NZ Southern Rivers Society Inc v Gore District Council
[2020] NZHC 1996
•7 August 2020
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE
CIV-2020-425-1
[2020] NZHC 1996
UNDER the Judicial Review Procedure Act 2016 IN THE MATTER
of an application for judicial review of a decision under the Resource Management Act 1991
BETWEEN
NZ SOUTHERN RIVERS SOCIETY INCORPORATED
Applicant
AND
GORE DISTRICT COUNCIL
First Respondent
AND
PHILLIP RAYMOND JOOSTENS
Second Respondent
Hearing: 28 July 2020 Appearances:
P A Steven QC and M R Walker for Applicant
M R Garbett and G R Cassidy for First Respondent No appearance for Second Respondent
Judgment:
7 August 2020
JUDGMENT OF OSBORNE J
This judgment was delivered by me on 7 August 2020 at 4.30 pm pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
NZ SOUTHERN RIVERS SOCIETY INCORPORATED v GORE DISTRICT COUNCIL [2020] NZHC 1996 [7
August 2020]
Introduction
[1] In March 2019 the second respondent, Phillip Joostens, applied to the Gore District Council (the Council) for land use consent to establish a river rafting tourism activity on the Mataura River (the Mataura) (the Proposal). The Council, through an Independent Commissioner Andrew Henderson (the Commissioner), granted consent non-notified on 10 October 2019 (the Decision). The NZ Southern Rivers Society Inc (the Society) in this proceeding challenges the Decision. The Society says the Decision involved three errors, each of which rendered invalid the non-notification decision and consequentially the substantive decision itself.
[2]Mr Joostens, although served with the proceeding, has taken no step in it.
[3] The Council defends the application, denying that there was any error in the Decision.
The Mataura
The Water Conservation Order
[4] The Mataura is located in the Gore and Southland Districts. It is the subject of the Water Conservation (Mataura River) Order 1997 (the Water Conservation Order).
[5] The Water Conservation Order declares the protected waters to include outstanding fisheries and angling amenity features.1
[6] Protection is achieved through provisions in the Water Conservation Order, being:
(a)cl 4 — setting minimum rates of flow;
(b)cl 5 — preventing water permits and discharge permits from being granted if they were to contravene the Water Conservation Order;
1 Clause 3.
(c)cl 6 — preventing damming; and
(d)cl 7 — preventing the grant of discharge permits if the discharge would breach identified standards (except in emergency and like situations).
[7] The Water Conservation Order addresses neither what other uses may be made of the Mataura nor what land use consents may be issued in relation to the Mataura.
Significance of the Mataura
[8] The Society’s Chair, Donald Wallace, has described the Mataura (and Oreti) Rivers thus:
By world standards, these rivers offer arguably the finest dry-fly fishing for wild brown trout. Both rivers are iconic and thus part of the New Zealand national brand. Poor management of them threatens not just local amenity but our international reputation and brand.
Factual background
The need for resource consent
[9] The sections of the Mataura subject to Mr Joostens’ application are located within the Rural Zone of the Gore District.2 Three excursions proposed by Mr Joostens are located wholly or partly within the “Mataura River Floodway” overlay associated with the River corridor. Commercial recreational activity is not listed as a permitted activity in the Rural Zone. Consequently, under r 4.2.4 of the Council’s District Plan, the activity is a discretionary activity.
Southland Fish and Game Council
[10] The New Zealand Fish and Game Council is established under the Conservation Act 1987 to represent nationally the interests of anglers and hunters, including in relation to the maintenance of sports fish and game.3
2 Mr Joostens’ application to the Gore District Council was concurrent with a separate application to the Southland District Council as his proposed activity crossed over between the Gore and Southland Districts. Three out of six excursion options which were proposed are located wholly or partly within the Gore District, those being the subject of the Decision under review.
3 Section 26B.
[11] The Southland Fish and Game Council (Fish and Game) is established under s 26P of the Conservation Act. It is established for the purposes of the management, maintenance and enhancement of sports fish and game for the Southland region.
[12] In February 2019, Fish and Game’s consent to Mr Joostens’ application was sought on the basis that Fish and Game is an affected party. Fish and Game resolved to support in principle Mr Joostens’ application with the exclusion of aspects which are not the subject of this judicial review. The three proposed excursions within the Gore District which Fish and Game approved were denoted “Excursion 2”, “Excursion 3” and “Excursion 4 (part of)”.4
[13] Fish and Game’s written confirmation of its position was provided by Mr Joostens to the Council in support of his application.
