North Canterbury Regional
[2013] NZHC 3196
•2 December 2013
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CIV 2013-409-00980 [2013] NZHC 3196
BETWEEN NORTH CANTERBURY FISH AND GAME COUNCIL
Appellant
ANDCANTERBURY REGIONAL COUNCIL Respondent
CIV 2013-409-000974
BETWEEN HURUNUI WATER PROJECT LIMITED Appellant
ANDCANTERBURY REGIONAL COUNCIL Respondent
CIV 2013-409-000984
BETWEEN THE AMURI IRRIGATION COMPANY Appellant
ANDCANTERBURY REGIONAL COUNCIL Respondent
Hearing: (On Papers) and 2 December 2013 (by telephone) Counsel: E Chapman for Hurunui Water Project Ltd
KGR Reid for Amuri Irrigation Company Limited
M A Baker-Galloway for North Canterbury Fish & Game
Council
PAC Maw for Canterbury Regional Council
P Anderson for Royal Forest and Bird
R Gardner for Federated FarmersF MacKenzie for Irrigation NZ and also appearing on behalf of M J Sleigh for Upper Waiau Independent Irrigators Incorporated
J M Appleyard for Ngai Tahu Property Limited
Judgment: 2 December 2013
NORTH CANTERBURY FISH AND GAME COUNCIL v CANTERBURY REGIONAL COUNCIL [2013] NZHC 3196 [2 December 2013]
JUDGMENT OF WHATA J
[1] This judgment deals with the resolution of all of the appeals in relation to the proposed Hurunui and Waiau River Regional Plan (PHWRRP). I am grateful for the assistance of counsel, particularly counsel for the respondent, for their detailed memorandum outlining the basis of settlement for all of the appeals.
[2] I am satisfied that the appeals should be granted on the consent order basis sought. The amendments sought are set out in Appendices A and B. I set out the narratives of the background, relief and reasons for relief in this judgment for the record. I am satisfied that the consent orders reflect the proper resolution of issues of law raised by various appellants in their respective appeals and that their resolution will better achieve the sustainable management purpose. More specifically, I am satisfied the orders should be made for the following reasons:
(a) The proposed amendments and the expeditious resolution of the appeals is consistent with the purpose and principles of the RMA, including in particular Part 2.
(b)I am satisfied that r 20.19 of the High Court Rules, and s 300-307 (which apply with necessary modification under the provisions of the ECan Act) of the RMA empower me with the necessary jurisdiction to make the orders sought. This is consistent with the approach taken by
Ronald Young J in Re Mackenzie Irrigation Company Limited,1 and
by me in Meridian Energy Ltd v Canterbury Regional Council.2
(c) I am satisfied that the consent orders are within the scope of the appeals.
1 Re Mackenzie Irrigation Company Limited HC Wellington CIV 2005-485-2192, 27 June 2006 and Re Mackenzie Irrigation Company Limited HC Wellington CIV 2005-485-2192, 3 July
2006.
2 Meridian Energy Limited v Canterbury Regional Council HC Christchurch CIV 2010-409-
002604, 23 May 2011.
(d)I am also satisfied, as recorded by counsel, that given the breadth of participation in these appeals, the wider public interest is best served by the consensus achieved.
Appeal Number CIV-2013-409-00984
Procedural Background
[3] Amuri Irrigation Company Limited (AIC) lodged a submission on various aspects of the PHWRRP. The Council’s decision on the PHWRRP was publicly notified on 27 April 2013.
[4] On 20 May 2013, AIC lodged an appeal against the Council’s decision pursuant to section 66 of the Environment Canterbury (Temporary Commissioners and Improved Water Management) Act 2010 (“ECan Act”). The AIC appeal relates to the following matters:
(a) Part 2 of its appeal: Table 1:3 Environmental Flow and Allocation Regime – Lowry Peaks Drain, St Leonards Drain, Hermitage Drain and Mt Palm Drain Minimum Flow Regimes.
(b) Part 3 of its appeal: Cumulative Effects of Land Use on Water Quality
– r 10.1(c).
(c) Part 4 of its appeal: Surface Water – r 5.2 – Prohibited Activities.
(d) Part 5 of its appeal: The Objectives and Policies of the Plan – Existing
Irrigation Activities.
(e) Part 6 of its appeal: Part 3 Surface Water 0 r 2.3 and Table 1 –
Environmental Flow and Allocation Regime.
(f) Part 7 of its appeal: Table 1: Surface Water – Tributary Allocation
Limits.
3 The notice of appeal refers to Part 3 – Table 1, but the correct reference to the allocation table is Part 4 – Table 1.
Abandonment of parts 3, 4, 5, 6 and 7 of the AIC appeal
[5] AIC abandoned parts 3, 4, 5, 6 and 7 of its appeal.
Partial abandonment of part 2 of the AIC appeal
[6] AIC abandoned that part of part 2 of its appeal that relates to the St Leonards
Drain.
Error of law
Part 2 of the appeal – Table 1: Environmental Flow and Allocation Regime – Lowry Peaks Drain, St Leonards Drain, Hermitage Drain and Mt Palm Drain Minimum Flow Regimes
[7] AIC claimed that the decision-makers made an error of law in relation to Table 1: Environmental Flow and Allocation Regime. The alleged error is that the Respondent failed to give effect to its own reasoning in making the decision to amend Table 1, relating to the Environmental Flow and Allocation Regime, so as to include the following minimum flows:
(a) 0.50m3/s for the Lowry Peaks Drain in the Waiau Catchment; and
(b) 0.14m3/s for St Leonards Drain in the Hurunui Catchment; and
(c) The Lowry Peaks Drain minimum flow for the Mt Palm Drain; and
(d) The Lowry Peaks Drain minimum flow for the Hermitage Drain.
