 35 obligations have either been met by its preparation of the proposed plan or are no longer necessary regarding the (soon to
be inoperative) operative plan. To this point, the Council noted the fact the proposed plan has been delayed by appeals is a factor beyond its control.
[56] Regarding the second cause of action, the Council largely repeated its arguments from the first cause of action as to lack of utility, the s 32 report providing sufficient coverage and a wide discretion as to how it performs its statutory duties. The Council refers to the costs associated with monitoring (75% of the science budget in 2022/2024) and that programmes are designed to be “representative”. It referred to the steps taken, above at [51], as evidence of its discharge of statutory duties.
[57] Ms Wilson deposed the Council is now doing far more than it used to and drew specific attention to the limited resources the Council has to perform its statutory duties.
[58] The Council submitted it has a wide discretion to “take appropriate action” as it considers necessary, considering its notification of the proposed plan “the most active step of all”. Finally, in response to ELI’s critique about the Council’s lack of enforcement action, the Council referred to the strict limitation periods to prosecute offences under the RMA, amended in 2020 to 12 months,22 when the limitation period had previously been six months after the Council became aware of the likely offending.23
THE DUTIES IN THIS CASE
Section 35 of the RMA
[59] Section 35 of the RMA is the focal point of this decision, with both causes of action alleging breach of it. Section 35 appears in pt 4 of the RMA, which deals with the functions, powers and duties of central and local government in relation to the Act. Part 4, as it relates to the functions, powers and duties of local authorities, and relevant to this case, sets out the functions of regional councils under the RMA,24 the
22 RMA, s 338(4)
23 Resource Management Amendment Act 2020, s 92.
24 RMA, s 30.
requirements for preparing and publishing evaluation reports25 and a local authority’s duty to gather information, monitor and keep records under s 35.26
The relevant parts of s 35, in issue in this proceeding, are:
Duty to gather information, monitor, and keep records
…
(2)Every local authority shall monitor—
(a) the state of the whole or any part of the environment of its region or district—
(i)to the extent that is appropriate to enable the local authority to effectively carry out its functions under this Act; and
…
(b) the efficiency and effectiveness of policies, rules, or other methods in … its plan; and
and take appropriate action (having regard to the methods available to it under this Act) where this is shown to be necessary.
…
(2A) Every local authority must, at intervals of not more than 5 years, compile and make available to the public a review of the results of its monitoring under subsection (2)(b).
…
[61] The duties under s 35 are broad and general and, as noted by the Council, do not prescribe how compliance with them is to be achieved.
The nature of the Council's discretion under s 35
[62] Mr Maw submitted that compliance with the duties under s 35 is a matter for the Council to determine in its discretion. He claimed the decision is analogous to another broadly framed statutory provision in the RMA, s 84. Section 84 appears in Pt 5, dealing with standards, policy statements and plans. It requires councils to observe and enforce their planning documents but is not expressed as a duty.27
25 Sections 32, 32AA and 32A.
26 Section 2, a regional council is a local authority for the purposes of the RMA.
27 RMA, s 84(1).
[63] Mr Maw referred to this Court observing that it would be extremely reluctant to intervene in a discretionary decision made by a council as to how to carry out its function under s 84.28 In my view, Dunningham J’s observation in Royal Forest and Bird, in relation to s 84 is equally applicable to my consideration of s 35.
SECOND CAUSE OF ACTION: FAILURE TO MONITOR AND TAKE APPROPRIATE ACTION
[64] I have decided to first assess the second cause of action as the second cause of action requires a more intensive assessment of the just outlined background.
[65] As outlined above, this cause of action refers to the Council’s duties under s 35(2)(a) of the RMA, with specific reference to wetlands. The issues for my determination are whether:
(a) the Council has complied with its duty under s 35(2)(a) to monitor the state of the whole or any part of the environment of its region; and, if it has,
(b) whether that monitoring was sufficient to enable it to effectively carry out its functions under the RMA, taking appropriate action where that is shown to be necessary.
The evidence
The Ewans reports
[66] The wetland monitoring project and wetland inventory prepared by Mr Ewans was undertaken over a four-year period. The purpose of the project was to provide base data about the state of wetlands on non-public conservation land in Southland. Over this period, Mr Ewans produced three reports, culminating in a summary report in 2018. Each year, from 2014 onwards, Mr Ewans was engaged for six weeks to monitor changes to the wetlands he mapped.
28 Royal Forest and Bird Protection Society of New Zealand Inc v Canterbury Regional Council [2019] NZHC 2223, (2019) 21 ELRNZ 234 (HC) at [36]. Mr Maw also referred to Inta v Avery Brothers Ltd [2018] NZEncC 36; Re Ngāti Tama Ki Te Waipounamu Trust [2023] NZEnvC 157 at [637] and [796], but they do not express the relevant principle any more clearly than Dunningham J did.
[67] The project was a desktop exercise using existing spatial GIS layers and other information to map previously unmapped wetlands and to baseline previously mapped wetlands to 2007 aerial photography. Together, this is referred to as the wetland inventory. He was asked to analyse wetland extent, comparing aerial photographs taken in 2007 and 2014–2015. This was referred to as monitoring. Mr Ewans was asked to recommend what further work should be done to improve and use the wetland inventory so that the extent of each wetland could be monitored effectively and identified wetlands in the Southland region could thereby be protected. He was requested to provide an opinion about the status that should attach to these wetlands in light of recent planning changes, for example, in relation to the proposed plan and the Southland Regional Policy Statement 2017.
[68] All wetlands in Southland comprising an area of at least 0.5 hectares were included in the inventory. Wetland polygons were ascribed to attribute data such as wetland classifications, broad condition scores, links to other relevant GIS layers, and their likelihood of meeting significance criteria. One thousand six hundred and six wetland polygons were digitised by Mr Ewans, covering 20,672 hectares across Southland.
[69]Mr Ewans' research established that:
(a) between 2007 and 2015, 1,362 hectares, representing approximately seven per cent of the area of wetland polygons mapped in 2007, had been lost;
(b) wetland loss was heavily concentrated in the lowland areas of Southland with over 1,200 hectares lost between 2007 and 2015, representing 11 per cent of the 2007 lowland wetland area;
(c) over 60 per cent of the wetland extent lost was from wetlands likely to meet the significance criteria over part or all of the wetland polygon; and
(d) levels of formal protection of wetlands on non-public conservation land remain low.
[70] Mr Ewans noted that his findings were consistent with a recent study quantifying the extent of wetland losses nationally. He concluded that virtually all of
the remaining wetlands he had surveyed, supporting indigenous vegetation or habitats of indigenous fauna, were likely to be considered significant under s 6(c) of the RMA. He concluded any further wetland loss was likely contrary to the Council’s regional water quality objectives.
[71] In relation to the request that he address what further work, improvement and use could be made of the wetland inventory, he recommended the Council:
(a) rationalise the disparate information available and prepare a comprehensive wetland database;
(b) identify a regional subset of wetlands that meet RMA significance criteria;
(c) develop criteria to define regionally significant wetlands and implement a plan variation to reflect a more robust list of wetlands;
(d) prioritise wetlands in the High Value Area survey project, a Council initiative established in 2000 to provide free terrestrial ecological advice to landowners through field surveys which help landowners with support to protect and/or restore native biodiversity and ecosystems and to create targeted management systems;
(e) repeat the monitoring of the wetlands reported on when new aerial photography becomes available at a maximum of five yearly intervals;
(f) instigate monitoring of wetland condition at a range of representative sites;
(g) carry out an analysis of plan effectiveness to identify the key areas where the implementation of the regulatory framework has been least effective at reducing wetland loss;
(h) promote increased awareness in the rural community and district/city councils about the status of wetlands, the likelihood that most are significant under the RMA, and the need for formal ecological field surveys to be undertaken when planning for development;
(i) undertake a technical review of wetland hydrology to develop better guidelines for artificial drainage to avoid water diversion from wetlands,
i.e. establishing what the minimum distance between drainage and any wetland should be; and
(j) investigate the feasibility of a catchment scale study of wetland distribution and extent to identify gaps in landscape function and water quality.
[72] Mr Ewans said he made the recommendations listed above “to provide for more robust management and ongoing monitoring of wetlands in the Southland region”.
[73] The Ewans report and the recommendations referred to above were provided in the report dated 15 September 2018, by which time the proposed plan had already been notified.
The root causes report
[74] In October 2020, the National Wetland Trust, funded by ELI, produced a report series addressing the root causes of wetland loss, with Karen Denyer, a deponent in this proceeding, named as a co-author.29 This report series was not disputed. This research documented wetland loss on a regional basis. The strength of plan policies and rules were assessed, council consent processes were examined and council ecologists interviewed. Hard copies of this report series were sent to all regional councils and all councils were invited to a zoom presentation outlining the report’s findings.