[14] Mr Joostens also obtained the written approval of Te Ao Mārama Inc, Te Rūnanga o Ngāi Tahu, Land Information New Zealand and Environment Southland.
The application
[15] Mr Joostens’ application for resource consent was lodged by Landpro Ltd with the Council on 22 March 2019. A concurrent application (for the same activities on other sections of the Mataura) was lodged with the Southland District Council.
[16]The excursions proposed for the Gore District were:
(a)Excursion 2 — Mataura River from Otamita Road or Monaghan Road (Croydon) to either the Woolwich Street, Gore exit or 500 m south of the Gore Bridge exit. These were to be half day trips for a maximum of three rafts on two trips per day on five days per week.
(b)Excursion 3 — Mataura River from River Road (approximately 2.5 km below the Gore wastewater treatment ponds) to Selbourne Street,
4 See below at [16]. The reference to “part of” arose through that excursion being partly within the Gore District and partly within the Southland District.
Mataura. These were to be ‘Guide optional’ trips for a maximum of one raft on three trips per day on five days per week.
(c)Excursion 4 (part of) — Mataura River from Mataura to Wyndham, spanning both Gore District and Southland District, with two campsites within the Southland District. The other part of Excursion 4 (also on the Mataura) falls within the Southland District.
[17]The Council requested and obtained further information from Landpro.
[18] Between 22 August and 28 September 2019, a number of members of the public sent emails to the (Gore District) Council and to the Southland District Council. The emails contained expressions of opposition to Mr Joostens’ application and requested or demanded public notification. Some emails related to the behaviour of brown trout and some attached articles or papers on that subject.
[19] On 25 September 2019, Fish and Game emailed confirmation that it had given its written approval to a number of excursions including Excursions 2, 3 and 4 (part of).
Decision on public participation
[20] There was previously under the Resource Management Act 1991 (the Act) a presumption that a consent authority must publicly notify a resource consent application as accurately summarised in Brookers Resource Management:5
Prior to the [Resource Management Amendment Act 2009], the general policy of the Act was that the consent process is to be public and participatory, to ensure that the consent authority is adequately informed of the issues relevant to the substantive decision to be made on an application. There is no longer a statutory presumption in favour of public participation, and previous case law should be treated with caution to the extent that it relies on this presumption. Nevertheless, it remains the case that consent authorities should take care that they are adequately informed before they remove a participatory right of persons who may assert an interest in the effect of the proposed activity on the environment generally or on themselves in particular …
[21]The law changed with the Resource Management Amendment Act 2009.
5 Brookers Resource Management (online looseleaf ed, Thompson Reuters) at [A95A.02(1)].
[22] Under s 95A of the Act a consent authority must follow the steps set out in that section to determine whether to publicly notify an application for a resource consent. The second criterion at step 3 (these being the criteria for public notification) is that “the Consent Authority decides, in accordance with s 95D, that the activity will have or is likely to have adverse effects on the environment that are more than minor”.6
[23] Section 95D of the Act identifies matters which variously must be or may be disregarded by the consent authority which is deciding whether an activity will have or is likely to have adverse effects on the environment that are more than minor. A particular requirement under s 95D(e) is that such a consent authority “must disregard any effect on a person who has given written approval to the relevant application”.
The Decision
Substantive decision
[24] On 10 October 2019, the Council issued the Decision, granting (without notification) resource consent for Excursions 2 and 3 and that portion of Excursion 4 which is to occur within the Gore District.7
Decision as to whether the application required public notification
[25] In the Decision, the Council directly addressed the extent of adverse effects on the environment and whether any persons could reasonably claim to be affected by the Proposal to the extent that it required their written approval or notification.8 The Council found that (apart from those persons who had given their approval) no persons could reasonably claim to be affected by the Proposal to the extent that required their approval or notification.9
6 Section 95A(8)(b).
7 Hearings Commissioner Decision on Land Use Consent (Gore District Council, LU2019/420, 10 October 2019) [Decision]. The Decision, as issued, was unpaginated and without paragraph numbers. For the purposes of the hearing I had page numbers inserted in the copy of the Decision on the High Court file. Those page numbers are adopted in this judgment.
8 At 19.
9 At 19.
The Society’s claim
[26]The Society claims that the Decision contains three errors.