[8] As is set out in AIC’s appeal, the St Leonards and Lowry Peaks drains are water courses from which a number of persons are authorised to take and use water for irrigation. Resource consents are held by AIC for taking water from these drains have different minimum flows than those specified in Table 1.
Relief sought
[9] The AIC appeal sought as relief amongst other things, that:
Table 1: Environmental Flow and Allocation Regime be amended so as to delete the minimum flows for the St Leonards Drain, Lowry Peaks Drain, Mt Palm Drain and Hermitage Drain...
[10] AIC also sought such further or other relief as may be appropriate.
Agreed position
[11] AIC and the Canterbury Regional Council (CRC) have completed discussions regarding the potential resolution of AIC’s appeal. Those parties consider that the following amendment to the text in the “Minimum flow for A Permits” column in Table 1 for Lowry Peaks Drain, Mt Palm Drain and Hermitage Drain would address AIC’s concerns and would properly reflect the decision-makers’ reasoning:
The minimum flow continued in conditions of consent as at the date this plan becomes operative shall continue to apply.
Position of other parties
[12] The other parties have similarly agreed to the contents of the memorandum setting out the relief sought.
Orders sought and grounds
[13] Counsel for the appellant and respondent have therefore requested that this Court exercise its power under r 20.19 to amend the text in the “Minimum flow for A Permits” column of Table 1: Environmental Flow and Allocation Regime for Lowry Peaks Drain, Mt Palm Drain and Hermitage Drain as follows:
The minimum flow contained in conditions of consent as at the date this plan becomes operative shall continue to apply
[14] Counsel submit that the Court’s approval of this amendment to Table 1: Environmental Flow and Allocation Regime of the PHWRRP as described above is appropriate in the present circumstances for the following reasons:
(a) The amendment properly reflects the decision-makers’ reasoning in
relation to the minimum flows set out in existing resource consents.
To that extent, the Court has not been requested to determine a dispute on the merits, but to endorse amendments which better reflect the reasoning contained in the decision.
(b)The proposal to settle the AIC appeal by making this amendment represents a just, speedy and inexpensive way to determine this proceeding. In that regard, one of the fundamental purposes of the ECan Act (in particular by dispensing with merits appeals to the Environment Court in favour of appeals to this Court on points of law only) is to enable the PHWRRP to be made operative as soon as possible in order to facilitate better water management of the water resources of the Canterbury region.
(c) The proposed amendment is consistent with the purpose and principles of the RMA, including in particular, Part 2.
(d)Given the narrow scope of the relief jointly requested, it is not necessary for the matter to be remitted back to CRC for determination.
Resolution
[15] I grant the order that the text in the “Minimum flow for A Permits” column of Table 1: Environmental Flow and Allocation Regime of the PHWRRP be amended as set out in Appendix A.
Approach to CIV-2013-409-00980 and CIV-2013-409-00974
[16] These two appeals cover the same ground. Therefore, this judgment will cover the procedural background for each and the relevant alleged errors of law for each and then deal with the relief sought, the position of the parties, the orders sought in relation to each provision of the PHWRRP, and the resolution.
Appeal Number CIV-2013-409-00980 (North Canterbury Fish and Game Council)
Procedural background
[17] The PHWRRP was publicly notified pursuant to cl 5 of the First Schedule of the Resource Management Act 1991 on 1 October 2011. The PHWRRP contains objectives, policies, methods and rules to achieve the management of natural physical resources within the Hurunui and Waiau Catchments in the Canterbury Region.
[18] Fish and Game lodged submissions and further submissions on various aspects of the PHWRRP.
[19] On 17 May 2013, Fish and Game lodged an appeal against the Council’s
decision under s 66 of the ECan Act.
Error of law
[20] The alleged questions of law in Fish and Game’s appeal are:
(a) Whether the Council failed to give effect to the National Policy
Statement for Freshwater Management 2011 (“NPS”) (Question 1);
(b)Whether the Council has erred in undertaking a balancing exercise in respect of water quality provisions which is inconsistent with the requirement to give effect to the NPS (Question 2);
(c) Whether the Council failed to give effect to the Canterbury Regional
Policy Statement (“CRPS”) (Question 3);
(d)Whether the Council has erred in undertaking a balancing exercise in respect of water quality provisions which is inconsistent with the requirement to give effect to the CRPS (Question 4);
(e) Whether the Council has erred in the application of the precautionary approach (Question 5);
(f) Whether the Council erred by failing to satisfy itself that discharges provided for as permitted activities are not likely to give rise to any significant adverse effects as required by section 70(1)(g) of the Resource Management Act 1991 (Question 6); and
(g)Whether the Council came to conclusions on the effects on water quality of the policy and rule framework which on the evidence, it could not reasonably have come (Question 7).
Abandonment of Questions 4 and 7 of the Fish and Game appeal
[21] Fish and Game abandoned Questions 4 and 7 of its appeal.
Parts of appeal not abandoned
[22] The parts of the Fish and Game appeal not abandoned were:
(a) Questions 1, 2, 3 and 5 insofar only as these questions are relevant to the proposed amendment to the wording of Policy 5.4; and
(b)Questions 1, 3, 5 and 6 insofar only as these questions are relevant to the proposed amendment to the wording of rr 2.3, 3.1, 3.2, 7.2, and
10.2.