[75] The research underpinning the root causes report ascertained that, between 1996 and 2018, almost 5,400 hectares of freshwater wetland was lost from New Zealand with over 90 per cent of drained freshwater wetlands now comprising high- producing grassland, indicative of dairy farming.30
29 Karen Denyer and Monica Peters The root causes of wetland Loss in New Zealand: an analysis of public policies and processes (National Wetland Trust, October 2020).
30 At 5.
[76] The greatest area of loss was in Southland from 2008 to 2012, which lost around 185 hectares of wetland per year for that period.31 The report identified that half of the freshwater wetlands lost in New Zealand were in Southland, largely from lowlands near, or adjacent to, the Awarua-Waituna wetland, an internationally recognised and significant wetland under the RAMSAR Convention.
[77] Based on a comparison between Google Earth Time Series and old aerial photographs, the report writers identified that 2,709 hectares of freshwater wetland had been lost in Southland since 1996, being 6.6 per cent of the freshwater wetlands that had been identified in 1996. The report writers noted:32
In many cases drains were dug first and the vegetation later cleared – likely in breach of the 2010 Regional Plan and possibly the relevant preceding Catchment Plans. However some appear to have been cleared of vegetation first, and then drained, possibly exploiting an existing loophole that allowed for vegetation clearance as a permitted activity under the relevant district plan, thus rendering the site no longer a natural wetland and exempt from regional drainage rules…Ewans (2016) in reporting on wetland loss in Southland from 2007 to 2014 describes another approach that has been used to skirt wetland clearance rules:
An example of a common clearance strategy for bogs in Southland is…Bogs are ring drained which allows bog margins to dry out and gorse to invade. Weed control obligations are ignored and gorse eventually dominates areas previously occupied by indigenous wetland vegetation. Gorse is then cleared (thus avoiding indigenous vegetation clearance rules) and a new ring drain dug to further dry out the bog, and so on until the bog is destroyed.
[78] Ms Denyer and her colleagues, with reference to these reports, concluded that a lack of monitoring and enforcement had proven to be the weak link in the regulatory chain of wetland protection.
The Council’s response
[79] Ms Wilson, in her evidence for the Council, outlined the various reports prepared for the Council that include information about the extent of Southland wetlands and their condition.
31 At 5.
32 Karen Denyer and Monica Peters The root causes of wetland loss in New Zealand: 1. Statistics and backstories (National Wetland Trust, October 2020) at 13.
[80] Ms Wilson noted wetland systems were identified using aerial photographs taken during 2007 and 2008, and site visits were undertaken to validate data in some instances. This study provided a baseline for future wetland mapping work, particularly that done by Mr Ewans.
[81] She then referred to the Council’s 2010 Freshwater State of the Environment report noting that, at this time, there was no regular monitoring of the extent or ecological health of wetlands in Southland. She highlighted that a number of scientific investigations had been undertaken on specific wetlands which were referred to in the Southland Water 2010 report.
[82] Ms Wilson next referred to the Council’s High Value Area Programme, discussed above at [71](d).
[83] As well as commissioning the Ewans reports, Ms Wilson explained that the Council established the Southland Characterisation Science Programme. This was a comprehensive science programme established in partnership with certain research agencies and stakeholders to provide “information to inform the Council’s response to the NPS-FM which came into force in August 2014”. It comprised four workstreams, assessing land use inputs, a workstream refined to understand how water and contaminants move above and below grounds, how the ecosystem responded to drivers in estuaries, lakes and rivers, and one dealing with physiographics designed to understand why water quality varies across Southland.
[84] The programme produced 30 reports. It concluded with a science symposium in September 2018, where some of the key findings were presented. Some of the outputs from this programme were used to inform the Council's proposed plan, its People, Water and Land Programme, consenting processes and the education and advice programmes.
[85] The People, Water and Land Programme continued in force after the Ewans report and the notification of the proposed plan. It comprised three workstreams, which seem to amount to consultation, so that the Council could better understand the community’s aspirations on a variety of topics including, and possibly relevant here,
issues to do with the freshwater and science workstreams. Any feedback could then be used by the Council when it was considering what land use changes might be carried through into the proposed plan change process. By 2017, this was the Council’s “flagship” programme.
[86] The Council submitted the Ewans reports informed the development of the wetland provisions in the proposed plan. They are referred to in the s 42A reporting officer’s report, which was part of the material presented to the Hearings Panel before it made its recommendations on proposed plan provisions. Ms Hicks, the Council's General Manager of Policy and Government Reform, disagreed with the contention that the Council had “failed to use the Ewans reports to inform any analysis of plan effectiveness” noting they informed the development of wetland provisions in the proposed plan.
[87] There are a range of measures, noted above at [51], that the Council referred to as examples of compliance with s 35.
[88] When considered in the round, the Council submits that these actions also amount to monitoring the efficiency and effectiveness of the operative plan provisions under s 35(2)(b) (noting they have also been tendered as evidence of compliance with s 35(2)(a)). Mr Maw submitted that these actions (both from a community engagement and scientific perspective) allowed the Council to have a clear overall picture of the factors potentially affecting wetlands in the region. Given these matters and the focus on the improvement of water quality, Mr Maw submitted this demonstrates that the Council considered its existing operative plan provisions were not efficient and effective.
[89] I was also asked to consider these matters in light of Ms Wilson’s evidence that the Council is responsible for the second largest geographical region in the country with the longest length of coastline, but with the second smallest rating base. Ms Wilson said:
The region faces numerous environmental challenges and there has been a state of constant change to the NPS-FM and other regulations to which it must respond. Consequently, Environment Southland has had to prioritise to do the best it can with the limited resources it has available. The Council is doing a
lot more on wetlands protection and restoration than it has in the past, aided by the hiring of a dedicated wetlands resource.
[90] With these matters in mind, Mr Maw submitted that the level of monitoring that the Council conducted in relation to the operative plan, post the Ewans report but before the proposed plan was notified, was appropriate and in line with its broad discretion to decide how it monitors in accordance with s 35.
Issues
[91] ELI pleads that, at least since 2018 when the final Ewans report and recommendations became available, the Council has failed to meet its duties under s 35(2)(a) to:
(a) monitor the state of the environment as regards to wetlands and wetland drainage in the Southland region and to do so to the extent appropriate to enable it to effectively carry out its functions under the RMA; and
(b) with (a) in mind, to take appropriate action (having regard to the methods available to it under the RMA) or to consider what action might be taken, connected to wetland protection and wetland drainage in the Southland region.
[92] It accordingly seeks declarations that the Council has failed to comply with these obligations and an order that the Council comply with them under s 35(2) as regards wetlands and wetland drainage.
[93] In its amended statement of defence, the Council admits that, since 2018, it has not conducted a comprehensive programme of monitoring wetlands and wetland drainage, but it pleads that it hired a new environmental scientist for wetlands in November 2022 and has established a wetland mapping project. It denies failing to take appropriate action generally and in relation to the Ewans reports.
Post-2018 actions — do they amount to monitoring for the purposes of s 35(2)(a)?
[94] I am satisfied that, prior to 2018, the Council did undertake monitoring in accordance with s 35(2)(a) via its Wetlands Pilot Project and the Ewans reports, but
whether it took appropriate action in terms of s 35(2)(a) depends on my assessment of what the Council did post-2018.
[95] I agree with ELI that, while the steps taken by the Council are laudable, they do not amount to state of the environment monitoring or action arising from it. While funding restraints are acknowledged, post-2018 the mapping work done by Mr Ewans provided a baseline for further monitoring which could have been advanced but was not. Rather, it seems that the Council has been diverted by the promulgation of the proposed plan and the Essential Freshwater package introduced by the Government in 2020. While this is, to a degree, understandable, the Council cannot derogate from the duties imposed on it by Parliament in s 35(2)(a).
[96] Accepting that it is up to the Council how it monitors wetlands, I am not persuaded that what it has done amounts in fact to monitoring. This is particularly so given the base information, such as mapping, provided in the Ewans report, gave a baseline for ongoing monitoring. As is evident from the work done by Mr Ewans, the ongoing monitoring of wetlands is best done by obtaining actual information about their ongoing integrity. This is because the integrity of wetlands is closely linked to adjoining drainage activities. It is hard to see how the ongoing health of the wetlands mapped by Mr Ewans could continue to be monitored, in light of his recommendations, without further mapping being undertaken.
[97] It does not follow that all of the wetlands mapped would need to be further mapped at the same time. An incremental approach could well be justified given resourcing constraints. There could, for example, be an exercise undertaken to prioritise certain of the wetlands identified over others and to undertake mapping on that basis. But, bearing in mind the national importance of wetlands outlined in s 6(a) of the RMA and the obligation to monitor expressed as a duty under s 35, in my view, monitoring the Ewans baseline mapping data could not be put to one side while strategic, policy and planning documents were advanced.
[98] On this point, while I accept that the ongoing mapping of wetlands for example could comprise part of the Council’s monitoring function because it would provide further updated data about the extent and health of wetlands, in my view, mapping is
not necessarily equivalent to monitoring. There are other ways monitoring could occur, such as monitoring by conducting on the ground inspections. No doubt there are also other ways to monitor, but the methods chosen by the Council must be necessary for it to effectively carry out its functions under the RMA as s 35(1)–(2) enjoins.