First error — status of Fish and Game’s written approval
[27] The Society claims that the Council treated the written approval of Fish and Game as representing the interests and views of the angling community on the Proposal and amounted to an approval of that community in relation to the adverse effects on recreational amenity of the anglers.
[28] The Society claims that as a result the Council did not consider all relevant potential adverse effects of the Proposal for notification purposes. The Society identified three particulars of this alleged error.
(a)Regional Fish and Game Councils do not hold an unfettered statutory power or obligation to represent licensed anglers in relation to all potential effects of a proposal for which a resource consent is sought under the RMA, particularly in relation to effects on recreational amenity;
(b)As a matter of fact, the written approval provided by [Fish and Game] to the Proposal did not purport to provide approval on behalf of the angling community in relation to the effects on their angling experience and amenity on the Mataura River, as they perceived that to be, and nor could it purport to do so;
(c)Before the Council made its decision on notification, it had received numerous emails from members of the angling community who considered that the Proposal would have significant adverse effects on their experience and enjoyment of angling on the Mataura River, the effect of which negated any perception that the [Fish and Game] written approval was given on behalf of the angling community in relation to effects of the Proposal on their angling amenity/recreational experience on the river.
Second error — failure to take account of relevant considerations
[29] The Society claims that the Council misdirected itself (in the decision to process the application on a non-notify basis) by failing to take into account relevant matters for the purposes of s 95A of the Act. The Society claims that there were three such relevant matters:
(a)A proper understanding of the actual angling activities associated with the Mataura River and the recreation and amenity effects on anglers of the Proposal;
(b)The behaviour of brown trout within the river as a result of granting consent to the Proposal and the impact this would have on the experience of anglers;
(c)The extent to which the Mataura River is enjoyed by anglers from around the country, and international visitors, and its recognition within the terms of the Order, which provisions require the angling amenity features to be protected and preserved.
Third error — failure to be sufficiently informed
[30] The Society claims that the Council had no evidence and was not sufficiently and relevantly informed as to two sets of matters:
(a)the potential adverse effects on recreation and amenity values of anglers and the extent to which their enjoyment will be degraded as a result of the Proposal (from the perspective of any anglers or expert on recreation); and
(b)the impact of the Proposal on the behavioural reaction of brown trout within the Mataura River and the consequential impact on angling amenity features of the river.
The Council’s defence
[31]The Council opposes the relief sought by the Society.
First error — status of Fish and Game’s written approval
[32] The Council denies the alleged first error. It denies that it misdirected itself and was in breach of its obligations under s 95A of the Act insofar as the approval from Fish and Game did represent the interests and views of the recreational angling community. The Council stated that it made its own assessment of the levels of likely effects on the environment when reaching its decision on notification.
[33] It denies each of the three particulars pleaded by the Society and said in relation to the particulars, as identified:
(a)Fish and Game’s written approval was one factor in addition to the Council’s own assessment of the likely effects on the environment;
(b)Fish and Game’s written approval did purport to provide approval on behalf of the angling community; and
(c)the emails did not negate the written proposal provided by Fish and Game.
Second error — failure to take account of relevant considerations
[34]The Council denies the alleged second error.
[35] It said that it made an assessment of adverse effects which ultimately found that any adverse effects of the activity would be less than minor. The Council stated that the factors relied on in reaching this conclusion included (but were not limited to):
(i)(The infrequent and short-term contact time, and the small scale, of the rafting operation.
(ii)The rafting operator can manage interactions at launch and retrieval sites by undertaking pre-trip briefings well away from any anglers, and launching and removing the rafts efficiently so that time spent at the river’s edge will be minimised.
(iii)The operation adopts the ‘Code of Conduct’ supplied by Rafting NZ.
(iv)Rafting is generally a quite operation and noise can be managed when close to other users or wildlife.
(v)The rafts will not generate any significant wake and will not give rise to any wash or erosion effects on the banks of the river.
(vi)No perceivable change to the habitat of trout and salmon as the rafts float on the water and are unpowered, thereby removing any possibility of turbulence or wakes disturbing the bed or the banks of the river.
(vii)The proposal will not prevent public access to and along the rivers and their margins.
(viii)[Mr Joostens] undertook consultation with a range of parties and sought to minimise the impacts of the activity on the immediate environment and wider receiving environment, and provided procedures to address many of the concerns raised by those consulted with which are to be collated into an Operational Management Plan to be complied with at all times (Condition 3 of the consent).
[36] It stated that having considered the information contained in the Assessment of Environmental Effects (AEE) and additional assessments in relation to the effects of the proposal, it found that there would be no perceivable adverse effects on the habitat of trout.