Appeal Number CIV-2013-409-00974 (HWP)
Procedural Background
[23] The PHWRRP was publicly notified pursuant to cl 5 of the First Schedule of the Resource Management Act 1991 on 1 October 2011.
[24] HWP lodged submissions and further submissions on various aspects of the
PHWRRP.
[25] On 16 May 2013, HWP lodged an appeal against the Council’s decision
under s 66 of the ECan Act.
Error of law
[26] The HWP appeal contains the following alleged questions of law:
Nutrient load limits
(a) Can the Council approve a Policy containing the same key performance criteria as the related rules; and in approving Policy 5.3B did the Council create an activity status that has no prospect of success, in contravention of the Act? (Question 1)
(b)Has the Council, in approving a plan which does not provide an ability for nutrient loads to be allocated pending implementation of resource consents for the storage and reticulation of water, failed to reflect its own decision which recognises a need for water storage; and has this made the Plan internally inconsistent? (Question 2)
(c) Do the provisions relating to nutrient load limits meet the legal test for being certain, or are they void for uncertainty? (Question 3)
(d)Did the Council err in providing a pathway for the grant of resource consents that may not be able to be implemented due to nutrient load limits? (Question 4)
Prohibited activity status for damming the Hurunui mainstem and south branch
(e) Did the Council assess the costs of the proposed prohibited activity rule as required by s 32 of the Act; and was there evidence before the Council to enable it to do so? (Question 5)
(f) Did the Council err in approving a prohibited activity rule which fails to enable consideration of damming on a case by case basis, and which is inconsistent with the reasoning in the Council’s decision? (Question 6)
(g)Did the Council err in determining that damming of Lake Sumner should be prohibited in order to enable compliance with the CRPS? (Question 7)
(h)Did the Council, in concluding that the prohibited activity status for damming of the Hurunui Mainstem and South Branch is in accordance with s 6(a)(b)(c)(d) and (e), exercise a preference to s 6 matters above s 5 which is contrary to the judicial interpretation of Part 2 of the Act? (Question 8)
B and C Block Policies
(i)Has the Council, in approving Policy 3.5, approved a Policy which is inconsistent with other parts of the Plan, in that Policy 3.5 does not implement Objective 3 as required by the Act? (Question 9)
(j)Has the Council, in approving Policy 3.5, erred in exercising a preference to s 6 matters above s 5 which is contrary to judicial interpretation of Part 2 of the Act? (Question 10)
(k)Did the Council err in law by requiring the matters in paragraphs (a)- (l) of Policy 3.5 to be “achieved” in circumstances where some of those matters are not currently being achieved? (Question 11)
(l) Did the Council, in making the decision to approve Policies 6.4 and
6.5 in the form it did, approve policies which meet the legal test of being certain, or are they void for uncertainty? (Question 12)
(m)Did the Council err in law by requiring in Policies 6.4 and 6.5 an applicant to demonstrate that there are no alternatives for water storage in Zones B and C? (Question 13)
Abandonment of Questions 5, 6, 7, 8, 9, 10 and 11 of the HWP appeal
[27] HWP abandoned Questions 5, 6, 7, 8, 9, 10 and 11 of its appeal.
Parts of appeal not abandoned
[28] The parts of the HWP appeal not abandoned were:
(a) Questions 1, 2, 3 and 4: Nutrient Load Limits insofar only as these questions are relevant to the proposed amendments to the wording of Rule 10.2;
(b)Questions 12 and 13: Policies 6.4 and 6.5 requiring opportunities for water storage in Zones B and C not able to proceed.
[29] The matters not abandoned, but which the parties have come to an agreement about, are addressed in the following order in this judgment:
(a) Policy 5.4 – monitoring of effects of increased nutrient discharges on water quality;
(b) Policies 6.4 and 6.5 – water storage in Zones B and C;
(c) Rule 10.2 – permitted activity rule for changes in land use and associated increase in nutrient discharges; and
(d)Rules 2.3, 3.1, 3.2, and 7.2 – clarification regarding rules relating to taking and using water in respect of irrigation takes to ensure that the nutrient limits in Schedule 1 and the nitrogen toxicity limits in Policies 5.3 or 5.3A are not exceeded.
Policy 5.4
Relief sought
[30] The HWP appeal sought as relief in its appeal “relief as available under High
Court Rule 20.19”.
Position of CRC
[31] A number of parties lodged submissions on Policy 5.4. The Council Officers also recommended that changes be made to Policy 5.4 as a result of those submissions.
[32] The decision stated in respect of the amendments made from the notified version of Policy 5.4, that the “amendments to the Policy are considered appropriate to better achieve the Plan’s objectives and the purpose of the RMA, and to provide greater clarity.”
[33] Through the course of the settlement discussions, CRC accepted that further clarification to Policy 5.4, by specifying the monitoring to be undertaken under Policy 5.4, is required in order to better give effect to the NPS and would remove the uncertainty around the monitoring regime required to ensure that Objectives 5.1 and
5.2 are achieved.