[99] Although the RMA does not define monitoring and accepting that for different parts of the environment what is required to effectively monitor might also differ, the NPS-FM 2020 includes, as sub-pt 3, specific requirements relating to wetlands. Importantly, at para 3.23, the mapping and monitoring of natural inland wetlands are separately identified as activities. The mapping requirements relate to the establishment and maintenance of an inventory of natural inland wetlands (para 3.23(5)), and the obligation to develop and undertake a monitoring plan, including a requirement that a council have methods to respond if loss of extent or values are detected, is identified as a separate obligation (under para 3.23(6)).
[100] I observe, while the wording is different in the NPS-FM 2020, the obligations of monitoring and then taking action if loss of extent or value of a wetland is detected appear to be similar to the duties outlined in s 35(2)(a) of the RMA. The provisions in the NPS-FM 2020 in relation to wetlands have assisted me to reach the conclusion I have about the meaning of monitoring as it relates to wetlands under s 35(2)(a). But, as well, something cannot be monitored if what is being monitored is not first identified. For wetlands, mapping is a prerequisite to monitoring and monitoring is necessary to ensure effectiveness in relation to the Council's functions in respect of wetlands.
[101] Because I have concluded that monitoring has not occurred in relation to wetlands so as to enable the Council to effectively carry out its function under the RMA in relation to them, it follows that the obligation to take appropriate action, where shown to be necessary, is not able to be independently assessed. But, even if I am wrong about this, there is Mr Halligan’s evidence which I now address.
[102] Mr Halligan’s evidence, on behalf of the Council, addressed ELI's concern that, the lack of monitoring and enforcement action taken by councils was the weak link in the regulatory chain, resulting in unsatisfactory protection for wetlands.
[103] Mr Halligan explained that the compliance/resource management division of the Council comprises 10 fulltime employees who are responsible for monitoring the entire Southland region. It is true that many parts of the Southland region are remote which, in combination with the size of the region and staffing levels, means there is not a regular physical presence of compliance staff in large parts of the region. I accept the need to prioritise work and to work within budgetary restraints. Mr Halligan noted that dairy farm monitoring and associated activities, such as intensive winter grazing, have been a significant priority for the Council in recent years, as has industrial compliance.
[104] Mr Halligan referred to the Council’s Monitoring Policy which, for wetland drainage or water diversion, relies on community reports or notifications about such activities.
[105] Mr Halligan then referred to instances between February 2022 and June 2023 where compliance staff have responded to wetland-related issues.
(a) On two occasions, a letter of direction was issued. Mr Halligan explained this tool is used by the compliance team in situations where a reported incident is considered to be a minor or moderate situation where there is a cooperative party. The letter specifies what action is required to be taken or ceased and provides timeframes for so doing.
(b) On another occasion, a letter of advice was sent to a farmer concerning the potential clearing of a wetland.
(c) On the two remaining occasions, a formal warning and abatement notices were issued.
[106] Although this compliance action is evidence of monitoring, it can only be described as minimal. The monitoring undertaken on the ground cannot be described
as enabling the Council to effectively carry out its functions under the Act in relation to wetlands. As well, I agree with ELI that the issues underpinning this proceeding principally relate to unconsented activities and the alleged failure of the Council to monitor, detect and act on them.
[107] To be clear, although the other initiatives taken by the Council (above at [51]) in relation to community education, engagement initiatives and strengthening the scientific capability of the Council in relation to wetlands are noteworthy and laudable, they do not, in my view, fulfil the statutory obligation to monitor for the purposes of s 35(2)(a) of the RMA. While it is true the Council has a wide discretion in how it performs its statutory duties, they must still be performed. When the Council does not perform its statutory duties, this Court is required to step in.
Conclusion
[108] I have found the second cause of action to be made out in the plaintiff’s favour. I will determine the appropriate relief below and together with the first cause of action.
FIRST CAUSE OF ACTION: ALLEGED FAILURE TO COMPLY AND PUBLISH REVIEW
[109] As stated, the first cause of action is less fact specific and involves more abstract questions of law. It is hoped that my assessment of the second cause of action first assists in understanding these.
[110]To recap, s 35(2)(b) requires the Council to:
(a) monitor the efficiency and effectiveness of policies, rules or other methods in its plan; and
(b) take appropriate action (having regard to the methods available to it under the RMA) where it is shown to be necessary.
[111] Section 35(2A) requires local authorities, at intervals of not more than five years, to compile and make available to the public a review if its monitoring under s 35(2)(b).
[112]The issues to be determined on the first cause of action are:
(a) when do the Council's duties under s 35(2)(b) arise?
(b) if the duty to monitor has arisen, has the Council in fact complied with its obligations:
(i)under s 32(2)(b); and
(ii)under s 35(2A).
[113] The key point of disagreement between the parties in answering the above issue at [112](a) is determining what counts as the “plan” for the purposes of 35(2)(b).
[114] ELI submitted that the s 35(2)(b) duty extends to operative provisions of both the operative and proposed plans, i.e. "its plan" encompasses both the operative plan and rules in a proposed plan that have become operative by virtue of s 86F. The Council submitted that the duty only arises when the operative plan is approved under cl 20 sch 1 of the RMA.
[115] Should I find in favour of the Council, the “plan” that engages the duties under s 35 of the RMA will be the operative plan. If this is the outcome, the Council submits:
(a) the operative plan was made operative in 2012 and, following the various notification, hearing, submission and appeal processes for the new proposed plan, is now rendered almost entirely inoperative by the nearly fully operative proposed plan;
(b) to the extent the Council had obligations under s 35 regarding the operative plan, those obligations have been fulfilled by its s 32 report in the proposed plan process; and
(c) to the extent any s 35 obligations (including the s 35(2A) report) have not been fulfilled with regard to the operative plan, it would be an exercise in futility to do so, on the basis of (a).
[116] Should I find in favour of ELI, the Council would be obliged to fulfil the s 35(2)(b) and (2A) obligations. ELI submits:
(a) the Council’s fulfilment of its s 32 RMA obligations cannot be considered fulfilment of its obligations under ss 35(2)(b) and (2A); and
(b) there would plainly be value in executing s 35 obligations with relation to the amended operative plan which, on its view of the definition of plan, the Council is required to do.
When do the Council's duties under s 35(2)(b) arise?
Principles of statutory interpretation
[117] The meaning of s 35(2)(b) is to be ascertained from its text and in light of its purpose and its context.33 Though a recent change, the addition of the word “context” does not greatly alter the statutory interpretation exercise required of this Court. Purpose and context are overlapping concepts34 and context has always played a role in statutory interpretation.35
[118] There are limits. The contextual approach cannot be used to alter a term defined in the legislation.36 At the other end of the spectrum, the notion that the meaning of a statutory provision can be plain and unambiguous without having considered its purpose, has been labelled a “dubious proposition”.37
[119]Keane J observed that the purposive approach to statutory interpretation:38
[32] … calls for a balance to be struck between the text and the purpose, in which the latter is decisive. In 1992 Cooke P said that, as a matter of general principle, “strict grammatical meaning must yield to sufficiently obvious purpose”. That is so also where a provision is ambiguous or unclear. But a sensible balance must be struck. As the then chief parliamentary counsel,
33 Legislation Act 2019, s 10(1).
34 TN v Accident Compensation Corporation [2022] NZHC 1280 at [24].
35 Accident Compensation Corporation v TN [2023] NZCA 664 at [60]; Agnew v Pardington [2006] 2 NZLR 520 (CA) at [32].
36 Sajo Oyang Corporation v Ministry for Primary Industries [2017] NZCA 182, [2017] NZAR 611 at [37].
37 Talley v Fowler [2005] ELHNZ 321 (HC) at [49].
38 Holler v Osaki [2014] NZHC 1977, [2014] 3 NZLR 791 at [32].
George Tanner QC, said in 2005, “text is enlarged by purpose, and purpose is constrained by text”.
(footnotes omitted).
The legislation
[120] Part 5 of the RMA is entitled “Standards, policy statements, and plans”. It outlines the provisions that relate to plan-making and regional plans. Sections 63-70 deal with various matters that relate to regional plans and, at the outset of pt 5, ss 43AA to 43AAC outline matters of interpretation and meaning that apply to pt 5. Section 43AA was inserted into the RMA in 2003.
[121] Section 43AA is entitled “Interpretation”. It provides definitions for various terms used in the RMA “unless the context requires another meaning”. “Plan”, “regional plan” and “operative” are defined:
plan means [relevantly here] a regional plan or a district plan
regional plan—
(a) means an operative plan approved by a regional council under Schedule 1 (including all operative changes to the plan (whether arising from a review or otherwise)); and
(b) includes a regional coastal plan
operative, in relation to a policy statement or plan, or a provision of a policy statement or plan, means that the policy statement, plan, or provision—
(a) has become operative—
(i)in terms of clause 20 of Schedule 1; or
(ii)under section 86F; and
(b) has not ceased to be operative (emphasis added)
[122] Provisions in a regional plan can become operative in two ways by virtue of s 43AA. The defined term “operative” can refer to when a policy, statement, plan or provision has become operative in terms of cl 20(1) sch 1, this occurring when the plan has been approved and is publicly notified. The definition also refers to s 86F, which provides:
86F When rules in proposed plans must be treated as operative
(1)A rule in a proposed plan must be treated as operative (and any previous rule as inoperative) if the time for making submissions or lodging appeals on the rule has expired and, in relation to the rule,—
(a) no submissions in opposition have been made or appeals have been lodged; or
(b) all submissions in opposition and appeals have been determined; or
(c) all submissions in opposition have been withdrawn and all appeals withdrawn or dismissed.
(2)However, until the decisions have been given under clause 10(4) of Schedule 1 on all submissions, subsection (1) does not apply to the rules in a proposed plan that was given limited notification.
[123] ELI submitted that the word “plan” in s 35(2)(b) must include all operative policies and rules regardless of whether those provisions are situated in an operative plan or a proposed plan for the purposes of the definitions in s 43AA. This is not correct as s 86F only refers to rules and not policies. As noted, the Council’s view is that “plan” only encompasses plans approved under sch 1 of the RMA or, in other words, the operative plan.
ELI’s submissions and the legislative history
[124] The legislative history assists with understanding the purpose and context of s 35(2)(b) (and subsequent obligations under s 35(2A)) as it now appears in the RMA.
As enacted in 1991
[125] As originally enacted, s 35(2)(b) of the RMA referred to a duty to “monitor … the suitability and effectiveness of any policy statement or plan for its region or district” rather than “its plan”.
[126] The definitions of “plan” and “regional plan” were very similar to the definitions that now appear in s 43AA but “operative”, then in s 2, was defined as follows:
“operative” in relation to a policy statement or plan, or a provision of a policy statement or plan, means that the policy statement, plan, or provision has
become operative in terms of clause 20 of the first schedule and has not ceased to be operative.
[127]Thus, the reference now in s 43AA to a second route via s 86F was not present.
[128] However, s 19, as originally enacted, effectively provided for circumstances when rules could become “operative” or have legal effect:
19 Changes to plans which allow activities—
Where—
(a) a new rule, or a change to a rule has been publicly notified and will allow an activity that would otherwise not be allowed unless a resource consent was obtained; and
(b) the time for making or lodging submissions or appeals against the new rule or change has expired; and
(i)no such submissions or appeals have been made or lodged; or
(ii)all such submissions have been withdrawn and all such appeals have been withdrawn or dismissed-
then, notwithstanding any other provision of this Act, the activity may be undertaken in accordance with the new rule or change as if the new rule or change had become operative and the previous rule were inoperative.
1993 and 2001 Amendments
[129] An amendment to s 35(2)(b) was proposed by Resource Management Amendment Bills in 1999 and 2001.39 It was proposed that a Council be required to “monitor … the efficiency and effectiveness of policies, rules, or other methods in its policy statement or its plan”. This amendment was said to be needed to “clarify monitoring requirements for policy statements and plans and the requirement to keep and make available for the public, information relating to resource consents”.40 The explanatory note in the Resource Management Amendment Bill (No 2) 2003 (which actually effected the amendment) provided the same rationale.
[130] No change was made to the definitions of “plan”, “regional plan” or “operative” in these amendments.
39 Resource Management Amendment Bills 1999 and 2001, cl 14 in both instances.
40 Resource Management Amendment Bill 1999 (explanatory note).
[131] ELI pointed to the “wider context” of the Bill to explain the change in language in s 35(2)(b) from “any … plan” to “its plan”.
[132] Prior to 2003, rules in operative and proposed plans could have effect at the same time. In the resource consent application process, this would effectively mean that the provisions in two plans would need to be considered in the decision-making process. This was noted to be an unacceptably complex state of affairs, with one Ministry for the Environment report stating:41
Under the present regime, a proposed plan has effect, alongside the operative plan, as soon as it is notified. During the resource consent process, as a result of case law, the weight that is given to a proposed plan is determined by the distance through the plan preparation process. Effectively there are two plans that come to bear on the resource consent decision process. This means that if the proposed plan and operative plan describe the same activity as requiring different categories consent, the applicant may require separate consents for the same activity…
[133] The Select Committee report on the 2001 amendments referred to the potential for extra cost for an applicant who might be required to obtain resource consent under both operative and proposed plans, and the potential difficulty that regulatory controls under proposed plans had not benefited from refinement through the public submission process. The Select Committee noted their support for the concept that a rule that has progressed to being beyond challenge should supersede a corresponding rule in an operative plan and recommended that provision for this should remain in the Bill.42
2003 Amendments
[134] In relation to the identified problem concerning which rules might apply during the plan change process, the explanatory note to the Resource Management Amendment Bill (No 2) 2003 said, at 4:
Deferring of rules and proposed plans: councils will be able to make a resolution deferring certain rules coming into force immediately. Rules and proposed plans will replace corresponding rules in the operative plan once they are beyond challenge.
41 Ministry for the Environment, “Proposals for Amendment to the Resource Management Act” (November 1998) at 31.
42 Resource Management Amendment Bill 2001 (313-2) at 10–12.
[135] These changes were given effect in the 2003 Amendments43 by repealing and replacing the originally enacted ss 19 and 20 of the RMA with the following versions:
19 Certain rules in proposed plans to be operative
(1) A rule in a proposed plan is to be treated as if it is operative and any previous rule is inoperative if the time for making submissions or lodging appeals on the rule has expired and—
(a)no submissions in opposition have been made or appeals have been lodged; or
(b)all submissions in opposition and appeals have been determined; or
(c)all submissions in opposition have been withdrawn and all appeals withdrawn or dismissed.
(2) Every reference in this Act or in regulations to a plan or an operative plan is to be treated as including a rule in a proposed plan that is operative in accordance with subsection (1).
20 Certain rules in proposed plans not to have effect
(1) A local authority may, before publicly notifying a proposed plan, resolve that any rule in the plan does not have effect until the plan becomes operative.
(2) Public notification of the plan must include the resolution.
(3) If the resolution is rescinded, the local authority must, as soon as possible, publicly notify—
(a)the rescission; and
(b)the resolution to which it relates; and
(c)the date of the rescission.
(4) A rule to which a rescinded resolution relates has effect as a rule in the plan for all purposes on and from the day after the date on which the rescission is publicly notified.
(5) A reference in this Act (except in Schedule 1) and in any regulations made under this Act to a proposed plan excludes a rule in the plan if—
(a)the rule is subject to a resolution under subsection (1); and
(b) the resolution has not been rescinded. (emphasis added)
43 Resource Management Amendment Act 2003, s 8
[136] ELI submitted that s 19(1) has a similar text and effect to what is now s 86F(1), including a mechanism by which rules in a proposed plan would become operative once beyond challenge and, consequently, corresponding rules in an operative plan would become inoperative. They also note s 19(2) expressly deemed every reference in the Act to a “plan” or “operative plan” to include a rule in a proposed plan that is operative in accordance with s 19(1). Finally, s 20 gave councils a mechanism to override the effect of s 19(1) through express resolution. ELI referred to Hansard records that show the intention of the amendment was for proposed plan rules, that are beyond challenge, to be considered with the operative plan, despite those rules’ genesis being the yet to be finalised proposed plan.44 Thus, there would be one plan comprising both documents.
[137] Accordingly, the effect of s 19(2) is said to explain the change, effected in 2003 alongside the s 35 amendment, to s 35(2)(b) from the plural “any…plan” to the singular “its…plan”. The “plan”, according to ELI, is the operative plan, plus any operative rules in the proposed plan and minus any correspondingly inoperative rules in the operative plan (as opposed to both the operative and proposed plan, down to corresponding provisions). ELI submitted the position following the 2003 amendments was therefore, under s 35(2)(b), that councils were required to monitor the effectiveness and efficiency of rules in operative plans, including all rules of a proposed plan treated as operative under s 19(1).
[138] ELI submitted the position following the 2003 amendments continues to apply and is also the position the Council now submits would be a “nonsense”.
2009 Amendments
[139]In 2009, the RMA was amended once again. The 2009 amendments:
(a) repealed ss 19 and 20;45
(b) replaced them with ss 86A-86G46 which, according to ELI:
44 (20 March 2003) 607 NZPD 4294; (7 March 2003) 608 NZPD 5505.
45 Resource Management (Simplifying and Streamlining) Amendment Act 2009, s 18.
46 Section 68.
(i)retained, in s 86B(1)(c) and 86C, materially similar provisions to s 20;
(ii)retained, in s 86F, a materially similar provision to s 19(1)); and
(c) amended the definitions of “regional plan” and “operative” and resituated them, along with the definition of “plan” in s 43AA.47
[140] The new definition of “operative” included a link to s 86F and, together with a new s 86G, had, ELI submitted, some functional similarity to the former s 19(2).