[34] In particular, it is proposed that wording be added to Policy 5.4 to require the implementation of a State of the Environment monitoring programme with minimum requirements as to what instream parameters will be monitored in order to ensure that Objectives 5.1 and 5.2 will be met. The additional wording is said to provide greater clarity as to how Objectives 5.1 and 5.2 will be met. The proposed amendment to Policy 5.4 requires monitoring to:
i.Assess the correlation between total catchment load (if known) of Dissolved Inorganic Nitrogen and Dissolved Reactive Phosphorus, and instream concentrations;
ii.Assess corresponding effects of instream concentrations on matters set out in Objective 5.1 and 5.2;
iii.Review revised projections of instream concentrations and instream effects resulting from full allocation up to the Schedule 1, Policy 5.3 and Policy 5.3A limits.
[35] The amendments to the Policy are also said to clarify when the reviews are to be undertaken in respect of the Hurunui River and the Waiau River.
Agreed position
[36] The parties submit that the following amendments to the text in Policy 5.4, along with the other changes proposed below to the rules, would address Fish and Game’s concerns and better give effect to the NPS and CRPS, including the precautionary principle in the context of the decision on the PHWRRP. The parties also submitted that these amendments have the effect of removing uncertainty around how Policy 5.4 will implement Objectives 5.1 and 5.2, and reflect the reasoning contained in the decision. The proposed new text is shown underlined, deleted text in strikethrough:
Policy 5.4 To progressively review, and revise by way of plan change if necessary and appropriate, the Policy 5.3,
andPolicy 5.3A and Schedule 1 water quality limits for the Hurunui and Waiau Rivers and their tributaries to ensure that objective 5.1 and 5.2 are met, by:
(a) Implementing a State of the Environment monitoring programme that includes, as a minimum, regular monitoring of instream Dissolved Inorganic Nitrogen (concentration and load), Dissolved Reactive Phosphorus (concentration and load), E. Coli, nitrate- nitrogen, Periphyton, Total Nitrogen, Total Phosphorus and Quality Macro-Invertebrate Community; and
(b) At the stages set out in (c) below, review the following:
(i) Correlation between total catchment load (if known) of Dissolved Inorganic Nitrogen and Dissolved Reactive Phosphorus, and instream concentrations;
(ii) Corresponding effects of instream concentrations on matters set out in objective 5.1 and 5.2;
(iii) Revised projections of instream concentrations and instream effects resulting from full allocation up to the Schedule 1, Policy 5.3 and Policy 5.3A limits.
(c) The reviews will be undertaken at the following stages;
(i) For the Hurunui River, the reviews shall be undertaken with reference to the Schedule 1 limit for Dissolved Inorganic Nitrogen at the State Highway One flow recorder, in 10% increments from the 2005-2011 average annual load starting point;
(ii) For the Waiau River, the reviews shall be undertaken every 5 years.
[37] The HWP appeal sought as relief, amongst other things, that:
To revise or delete Policies 6.4 and 6.5 and remove the reference to requiring demonstration that the other options referred to are not able to proceed.
Either remove the reference to “not able to proceed” or amend the term to
reflect RMA principles...
[38] HWP also sought such further or other relief as may be appropriate.
Position of CRC
[39] In the context of discussions with the parties, CRC has now accepted that the words “not able to proceed” are uncertain and that deletion of that phrase and replacement with “will not achieve the objectives of the Plan” would provide greater certainty. Such a change, it is submitted, is also consistent with the decision in that the priority order as between Infrastructure Development Zone B and Zone C is maintained.
Agreed position
[40] The parties submitted that the following amendment to the text in the Policies
6.4 and 6.5 would address HWP’s concerns, provide greater certainty, and better achieve the purpose of the Act:
i.Deletion of the words “are not able to proceed” in Policy 6.4(b), Policy 6.5(a)(ii)(i) and Policy 6.5(a)(ii)(ii) as shown in Appendix A; and
ii.Insertion of the words “will not achieve the objectives of the Plan” in place of the words “are not able to proceed” in Policy 6.4(b), Policy
6.5(a)(ii)(i) and Policy 6.5(a)(ii)(ii) as shown in Appendix A.
[41] HWP sought, amongst other things, as relief in its appeal that the provisions of the PHWRRP be amended to:
(a) Require CRC to provide an allocative mechanism for the available nutrient load; and
(b)Specify a mechanism for either individual farmers or farmers collectively to determine when a consent is required or for the PHWRRP to set out a methodology so as to provide certainty of the available load.
[42] HWP also sought such further or other relief as may be appropriate.
[43] The Fish and Game appeal sought as relief in its appeal “relief as available under High Court Rule 20.19”.
Position of CRC
[44] A range of amendments were made to r 10.2 as a result of the independent
Commissioners’ recommendations on the PHWRRP.
[45] The Council’s decision found that under the amended rule, land use change could only occur as a permitted activity if the Schedule 1 load limits are not exceeded.4 However, CRC’s position was that the rule as amended failed to provide a mechanism to enable the taking into account of nutrient allocations made under resource consents. In order to ensure that the Schedule 1 load limits are not
exceeded, allocations made under resource consents need to be accounted for.
4 See Hearing Commissioner Recommendation to the Proposed Hurunui and Waiau River Regional Plan and Proposed Plan Change 3 to the Canterbury Natural Resources Regional Plan, at [171].
[46] CRC now accepts that the further amendments to the rule, which have been reached as a result of discussions with the parties in the context of these appeals are appropriate as they clarify the intent of the rule and provide greater certainty as to the workability of the rule. Counsel submitted that the changes to r 10.2 are consistent with the reasoning in the decision, and address the uncertainty in the decision’s version of r 10.2.