[141] ELI submitted s 86G approaches the former s 19(2) from a different angle. Where s 19(2) provided that references to a “plan” included rules in a proposed plan that were operative, s 86G(1) provides:
(1) A reference in this Act or in any regulations made under it to a rule in a proposed plan does not include a reference to a rule in the proposed plan that—
(a)has not taken legal effect in accordance with section 86B; or
(b)has not become operative under section 86F.
[142] To positively rephrase the provision, s 86G provides that a reference in the RMA, or in any regulations made under it, to a rule in a proposed plan only includes a reference to a rule that has taken legal effect in accordance with section 86B or has become operative under section 86F.
[143] Section 43AA was also included in the Act that gave the current definition of regional plan, notably one that includes “all operative changes to the plan” and, in tandem, the definition of “operative” was amended to explicitly incorporate s 86F.
[144]ELI submitted that:
(a) although s 19(2) was repealed, s 86G(1) had the effect of confirming that reference to a rule in a proposed plan included reference to rules in a proposed plan to the extent they were operative under s 86F; and
47 Section 42.
(b) the new definition of “operative” “pulled through” the effect of s 86F so that an “operative” plan or provision of a plan included a rule in a proposed plan that was treated as operative.
[145] For these reasons, ELI submitted, the 2009 amendments did not alter the position that existed following the 2003 amendments, namely that the word “plan” included the operative rules of a proposed plan.
[146]Accordingly, ELI submitted:
(a) the legislative history contradicts the Council’s assertion that ELI’s interpretation of s 35(2)(b) (requiring Council’s to monitor the effectiveness and efficiency of all operative provisions of their plan) is unworkable and/or absurd as this was explicitly the position following the 2003 amendments; and
(b) although there was substantial amendment to the Act in 2009, nothing suggests this regime was supposed to change.
The Council's submissions
[147] At the outset, the Council maintained that obligations under s 35 are only applicable to the operative plan, resting its argument on the definition of “regional plan” that, under s 43AA, only refers to a plan approved by a Council under sch 1 of the RMA. The Council noted the exception in s 86F but stresses, against ELI’s first set of submissions, that this only applies to rules. The Council submitted that to ignore the plain meaning of regional plan in s 43AA would “create a nonsense”, referring to the following policy points:
(a) The dates on which rules in a proposed plan are treated as operative under s 86F, by virtue of the plan process, vary.48 The Council submitted ELI’s interpretation would require it to “monitor and publish reports running from different time periods for each of the relevant rules in an incoherent way”.
48 Different provisions that are or are not appealed by submitters, may be addressed by Environment Court interim appeals and may be withdrawn at different times.
(b) Section 35(2A) provides that reports are required to be compiled, making available the results of monitoring under s 32(2)(b), at intervals of not more than five years. The Council noted not all the rules of the proposed plan have been “operative” for more than five years, either by virtue of sch 1 or s 86F of the RMA. Therefore, it is submitted, at the time ELI alleged the failure to comply with s 35(2)(b) in respect of the proposed plan, the Council was “not yet required to make available the results of monitoring of all “treated as operative” rules…as the obligation would only have arisen in respect of some of the rules”.
[148] The Council submitted ELI’s interpretation would offend the scheme and purpose of the RMA, noting that such a proposition could lead to “an absurd situation where the Council would be required to monitor the efficiency and effectiveness of policies or other methods of the operative plan and rules of the proposed plan.” This is said to be the “antithesis” of the Council’s function to prepare objectives, rules and policies that achieve integrated management and would also, it is submitted, impose unduly burdensome obligations.
[149] The Council stressed that it would be “impossible” to assess the efficiency and effectiveness of rules without considering whether they are effective at implementing the relevant policies; if the policies are not yet operative but the rules are required to be monitored, it is unclear how the efficiency and effectiveness of rules should then be assessed.
[150] In its supplementary submissions, to the extent that the legislative history involves changes to the relevant provisions, the Council submitted this further emphasises its key point, namely that, if Parliament had intended the duty in s 35(2)(b) to apply to a plan that had not yet been made operative in accordance with sch 1 of the RMA, it would have said so.
[151] The Council accepted that the provisions of the RMA were amended to allow for newly notified plans to have legal effect and demand compliance before being made operative, per s 19(2) of the RMA post the 2003 amendments.
[152] However, while the Council accepted the current provisions allow for a similar circumstance, it noted the wording of the sections has changed over time. For example, while s 19(2) referred to every reference in the RMA to “a plan” or “operative plan” being treated as including a rule that is treated as “operative”, this wording was not carried over when s 86G was enacted. Rather, s 86G provides that reference to a rule in a proposed plan does not include reference to a rule that has not taken legal effect or become operative under s 86F. It is noteworthy that the wording in s 86G is to a “proposed plan” rather than to a “plan” (which is separately defined in s 43AA). The Council submitted this is consistent with the purpose of ss 86B-86G set out in s 86A, which is to “specify when a rule in a proposed plan has legal effect”.
[153] But, as well, the Council submitted that s 35(2)(b) was amended in 2003 from monitoring “the suitability and effectiveness of any plan for its regional district”, to “the efficiency and effectiveness of policies, rules or other methods in its plan”. Essentially, the Council mounted the same argument as ELI, but, in the Council’s view, the singular plan referred to is the plan approved under sch 1.
[154] The Council submitted this is particularly so, given the reference to policies and methods in the obligation to monitor, noting that policies and methods did not (and do not) become operative under the former s 19 or the current s 86F, further emphasizing that the “plan” referred to in s 35 must be the plan approved under sch 1.
[155] As well, the Council noted s 35 has always referred to operative and proposed plans. Had the monitoring obligation engaged elements of the proposed plan, Parliament would have said so. It has not.
[156] The thrust of the Council’s supplementary submission is that s 43AA should be taken on its face and that many of ELI’s submissions in favour of its interpretation are double edged.
Discussion
[157]I am persuaded by ELI’s argument.
[158] I refer to the Court of Appeal’s observation that old and oft-amended statutes cannot be expected to “clip together with the precision of a new Act”,49 that observation readily applies to the RMA. This is reinforced, in my view, by the fact both parties’ arguments are entirely sensible. This Court is tasked with making the discretionary decision of which argument aligns best with the RMA.
[159] As noted, some of the arguments mounted in favour of one party’s approach cut both ways. This is most visible in both parties resting on the submission that, if Parliament had intended for an outcome, it would have made that clear. For ELI, the regime was clearly in favour of its position post 2003. The amendments made in 2009 confuse matters on this point slightly but do not, by any means, void what, as the Council acknowledges, was the position, namely that both the operative and proposed plan could and did operate at the same time. For the Council, despite the numerous amendments made to the RMA, the definition of “regional plan” under s 43AA has never been amended to completely reflect what ELI argues for. Despite the definition of “operative” being amended to expressly refer to s 86F in s 43AA, there were no changes made to cross-refer to s 86F in the definition of “regional plan”.
[160] The Council’s primary submissions stress its view that the position advanced by ELI is unworkable. The now repealed s 19(2) of the RMA confirms that the approach suggested by ELI was, at that stage, quite explicitly the statutory intention. This is the clear effect of the 2003 amendments and was confirmed by Parliament at the time.50 The Council acknowledged this in its submissions. While s 19 was repealed, it does not appear any alteration of the old provision’s effect was intended and, in fact, alterations such as to the definition of operative and Select Committee commentary suggest intentional continuity of the regime, albeit with some editing to provide greater clarity.51
[161] The Council’s argument possesses an attractive simplicity and, as I noted at the beginning in assessing the relevant principles, the text of a provision (specifically 43AA and the definition of regional plan) will be difficult to displace. However, other
49 PauaMAC5 Inc v Director-General of Conservation [2018] NZCA 348, [2019] 2 NZLR 1 at [50].
50 (20 March 2003) 607 NZPD 4294; (7 March 2003) 608 NZPD 5505.
51 Resource Management (Simplifying and Streamlining) Amendment Bill 2009 (18–2) at 21 and cl 59.
statutory provisions (such as the definition of "operative" under s 43AA, s 86F and even the meaning of "regional plan" under s 43AA again) have some bearing on this analysis, as well as the purpose and context of the Act.
[162] ELI submitted this is a situation where the context requires that the word “plan” in s 35(2)(b) be given a meaning other than the definition applied to it in s 43AA, because s 43AA is caveated with the qualifier “unless the context requires another meaning”. In relation to this, I agree with ELI that it is well accepted that a definitional context provision may be invoked when indications from the legislative scheme, or the legislative history, require it.52
[163] In this regard, I accept ELI's observation that the language of s 35(2)(b) was introduced as part of a wider scheme of amendments in 2003 which unequivocally included the operative provisions of a proposed plan within the meaning of “plan” by virtue of s 19(2). Accordingly, when Parliament changed the language of s 35(2)(b) from “any … plan” to “its plan” it did so in the context of this wider framework and definition. But, as well, there is nothing to suggest that any attention was given to what these changes might mean in relation to the Council’s duties under s 35(2)(b) when the 2009 amendment was promulgated. I am persuaded that this appears to have been a legislative oversight or unintended consequence when it comes to the use of the word “plan” in s 35(2)(b). I accept ELI's argument that it is appropriate to read the word “plan” in s 35(2)(b) as having the same meaning as it had following the 2003 amendments.
[164] I accept ELI's submission that, in these circumstances, it must be the case that the word “plan”, as used in the definition of “operative” must include operative rules, as defined by s 43AA, as referenced by s 86F and even as referenced in the definition of "regional plan". Otherwise, as was submitted, the tautological reference to “plan” in the definition of “operative” would cut against the reference to s 86F in the definition “operative”, which must be intended to pull through, into the meaning of “operative”, certain provisions in a proposed plan.
52 Ross Carter Burrows & Carter, Statute Law in New Zealand (6th ed, LexisNexis, Wellington 2021) at 571–576, cited for example Allenby v H [2012] NZSC 33, [2012] 3 NZLR 425 at [82]; New Zealand Meat Workers and Related Trades Union Inc v Affco New Zealand Ltd [2017] NZSC 135, [2018] 1 NZLR 212 at [58]–[65].
[165] It has been said before that Pt 2 of the RMA is its “engine room”.53 In my view, that equally applies to the rules in a plan, in the sense that they define what activities are authorised, in what circumstances and what are not. It would be hard to conceive of operative rules under a proposed plan in a s 86F scenario that are contrary to policies or objectives that they are required to implement. This is especially the case when the rules are dealing with matters of national importance, under s 6, which identifies certain natural elements (wetlands being one) as matters that are required to be preserved and/or protected.
[166] As well, the Council said it has no obligation to monitor the efficiency and effectiveness of the proposed plan under s 35(2)(b) to the extent the rules in that plan were treated as operative under s 86F and “further monitoring” outside the s 32 obligations “would be an exercise in futility”. This would cut across the requirement that, in exercising its functions under the RMA, the Council is required to do so with reference to Pt 2. The plan change process can take many years to conclude. If the Council’s argument is correct, as Mr Bullock submitted, on the facts of this case, it would mean that the Council’s duty to monitor under s 35(2)(b) and report under s 35(2A) might not arise for many years. Such an outcome would not be aligned with the scheme of the RMA.
[167] I now deal with the issues the Council have claimed will arise should ELI’s interpretation be preferred (above at [146]):
(a) The inference from [146](a) above is that multiple rules coming in at various times would make a s 35 report unworkable. I disagree. If, in the course of effecting s 35 duties, new rules come into play, that can be managed. This may require extra time to discern what rules in the proposed plan are in fact operative under s 86F, but I do not consider that to be an unduly onerous exercise. As an example of this, s 35(2A) reports are required every five years. That report need only outline the results of the monitoring undertaken, which will be influenced by whatever rules are operative at the given time. As well, it is not as if new rules are operative on a daily or even regular monthly basis. There is admittedly some
53 Auckland City Council v John Woolley Trust (2008) 14 ELRNZ 106 (HC) at [47].
complexity here, but that is simply the nature of resource management at this level. Further, this proposition is a more sensible one than s 35 duties being almost entirely ignored.
(b) The issue at [146](b) above largely follows on from [146](a), in that the Council notes not all rules subject to s 86F were operative when proceedings were issued, or even due for review under the five-year timeline, but are now. That situation is not unworkable. From the date the s 35 inquiry is conducted, some rules will be operative and some will not. The obligation is to meet the s 35 requirements based on the operative plan at the time, including the operative rules under s 86F.
[168] To the above points, I note that, in Council submissions, there is no concrete example, with reference to specific rules and their corresponding policies or objectives, of the difficulties said to be inherent in ELI’s view of s 35’s practical application.
[169] In terms of the wording of the statute, the definition of “regional plan” is not as decisively in the Council’s favour as was submitted. The s 43AA definition refers to an “operative” plan and expressly includes “all operative changes to the plan”. Operative is a defined term in the Act and was amended in 2009 to include reference to s 86F. Put simply, operative means operative.
[170]Further to this point, I note s 86A of the Act states:
86A Purpose of sections 86B to 86G
(1) The purpose of sections 86B to 86G is to specify when a rule in a proposed plan has legal effect.
(2) Except to the extent that subsection (1) applies, sections 86B to 86G do not limit or affect the weight that a consent authority gives to objectives, policies, and other issues, reasons, or methods in plans before the plan becomes operative.
(emphasis added)
[171] That is the introductory section to the part of the Act that outlines ss 86F and 86G. If rules in the proposed plan are “operative” per the term defined in the Act and
have “legal effect”, I do not see how I could nonetheless find that a reference to “plan” does not include such operative rules.
[172]Accordingly, I prefer ELI’s interpretation of the statutory provisions.54
Conclusion
[173] I conclude that the reference to “its plan” in s 35(2)(b) is not limited to the operative plan approved under sch 1 but includes all provisions, including rules, that are declared to be operative as a matter of law prior to the final approval of a plan under sch 1.
[174] It follows that the Council, as a matter of law, has failed to comply with its obligations under s 35(2)(b) by failing to enforce those duties due to its misconceived notion of what “plan” in s 35 referred to.
Has the Council complied with its obligations under s 35(2A)?
[175] ELI’s pleading is that the Council “has not compiled and/or made available to the public a report of its monitoring” and “has failed to comply with its statutory obligations under s 35(2A)". The Council, in its statement of defence, admitted it had not compiled a report as stated but denied that it had not complied with its s 35(2A) duty, referring to its preparation of the proposed plan in the drafted s 32 report. The Council also pleaded that there was no utility in further monitoring of the operative plan once the proposed plan was notified on 3 June 2016. The lack of utility ground was specifically pleaded in response to the s 32(2A) plea but, as will be readily apparent by now (and I say this without critique), there is significant overlap between grounds and arguments made.
[176] ELI referred to its LGOIMA investigations that revealed the last s 35(2A) report was published in 2012 and, as the evidence stands now, it appears that was never made public.
54 Legislation Act 2019, s 10(1).
[177] In relation to the operative plan, the Council submitted there are good reasons for its lack of reporting. It submits that doing so would have lacked utility given that it had already notified its proposed plan and, therefore, unnecessary expenditure would have been incurred to do so. The Council, referring to the substance over form approach endorsed in several resource management cases, submitted the s 32 assessment was published and can be considered by the Court to be a review under s 35(2A).55 The Council submitted this is the case “even if [the s 32 report] was not intended to [amount to s 35 reporting]”. The Council further submitted that its notification of the proposed plan had actually gone further than what was required by s 35(2A). With reference to what might have been required, the Council referred to a report it published in relation to its coastal plan which comprised some 150 pages. I have referred to this report above at [46].
[178] ELI dismissed this as a retrospective justification that has no evidential basis.56 ELI also responded that the Council has statutory obligations under s 35 and cannot simply choose to ignore them.57 ELI contended that s 32 reports are forward looking, assessing what is required for a plan’s change, whereas s 35 reports are backward looking, assessing how effective plans currently are. While there is crossover, and s 35 reports can be the genesis of suggested changes, ELI submitted the provisions serve different purposes and a s 32 report cannot, by default, fulfil s 35 obligations with nothing more.
[179] ELI submitted the “issues register” referred to by Ms Hicks is an internal document for logging issues as they arise, which is in no way equivalent to the public benefit document required by s 35(2A).
[180] As well, even if the Council’s argument is accepted, and the s 32 report amounts to s 35 compliance, ELI submits there has been nothing in the nature of a s 35 report since then (that report being made public on 3 June 2016).
55 Sutton v Moule (1992) 2 NZRMA 41 (CA) at 47; Body Corporate 97010 v Auckland City Council [2000] 3 NZLR 513 (CA) at [50]; Currie v Palmerston North City Council [2022] NZHC 2909 at [56].
56 Citing Hanna v Whanganui District Council [2013] NZHC 1360 at [15].
57 Citing Fitzgerald v Muldoon [1976] 2 NZLR 615 (HC).
[181] In relation to the proposed plan, the Council’s primary submission was that its obligation to publish had not yet arisen. This argument was premised on my acceptance of its argument about the meaning of “its plan” which I have rejected but, in the alternative, Mr Maw submitted that, if the obligation does exist, the rules have not yet been treated as operative for five years because the rules relating to wetlands were only considered to be beyond challenge in 2022.
Discussion
[182] I find in favour of ELI’s submission that ss 32 and 35 serve different purposes and that the Council, in this instance, has not complied with its statutory obligations.