Agreed position
[47] The parties submitted that the following amendments to r 10.2 would address HWP’s and Fish and Game’s concerns (proposed new text underlined, deleted text shown in strikethrough):
Rule 10.2 Any change in land use (refer Part 5 – Definitions), in the Nutrient Management Area shown on Map 4, is a permitted activity, provided that:
(aa) conditions (b), (c) and (d) of Rule 10.1 are met; and
(a) for changes in land use in the Hurunui catchment above SH 1, the dissolved inorganic nitrogen and dissolved reactive phosphorus load limits specified in Schedule 1 are not exceeded, taking into account limits specified in resource consents; and
(ba) a water permit has been granted that authorises irrigation on the land and includes conditions that:
(i) specify the maximum annual amount of nitrate-nitrogen that may be leached;
(ii) specify measures to minimise the loss of phosphorus; and
(iii) the land is subject to;
(i) an Industry Certification System; or
(ii) a Catchment Agreement; or
(iii) an Irrigation Scheme Management Plan; or
(iv) a Lifestyle Block Management Plan.
Or as an alternative to complying with (ba):
(b) on or before 1 January 2017 the land is not irrigated with water but is subject to:
(iv) an Industry Certification System; or
(v) a Catchment Agreement; or
(vi) an Irrigation Scheme Management Plan; or
(vii) a Lifestyle Block Management Plan.
Rules 2.3, 3.1, 3.2, and 7.2
Relief sought
[48] The Fish and Game appeal sought as relief in its appeal “relief as available under High Court Rule 20.19”.
Position of CRC
[49] CRC accepts that the addition of two criteria to each of rr 2.3, 3.1, 3.2 and
7.2, which have been reached as a result of discussions with the parties in the context of these appeals, are justified as they further clarify the intent of the rule and remove the internal inconsistency between the water permit rules and the land use rules.
[50] In particular, the changes requested clarify that both variations and renewals of existing water permits for irrigation takes (which will facilitate a change in land use) and new takes (in combination with all other activities) will not lead to an exceedance of the nutrient limits in Schedule 1 (taking into account limits specified in resource consents) or the nitrogen toxicity limits in Policies 5.3 and Policy 5.3A.
Agreed position
[51] The parties submit that the following addition to the text of rr 2.3, 3.1, 3.2 and 7.2 (and as shown in Appendix A), would address Fish and Game’s concerns and better give effect to the NPS and CRPS, including the precautionary principle in the context of the decision on the PHWRRP (proposed new text shown underlined):
That are variations or renewals of existing water permits, and where the water will be used for a Change of land use, the use of that water in combination with all other activities will not lead to an exceedance of the nutrient limits in Schedule 1 (taking into account limits specified in resource consents) or the nitrogen toxicity limits in Policies 5.3 and 5.3A.
That are not variations or renewals of existing water permits, the use of that water in combination with all other activities will not lead to an exceedance
of the nutrient limits in Schedule 1 (taking into account limits specified in resource consents) or the nitrogen toxicity limits in Policies 5.3 and 5.3A.
Orders sought and grounds
[52] Counsel for the appellants and respondent therefore requested that the Court exercises its power under r 20.19 to amend the text of the PHWRRP.
[53] Counsel submitted that the Court’s approval of these amendments to the PHWRRP as described above is appropriate in the present circumstances for the following reasons:
(a) The amendments properly reflect the decision-makers’ reasoning. To that extent, the Court has not been requested to determine a dispute on the merits, but to endorse amendments that better reflect the reasoning contained in the decision.
(b)The amendments provide greater clarity, and remove uncertainty in respect of Policies 5.4, 6.4, and 6.5, and r 10.2.
(c) The amendments to rr 2.3, 3.1, 3.2 and 7.2 remove internal inconsistency in the PHWRRP as between the rules relating to change in land use and the rules relating to water permits that may be used to facilitate a change in land use.
(d) The consent orders sought are within the scope of the appeals.
(e) The proposal to settle the HWP and Fish and Game appeals by making these amendments represents a just, speedy and inexpensive way to determine this proceeding. In that regard, one of the fundamental purposes of the ECan Act (in particular by dispensing with merits appeals to the Environment Court in favour of appeals to this Court on points of law only) is to enable the PHWRRP to be made operative as soon as possible in order to facilitate better water management of the water resources of the Canterbury region.
(f) Agreement has been reached on the resolution by a large number of parties, representing a broad cross-section of the community.
(g)The proposed amendments are consistent with the purpose and principles of the RMA, including in particular, Part 2.
(h)Given the narrow scope of the relief jointly requested, it is not necessary for the matter to be remitted back to CRC for determination.
Resolution
[54] The policy and rules as amended provide greater clarity. I nevertheless engaged with the parties in relation to the amendments at r 10.2 as it appeared to potentially affect a class of land user not represented in the appeals, namely persons who are not part of an irrigation scheme or hold existing consents. The effect of the amendment is to require that existing consented discharges (whether active or not) to form part of the existing environment against which future activity might be assessed in terms of the limits specified at Schedule 1. This will afford de facto priority to those discharges. Nevertheless, counsel were able to satisfy me that to the extent that any affected person might be interested they have had sufficient opportunity to be heard, and furthermore, Federated Farmers is representative of a range of farming interests and supports the changes. Accordingly, the orders sought by consent are granted.
Final orders
[55] I grant the order that the PHWRRP be amended as set out in Appendices A
and B.