[183] A s 35(2A) review envisages monitoring of the efficiency and effectiveness of plan provisions under s 35(2)(b) and the Council compiling and making available the results of that monitoring every five years. The two regimes are complimentary, in that problems identified under s 35(2)(b) and reported on under s 35(2A) may form the basis of a proposed plan change under s 32, but they are not the same.
[184] ELI’s submission that s 32 is forward looking does not deem that provision problematic as such, ELI merely affirms the proposition that the provisions serve distinct purposes. I agree. Were it the case that s 35 obligations could simply be bundled into s 32 compliance, there would be no reason for s 35 to exist on its own. Despite the many amendments made to the RMA over the years, s 35 has not been amended in a manner that suggests it is anything but a distinct and separate statutory obligation. Here, and in relation to s 35(2A), the fact no real attempt has been made at a s 35(2A) report since 2012 suggests, since then, the Council knows what is required.
RELIEF
[185] ELI’s first cause of action relates to its view that the Council has failed to publish a review of the results of its monitoring of the effectiveness and efficiency of the policies and rules in its plan that s 35(2A) requires every five years. After reviewing the Council’s initial evidence, ELI also submitted the Council, by virtue of
its incorrect view as to what a “plan” is, also failed to comply with its primary monitoring obligation under s 35(2)(b).
[186] On its first cause of action, ELI sought the following orders be made with respect to s 35(2)(b):
(a) a declaration that the Council has failed to comply with s 35(2)(b);
(b) an order that the Council comply with s 35(2)(b) with respect to the operative provisions of the operative plan and the proposed plan;
(c) a declaration that the preparation of a s 32 report is not a substitute for s 35(2)(b) monitoring; and
(d) a declaration that s 35(2)(b) requires a local authority to monitor the effectiveness and efficiency of policies, rules or other methods in any operative or partly operative plan to the extent they are operative or treated as operative.
[187]As well as the following orders with respect to s 35(2A):
(a) a declaration that the Council has failed to comply with s 35(2A); and
(b) an order that the Council comply with s 35(2A) with respect to s 35(2)(b) monitoring the operative provisions of the operative and proposed regional plans.
[188]On its second cause of action, ELI sought the following orders:
(a) a declaration that the Council has failed to monitor the state of the environment as regards wetlands and wetland drainage as required by s 35(2)(a) since 2018;
(b) a declaration that the Council has failed to take appropriate action where this is shown to be necessary as required by s 35(2) since 2018; and
(c) an order that the Council comply with its obligations under s 35(2) as regards wetlands and wetland drainage.
Legal principles
[189] The following principles of relief in judicial review proceedings were aptly summarised by Katz J in Smith v Attorney-General:58
[151] Relief in judicial review proceedings is discretionary. Courts are, however, more reluctant to grant a remedy where it is futile to so, or where the proceedings are moot or of academic interest only. … Where the issues are of general and public importance, particularly involving public authorities and public law issues, the discretion remains. The discretion is categorised as being for exceptional circumstances, or where issues have a wider significance and will affect a wide group of people.
[152] … successful judicial review applicants are entitled to vindication, in particular via a declaration, unless there are special considerations to the contrary or extremely strong reasons for refusal. It is also important that justice is seen to be done, and judicial review may serve a deterrent function. …
(footnotes omitted)
[190] As well, because declarations have been sought, the Court of Appeal’s observation with respect to the principles established under the Declaratory Judgements Act 1908 are pertinent:59
[80] It is well-established that a court will generally not make a declaration under the Judicature Amendment Act unless there is a dispute between the parties, the dispute arises from specific facts which are already in existence, the dispute is alive and its determination will be of some practical consequence to the parties or the public. The requirement that the declaration have utility means that it should be fact-specific, efficacious and capable of practical application.
[191] There, the Court of Appeal set aside this Court’s declaratory judgment on the grounds that it was “in such general and non-specific terms [as to] not meet the utility requirement for a declaration”.60 Finally, I note the following further principles drawn from the case law:
(a) the broad question for this Court’s determination is whether justice requires a declaration;61
58 Smith v Attorney-General [2017] NZHC 136, [2017] NZAR 331.
59 Department of Internal Affairs v Whitehouse Tavern Trust Board [2015] NZCA 398, [2015] NZAR 1708 at [80].
60 At [86].
61 Kung v Country Section New Zealand Indian Association Inc [1996] 1 NZLR 663 (HC) at 665– 666.
(b) the jurisdiction to make a declaration is wide and the Court may, on any ground it deems sufficient, refuse to grant;62 — courts have declined to issue declarations where the question is one of mixed law and fact, the question is abstract or hypothetical, the order would have no utility,63 and where there is a lack of evidence or submission around wider unintended consequences of declaration;64 and
(c) the Court is not entitled to decline a declaration on the basis that the legislation is not clear, it being the fundamental role of the Court to provide that clarity.65
Submissions
[192] As a general submission, Mr Maw submitted ELI's proposed wording of both the declarations and the orders lack specificity with respect to the proposed plan, namely in terms of what provisions the relief applies to and when the stipulated obligations arise.
[193]With reference to each of the declarations sought, he further submitted:
(a) The obligation under s 35(2A) has not yet arisen with respect to the proposed plan.
(b) Regarding the order seeking declaration that s 32 reports cannot substitute s 35 reports, Mr Maw submits it is too broadly framed and does not respond to the facts of the proposed plan. He noted that other councils may well produce a combined ss 32 and 35 report so that any declaration made needs to specifically relate to this case.
(c) The drafting does not follow the wording of s 35(2)(b) which requires the monitoring of the effectiveness and efficiency of policies, rules or other methods in any plan.
62 Declaratory Judgements Act 1908; and Body Corporate 455529 v Auckland Council [2023] NZHC 3047 at [46].
63 Electoral Commission v Tate [1999] 3 NZLR 174 (CA) at [30].
64 Body Corporate 455529 v Auckland Council, above n 62, at [50].
65 Moveme Health Ltd v New Zealand Artificial Limb Service [2023] NZCA 621 at [90].
[194] In relation to the order sought as part of the relief, Mr Maw submitted the Court should not issue anything other than declarations as relief.66 He referred to Commerce Commission v Fletcher Challenge Ltd where McGechan J held (accepting in a different context):67
In an administrative law context the Court of course cannot issue injunctions against the Crown, and is confined to declaratory relief : Crown Proceedings Act 1950 s 17. By convention such declarations are obeyed. Likewise, when dealing with other public bodies in an administrative law context the Court may be confident that mere declarations will be effective.
(emphasis added)
[195] In The Trustees of the Motiti Rohe Moana Trust v Bay of Plenty Regional Council, an interim decision on jurisdiction, the Chief Environment Judge said:68
[61] The High Court has said that a declaration neither commands nor restrains action.69 On that basis, in making a declaration a Court ought not to tell a respondent what to do. By convention, the Crown obeys declarations made by courts of competent jurisdiction and the High Court has expressed confidence that mere declarations will be effective when dealing with other public bodies in an administrative law context.70
[196] In that case, the Environment Court was dealing with a jurisdictional issue in relation to its power to make declarations under ss 310-313 of the RMA. In respect of that power, the Chief Environment Judge said:
[62] The other courts of New Zealand, being established by statute, do not have inherent jurisdiction. The power of the Environment Court to make declarations under ss 310–313 of the RMA is a notable conferral by Parliament of the power to make declarations on a lower court. It is not a general power, but one established and defined by the RMA. While appearing to be a broad power with a list of possible applications, it has been held not to extend to making declarations relating to defects of an administrative nature. Arguably, a consequence of enacting a list of specific applications of a power may be to limit its general extent, if the maxim of interpretation that the expression of one thing excludes the other is considered to be applicable. In any case, the detailed text of s 310 indicates that the Environment Court should give particular attention to the type of declaration being sought.
(footnotes omitted)
66 Commerce Commission v Fletcher Challenge Ltd [1989] 2 NZLR 554 (HC); The Trustees of the Motiti Rohe Moana Trust v Bay of Plenty Regional Council [2020] NZEnvC 180, (2020) 22 ELRNZ 144.
67 Commerce Commission v Fletcher Challenge Ltd, above n 66, at 610.
68 The Trustees of the Motiti Rohe Moana Trust v Bay of Plenty Regional Council, above n 66.
69 Sisters of Mercy (Roman Catholic Diocese of Auckland Trust Board) v Attorney-General HC Auckland, CP219/99, 6 June 2001 per Randerson J at [51], citing Aronson, Judicial Review of Administrative Action (1996), 861.
70 Commerce Commission v Fletcher Challenge Ltd, above n 66, at 610–611.
[197] Finally, while the Council accepts that an order in the nature of mandamus is available where there is a reviewable error or failure to perform a statutory duty, the Council submits such an order is inappropriate in light of the statutory discretion provided to the Council as to how it carries out its functions in this respect, and that such an order would have no utility, given that it could do little more than order the Council to comply with its guidance as to how this could be achieved.
[198] The Council submits that the orders sought would be of limited utility in that, should this Court consider ss 35(2)(a) and (b) to have been breached by the lack of monitoring, an order that the Council complies does not assist the Council in actually doing so. Regarding the report, the Council submits an order to compile one would only result in additional and pointless administrative expense.