Solicitors:
Duncan Cotterill, Christchurch
Wilding Law, Christchurch
Anderson Lloyd, ChristchurchWynn Williams, Christchurch
Chapman Tripp, Christchurch
Goodman Tavendale Reid, Christchurch
APPENDIX A
Amend the text in the “Minimum flow for A Permits” column of Table 1: Environmental Flow and Allocation Regime of the Proposed Hurunui and Waiau Rivers Regional Plan in respect of Lowry Peaks Drain, Mt Palm Drain and Hermitage Drain, as follows (new text underlined, deleted text shown in strikethrough):
River or Stream (see Map 1 Minimum flow for A permits
Lowry Peaks Drain
0.5
The minimum flow contained in conditions of consent as at the date this plan becomes operative shall continue to
apply
Mt Palm Drain
Must comply with the Lowry PeaksMinimum Flow and leave a residual flowof 30 L/s in the stream where the take is
occurringThe minimum flow contained in conditions of consent as at the date this plan becomes operative shall continue to
apply
Hermitage Drain
Must comply with the Lowry PeaksDrain Minimum Flow and leave aresidual flow of 30 L/s in the stream
where the take is occurringThe minimum flow contained in conditions of consent as at the date this plan becomes operative shall continue to apply
"Appendix A – Amendments to PHWRRP"
1.Single underline – additions to decision version of PHWRRP following settlement discussions.
2.
Strikethrough– deletions to decision version of PHWRRP following settlement discussions.
Policy 5.4 To progressively review, and revise by way of plan change if necessary and appropriate,
the Policy 5.3,
andPolicy 5.3A and Schedule 1 water quality limits for the Hurunui and Waiau Rivers and their tributaries to ensure that objective 5.1 and 5.2 are met, by:
(a) Implementing a State of the Environment monitoring programme that includes, as a minimum, regular monitoring of instream Dissolved Inorganic Nitrogen (concentration and load), Dissolved Reactive Phosphorus (concentration and load), E. coli, nitrate-nitrogen, Periphyton, Total Nitrogen, Total Phosphorus and Quality Macro-Invertebrate Community; and
(b) At the stages set out in (c) below, review the following:
(i) Correlation between total catchment load (if known) of Dissolved Inorganic Nitrogen and Dissolved Reactive Phosphorus, and instream concentrations;
(ii) Corresponding effects of instream concentrations on matters set out in
objective 5.1 and 5.2,
(iii) Revised projections of instream concentrations and instream effects
resulting from full allocation up to the Schedule 1, policy 5.3 and policy
5.3A limits.
(c) The reviews will be undertaken at the following stages:
(i) For the Hurunui River, the reviews shall be undertaken with reference to the Schedule 1 limit for Dissolved Inorganic Nitrogen at the State Highway One flow recorder, in 10% increments from the 2005-2011 average annual load starting point;
(ii) For the Waiau River, the reviews shall be undertaken every 5 years.
Policy 6.4 Notwithstanding Policy 6.3, to avoid the damming of water in Zone B ‘Areas not
identified as High Value or Infrastructure Development’ on Map 3 until:
(a) until 2 years after this plan is notified; and,
(b) it can be demonstrated that opportunities for water storage in Zone C
‘Infrastructure Development’
arenot able to proceedwill not achieve theobjectives of the Plan.
Policy 6.5 To require any proposal utilising water from the Hurunui, Waiau and Jed river catchments to:
(a) demonstrate how it will allow for a larger area of land to be irrigated;
(ab) where the proposal involves the provision of water storage for irrigation purposes, demonstrate how it recognises and provides for the following priority order of storage locations:
(i) for proposals using water from the Waiau River, the middle reaches of the Waiau River in the Emu or Amuri Plains;
(ii) for proposals using water from the Hurunui River:
i. the Waitohi River as a first option, or if this
is arenot able toproceedwill not achieve the objectives of the Plan;
ii. in other tributaries of the Hurunui River located in Zone C in Map 3, or if these
arenot able to proceedwill not achieve the objectives of the Plan;iii. in the other tributaries of the Hurunui River in Zone B. (b) assist in achieving the objectives of this Plan; and,
(c) maximise the economic and social benefits of water abstraction, including utilising water for multiple out of stream uses.
Rule 10.2
Rule 10.2 Any change in land use (refer Part 5 – Definitions), in the Nutrient Management
Area shown on Map 4, is a permitted activity, provided that:
(aa) conditions (b), (c) and (d) of Rule 10.1 are met; and
(a) for changes in land use in the Hurunui catchment above SH 1, the dissolved inorganic nitrogen and dissolved reactive phosphorus load limits specified in Schedule 1 are not exceeded, taking into account limits specified in resource consents; and
(ba) a water permit has been granted that authorises irrigation on the land and includes conditions that:
(i) specify the maximum annual amount of nitrate-nitrogen that may be leached;
(ii) specify measures to minimise the loss of phosphorus; and
(iii) the land is subject to:
(i) an Industry Certification System; or (ii) a Catchment Agreement; or
(iii) an Irrigation Scheme Management Plan; or
(iv) a Lifestyle Block Management Plan. Or as an alternative to complying with (ba):
(b) on or before 1 January 2017 the land is not irrigated with water but is subject to:
(i) an Industry Certification System; or
(ii) a Catchment Agreement; or
(iii) an Irrigation Scheme Management Plan; or
(iv) a Lifestyle Block Management Plan.
Rule2.3 The taking, diverting, discharge and use of surface water in accordance with the Environmental Flow and Allocation Regime in Table 1 (excluding the C permit allocation) for the Waiau and Hurunui Rivers, is a restricted discretionary activity, provided it complies with the following standards and terms:
For all activities:
(a) the maximum rate of take, in addition to all existing resource consented takes, including expired resource consents continuing to be operated under section 124 of the Resource Management Act, does not exceed the permit allocation limit in the Environmental Flow and Allocation Regime in Table
1 for that surface water body;
(b) for the Waiau River, when this water is allocated from the B permit allocation limit for irrigation, at least 6m3/s shall be taken and used downstream of Stanton River;
(c) the take complies with the minimum flow for the relevant permit allocation limit for the surface water body as set out in the Environmental Flow and
Allocation Regime in Table 1, except as otherwise provided for under
Policy 2.10;
(e) the point of take occurs downstream of:
(i) the confluence of the Hope River with the Waiau River mainstem in the Waiau Catchment; or
(ii) the confluence of the Hurunui River Mainstem and Surveyors Stream in the Hurunui Catchment;
(f) fish shall be prevented from entering the water intake, as set out in Schedule WQN12 of the Natural Resources Regional Plan as contained in Schedule 4 of this Plan; and,
(g) an Infrastructure Development Plan is submitted with any application to take a maximum rate exceeding 100 litres per second.
In addition, for irrigation takes:
(h) The annual volume applied for, provides an 80% or greater application efficiency and reasonable water use in 9 out of 10 years.
(i) That are variations or renewals of existing water permits, and where the water will be used for a Change of land use, the use of that water in combination with all other activities will not lead to an exceedance of the nutrient limits in Schedule 1 (taking into account limits specified in resource consents) or the nitrogen toxicity limits in Policies 5.3 and 5.3A.
(j) That are not variations or renewals of existing water permits, the use of that water in combination with all other activities will not lead to an exceedance of the nutrient limits in Schedule 1 (taking into account limits specified in resource consents) or the nitrogen toxicity limits in Policies 5.3 and 5.3A.
The Canterbury Regional Council will restrict the exercise of its discretion, to the following matters:
(i) the extent to which the proposal addresses Policy 6.5;
(ii) any effects on water quality, including whether the activity in combination with all other activities will result in the nutrient limits in Schedule 1, or the nitrogen toxicity limits in Policies 5.3 and 5.3A being exceeded;
(iii) the reasonable need for the quantities of water sought, the intended use of the water, and the ability of the applicant to abstract and apply those quantities, including whether storage of water is proposed having regard to Policy 8.1;
(iv) the availability and practicality of using alternative supplies of water; (v) the technical efficiency of the take and use, having regard to Policy 8.1;
(vi) the effects the take or diversion has on any other authorised takes or diversions;
(vii) the reduction in the rate of take in times of low flow, having regard to
Policies 2.3 and 2.4;
(viii) the need for and provision of any additional restrictions to prevent the flow from reducing to zero;
(ix) the collection, recording, monitoring and provision of information concerning the exercise of the resource consent having regard to Policy 8.1;
(x) Flow variability, having regard to Policy 2.5; and
(xi) Consent duration, having regard to Policies 9.1 and 9.2.
Note: If the take or diversion is from a wetland it must also comply with Rule WTL2 in the Natural Resources Regional Plan and/or the relevant rule(s) for wetlands in the Land and Water Regional Plan, or consent will also be required under the relevant plan(s).
Rule 3.1The taking, diverting, discharge and use of water, from the C permit allocation in the Environmental Flow and Allocation Regime in Table 1, in for the Waiau River Catchment, is a discretionary activity provided it complies with the following
standards and terms:
(a) the take occurs downstream of the Marble Point Flow Recorder;
(b) the discharge, or return, of water used for a non-consumptive activity shall be upstream of the confluence of the Stanton River;
(c) the take complies with the minimum flow for the surface water body as set out in the Environmental Flow and Allocation Regime in Table 1;
(d) the maximum rate of take, in addition to all existing resource consented takes, including expired resource consents continuing to be operated under section 124 of the Resource Management Act, does not exceed the relevant permit allocation limit in the Environmental Flow and Allocation Regime in Table 1 for that surface water body. The maximum rate of take shall be calculated as the amount allocated and available to be used by all existing consented takes on any day and at any point in the river, (and excludes
‘double counting’ of water allocated to two or more consents, where the
shared water is not able to be used at the same time);
(e) fish are prevented from entering the water intake, as set out in Schedule WQN12 of the Natural Resources Regional Plan as contained in Schedule 4 of this Plan;
(f) a study has been undertaken (by suitably qualified and experienced experts) and included with the application showing how Objective 3 and Policy 3.5 will be given effect to;
(g) a study has been undertaken showing how the proposed take will affect the mauri of the Waiau River and how Policy 2.6 will be given effect to; and,
(h) an Infrastructure Development Plan is submitted with the application.
In addition, for irrigation takes:
(i) That are variations or renewals of existing water permits, and where the water will be used for a Change of land use, the use of that water in combination with all other activities will not lead to an exceedance of the nutrient limits in Schedule 1 (taking into account limits specified in resource consents) or the nitrogen toxicity limits in Policies 5.3 and 5.3A.
(j) That are not variations or renewals of existing water permits, the use of that water in combination with all other activities will not lead to an exceedance of the nutrient limits in Schedule 1 (taking into account limits specified in resource consents) or the nitrogen toxicity limits in Policies 5.3 and 5.3A.