[199] While noting that the convention referred to in Commerce Commission v Fletcher Challenge Ltd is correct, Mr Bullock referred to the reasoning behind the convention, namely, that courts are part of the Crown, as are the executive and Parliament. However, in relation to other public bodies, he emphasised the discretionary nature of the confidence expressed by McGechan J.
[200] In this case, with reference to s 16 of the Judicial Review Procedure Act, Mr Bullock submitted that an order is appropriate because Parliament has told the Council what it is required to do in the RMA, thus the order sought is akin to an order of mandamus.
Discussion - declarations
[201] I have found the Council failed to exercise its discretion in a way that promoted the RMA’s purpose and objectives, and derogated from its statutory duties, in the language of judicial review noted above at [16]–[19]. Accordingly, ELI is entitled to some relief.
[202] Much of the Council’s submission as to relief has already been addressed. Because I have taken a different view of what “plan” in s 35 refers to and what is required under s 35(2A), the Council’s primary submissions on why declarations should not be issued cannot succeed.
[203] I have found the Council failed to comply with ss 35(2)(b) and (2A). On its own admission, the Council adhered to a view of its s 35 obligations, premised on its interpretation of what “plan” in s 35 referred to, which I have not accepted.
[204] I do not agree that there would be no utility or value arising from declarations. On the contrary, they will provide the Council and other councils guidance about the execution of their s 35 duties.
[205] The only declaration I take issue with is at [27](c) of the amended statement of claim, where ELI sought for a declaration “that the preparation of a s 32 report is not a substitute for s 35(2)(b) monitoring”.
[206] The Council accepts that, when the s 32 report was prepared, it was not contemplated that it would also compromise a report for the purposes of s 35. On this point, the Council submitted:
… the Court cannot be confident that there would not be unintended consequences of making such a declaration. Other councils may have already taken this approach in a lawful manner, and the Court has not received evidence or submissions on whether this is the case.
The Council submits there may in fact be scenarios where a council could comply with its obligations under section 35 through its section 32 report (as section 35 provides councils with a broad discretion as to how they fulfil these obligations) and therefore the Court should not make the declaration sought.
[207] I have considered Body Corporate 455529 v Auckland Council, cited by the Council in support of this submission.71 While I agree with Gordon J’s finding at [44], the proposition advanced by the Council here in reliance on that judgment should be scrutinised carefully. No evidence has been provided to support the submission in this case, and such evidence would not have been hard to come by.
[208] I agree with ELI’s submission that a s 35(2A) report anticipates that councils will, over the preceding five-year period, have been monitoring the effectiveness and efficiency of plan provisions under s 35(2)(b), and will take appropriate action where necessary. This is a straightforward reading of the RMA that supports, but is not necessarily subsumed by, the requirements outlined in s 32. In this case, the Council’s
71 Body Corporate 455529 v Auckland Council, above n 62.
reference to its s 32 report was essentially a retrospective justification, something this Court will always be wary of,72 and, in any case, was insufficient to meet the statutory criteria.
[209] Nonetheless, there may be a situation where a combined report could address both ss 32 and 35 factors, if this was done intentionally and clearly, and in a manner that does not fall below the obligation threshold both provisions impose. While I have no evidence of a combined report that addresses both functions successfully, neither can I rule out that possibility. As such, I am unable to issue a declaration on this as it would not have the required utility,73 and, on the submissions and evidence before me, I am wary of finding anything more than, in this case, that the s 32 report authored with no thought to s 35 was insufficient having regard to the s 35 obligations.74
Discussion - orders
First cause of action
[210] I am not persuaded it is appropriate to make the orders sought. ELI applies for orders that are best characterised as orders in the nature of mandamus, or an order that a duty be performed.75 Such orders secure the performance of public duties,76 and will be declined where there is a remedy “equally beneficial, convenient and effective”,77 or where it appears the mandamus will not be practically effective to secure its object.78 Orders have been issued to compel a person to perform a public duty where there has been a wrongful failure or refusal to discharge a legal duty.79
72 Hanna v Whanganui District Council, above n 56, at [15].
73 Department of Internal Affairs v Whitehouse Tavern Trust Board, above n 59, at [80].
74 Body Corporate 455529 v Auckland Council, above n 62, at [48]–[50].
75 Jessica Gorman and others McGechan on Procedure (online ed, Thomson Reuters) at [HR30.2.03].
76 Ngunguru Coastal Developments Ltd v Māori Land Court [2011] NZAR 354 (HC) at [35].
77 Barton v Licensing Control Commission [1982] 1 NZLR 31 (HC) at 38–39.
78 Deliu v Office of the Judicial Conduct Commissioner [2012] NZAR 80 (HC), at [53]; Talley’s Fisheries Ltd v Minister of Immigration HC Wellington CP201/93, 10 October 1995, at 46.
79 Harrison v Auckland District Health Board [2012] NZHC 2693 at [63] and [113]; Nicholas v Mooney [1968] NZLR 266.
[211] First, as noted above, this Court will be extremely reluctant to interfere with the discretionary exercise of a council’s powers under the RMA. The order seeks to require the Council to comply with its obligations under ss 35(2)(b) and (2A). I decline to make the order because:
(a) The Council did not intentionally flout its obligations. It believed that it was complying. The error in that view has been explained in this judgment and affirmed by the declarations I have issued. The Council does not need an order to require it to comply with the law in such a situation.
(b) Though the Court may order the duties under s 35 be carried out “according to law”,80 the orders would be of limited utility. The Court is not in a position, on the evidence, to make an order with any useful level of detail. Any order made for the Council to meet its “obligations” under s 35 would likely be so general and non-specific as to be futile.81
(c) The declarations issued are a sufficiently effective form of relief.82 I am satisfied that justice has been done and has been seen to be done by their effect.83
[212] I agree with the Environment Judge’s finding in The Trustees of the Motiti Rohe Moana Trust, as referred to by Mr Maw. I trust the Council will, by convention and subject to appeal, heed the declarations made by this Court and adjust its compliance accordingly.84
[213] There is public interest in the Council being held to account in relation to the duties it is required to fulfil under ss 35(2)(b) and (2A). The declarations I have issued are sufficient for this purpose in light of the clear evidence about the state of Southland’s wetlands degradation over a very short space of time.
80 Right to Life New Zealand Inc v Rothwell [2006] 1 NZLR 531 (HC) at [6].
81 Deliu v Office of the Judicial Conduct Commissioner, above n 78, at [53].
82 Barton v Licensing Control Commission, above n 77.
83 Smith v Attorney-General, above n 58, at [151]–[152].
84 The Trustees of the Motiti Rohe Moana Trust v Bay of Plenty Regional Council, above n 66, at [61]; Commerce Commission v Fletcher Challenge Ltd, above n 66, at 610, ll 38-41.
Second cause of action
[214] The approach to the first cause of action will be repeated here and for the same reasons. Declarations that the Council has failed to comply with its legal duties under s 35(2)(a) since 2018 and s 35(2) are appropriate. However, an order directing the Council to comply is neither necessary nor appropriate, for the same reasons I have outlined above at [209].
RESULT
[215]Accordingly, I make the following declarations:
(a) the Council has failed to comply with s 35(2)(b) of the RMA with respect to the proposed and operative plans;
(b) the Council has failed to comply with s 35(2A) of the RMA with respect to the proposed and operative plans;
(c) section 35(2)(b) requires a local authority to monitor the effectiveness and efficiency of policies, rules, or other methods in any operative or partly operative plan to the extent it is operative;
(d) the Council has failed to monitor the state of the environment as regards wetlands and wetland drainage as required by s 35(2)(a) since 2018; and
(e) the Council has failed to take appropriate action where this is shown to be necessary as required by s 35(2).
[216]For the reasons outlined, I decline to grant the orders sought, namely that:
(a) the Council “comply with its obligations under s 35(2) as regards wetlands and wetland drainage”; and
(b) the Council comply with its obligation under ss 35(2)(b) and 35(2A) by monitoring the efficiency and effectiveness of the operative plan and the proposed plan and compiling and making available to the public a review of the results of its monitoring under s 35(2)(b) with respect to the operative plan and the proposed plan.
[217] For the reasons outlined above, I decline to issue a general declaration that the preparation of a s 32 report, to support the notification of a plan change, is not a substitute for the monitoring obligations under s 35(2)(b) or reporting obligations under s 35(2A). I only note that the Council did not meet its statutory obligations in this case.
[218] The applicant is entitled to costs. If the parties are unable to reach agreement, they have leave to file memoranda (not exceeding ten pages each). In this event, a memorandum (joint if possible) outlining a suggested timetable for the filing of costs memoranda is to be filed no later than 5.00 pm on 16 March 2025. I will deal with any costs issues on the papers.
Harland J
Solicitors:
Wynn Williams, Christchurch Lee Salmon Long, Auckland.
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