Rule 3.2The taking, diverting, discharge and use of water, from the C permit allocation in the Environmental Flow and Allocation Regime in Table 1, in the Hurunui River Catchment, is a discretionary activity provided it complies with the following standards and terms:
(a) the take occurs downstream of the confluence of Surveyors Stream and the
Hurunui River;
(d) the discharge, or return, of water used for a non-consumptive activity shall be upstream of the confluence of the Pahau River;
(e) the take complies with the minimum flow for the surface water body as set out in the Environmental Flow and Allocation Regime in Table 1;
(c) the maximum rate of take, in addition to all existing resource consented takes, including expired resource consents continuing to be operated under section 124 of the Resource Management Act, does not exceed the relevant permit allocation limit in the Environmental Flow and Allocation Regime in Table 1 for that surface water body. The maximum rate of take shall be calculated as the amount allocated and available to be used by all existing consented takes on any day and at any point in the river, (and excludes
‘double counting’ of water allocated to two or more consents, where the
shared water is not able to be used at the same time);
(f) fish are prevented from entering the water intake, as set out in Schedule
WQN12 of the Natural Resources Regional Plan as contained in Schedule 4 of this Plan;
(g) a study has been undertaken (by suitably qualified and experienced experts) and included with the application showing how Objective 3 and Policy 3.5 will be given effect to;
(h) a study has been undertaken showing how the proposed take will affect the mauri of the Hurunui River and how Policy 2.6 will be given effect to; and,
(i) an Infrastructure Development Plan is submitted with the application.
In addition, for irrigation takes:
(j) That are variations or renewals of existing water permits, and where the water will be used for a Change of land use, the use of that water in combination with all other activities will not lead to an exceedance of the nutrient limits in Schedule 1 (taking into account limits specified in resource consents) or the nitrogen toxicity limits in Policies 5.3 and 5.3A.
(k) That are not variations or renewals of existing water permits, the use of that water in combination with all other activities will not lead to an exceedance of the nutrient limits in Schedule 1 (taking into account limits specified in resource consents) or the nitrogen toxicity limits in Policies 5.3 and 5.3A.
Rule 7.2The taking and using of groundwater from any Groundwater Allocation Zone on Map 2, is a restricted discretionary activity provided it complies with the following standards and terms:
(a) the maximum annual volume of take, in addition to all existing resource consented takes, including expired resource consents continuing to be operated under section 124 of the Resource Management Act, does not exceed the Allocation Limit specified in Policy 4.1 for the Groundwater Allocation Zone within the zones in Map 2 unless the activity undertaken relates to the dewatering of sites for excavation and construction or geotechnical testing or maintaining, repairing or replacing existing infrastructure;
(b) the bore shall not be within 50m of any wetland; (c) if the groundwater take is:
(i) less than 30m below ground level located within the River Zone on Map 2 and is managed as a direct degree of hydraulic connection, as defined in Schedule WQN7 of the Natural Resources Regional Plan (as contained in Schedule 4 of this Plan), it shall comply with the
Environmental Flow and Allocation Regime in Table 1;
(ii) more than 30m deep or located outside the River Zone on Map 2 and has a direct, high or moderate degree of hydraulic connection to surface water, as defined in Schedule WQN7 of the Natural Resources Regional Plan (as contained in Schedule 4 of this Plan), the take is managed as set out in that Schedule and shall comply with the Environmental Flow and Allocation Regime in Table 1.
(d) where the take is for irrigation the annual volume applied for provides for
80% or greater efficiency of application and the reasonable volume required for the intended land use for a reliability of not greater than 9 out of 10 years; and,
(e) an Infrastructure Development Plan is submitted with any application to take a maximum rate exceeding 100 litres per second.
In addition, for irrigation takes:
(f) That are variations or renewals of existing water permits, and where the water will be used for a Change of land use, the use of that water in combination with all other activities will not lead to an exceedance of the nutrient limits in Schedule 1 (taking into account limits specified in
resource consents) or the nitrogen toxicity limits in Policies 5.3 and 5.3A.
(g) That are not variations or renewals of existing water permits, the use of that water in combination with all other activities will not lead to an exceedance of the nutrient limits in Schedule 1 (taking into account limits specified in resource consents) or the nitrogen toxicity limits in Policies 5.3 and 5.3A.
The Canterbury Regional Council will restrict the exercise of its discretion to the following matters:
(i) the extent to which the proposal addresses Policy 6.5;
(ii) any effects on water quality, including whether the activity in combination with all other activities will result in the nutrient limits in Schedule 1, or the nitrogen toxicity limits in Policies 5.3 and 5.3A being exceeded;
(iii) any effects on the natural heat energy of the water, where the groundwater is of geothermal origin having regard to Policy 4.5;
(iv) the reasonable need for the quantities of water sought, the intended use of the water, and the ability of the applicant to abstract and apply those quantities, including whether storage of water is proposed having regard to Policy 8.1;
(i) the availability and practicality of using alternative supplies of water; (ii) the technical efficiency of the take and use, having regard to Policy 8.1;
(iii) the effects the take or diversion has on any other lawfully established takes or diversions;
(iv) the reduction in the rate of take in times of low flow having regard to Policies
2.3 and 2.4;
(v) interference effects between bores having regard to Policy 4.3;
(vi) the collection, recording, monitoring and provision of information concerning the exercise of the resource consent having regard to Policy 8.1; and
(vii) consent duration, having regard to Policies 9.1 and 9.2.
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