[37]It alleged that:
(a)the Water Conservation Order only prohibits or restricts a regional council from reducing the rates of flow in the Mataura and the Waikaia River (cl 4), the granting of a water permit or a discharge permit (cls 5 and 7) and the granting of permits to dam (cl 6);
(b)these were not matters that it was required to take into account for the purposes of s 95A of the Act; and
(c)the Water Conservation Order is provided for under pt 9 of the Act with the purpose of recognising outstanding amenity on intrinsic values of the water bodies, and restrictions or prohibitions can be imposed on the exercise of regional councils’ powers relating to water quality, quantity, levels, flows, allocation and temperature.
Third error — failure to be sufficiently informed
[38]The Council denies the third error.
[39] It stated that the information contained in the AEE, and its other pleaded information, identify that the Council had evidence and was sufficiently and relevantly informed as to:
(a)the potential adverse effects on recreation and amenity values of anglers;
(b)the extent to which their enjoyment could be degraded (if at all) as a result of the consent; and
(c)the impact on the behavioural reaction of brown trout and the consequential impact on angling amenity.
[40] The Council’s assessment was that there would be no more than minor adverse effects.
The applicable principles on judicial review
[41] Counsel recognised the applicable principles of judicial review, as well established, were identified by Wylie J in Coro Mainstreet (Inc) v Thames-
Coromandel District Council, in a passage which I adopt:10
[40] It is not the function of the Court on an application for review to substitute its own decision for that of the consent authority. Nor, will the court assess the merits of the resource consent application or the decision on notification. The inquiry the Court undertakes on an application for review is confined to whether or not the consent authority exceeded its limited jurisdiction conferred by the Act. In practice the Court generally restricts its review to whether the Council as decision maker followed proper procedures, whether all relevant and no irrelevant considerations were taken into account, and whether the decision was manifestly reasonable. The Court has a discretion whether or not to grant relief even if it is persuaded that there is a reviewable error.
[42] As noted by counsel in this case, it is the Court’s role to ensure in relation to a notification decision that it was lawfully available to the consent authority based on the information the authority had before it. The Court does not undertake a merits assessment of the decision.
[43] Discount Brands Ltd v Westfield (NZ) Ltd involved judicial review of a consent authority’s decision not to notify an application.11 The Supreme Court considered the
10 Coro Mainstreet (Inc) v Thames-Coromandel District Council [2013] NZHC 1163 (emphasis added, footnote omitted).
11 Discount Brands Ltd v Westfield (NZ) Ltd [2005] NZSC 17, [2005] 2 NZLR 597.
adequacy of the information which was before a Council. The Court held that the Council had to have sufficiently comprehensive information to satisfy itself that the activity would not have an adverse effect on the environment which was more than minor, and that it would not have any adverse effect which might affect any person unless it would certainly be de minimis or its occurrence would be a remote possibility.12 Blanchard J summarised the requirements:
[114] So, in summary to this point, the information in the possession of the consent authority must be adequate for it: (a) to understand the nature and scope of the proposed activity as it relates to the district plan; (b) to assess the magnitude of any adverse effect on the environment; and (c) to identify the persons who may be more directly affected. The statutory requirement is that the information before the consent authority be adequate. It is not required to be all-embracing but it must be sufficiently comprehensive to enable the consent authority to consider these matters on an informed basis.
[115] The statutory requirement addresses more than the scope of the information. The consent authority must necessarily be satisfied as well that the information is reliable, especially so where an expert opinion is tendered. The authority will need to consider whether the author of the opinion is both appropriately qualified to speak on the subject and sufficiently independent of the applicant so as to be seen as giving expert advice rather than acting as an advocate for the applicant.
[116] Because the consequence of a decision not to notify an application is to shut out from participation in the process those who might have sought to oppose it, the Court will upon a judicial review application carefully scrutinise the material on which the consent authority’s non-notification decision was based in order to determine whether the authority could reasonably have been satisfied that in the circumstances the information was adequate in the various respects discussed above.
[44] The notification provisions under the Act have changed since Discount Brands, but Discount Brands continues to be good law on the information a consent authority should have when deciding whether to notify a resource consent application.13
Issue one — did the Council take into account irrelevant considerations?
The Society’s submissions
[45] The Society identified the first error of law as arising through the Council’s treatment of the written approval of Fish and Game. Ms Steven QC, for the Society,
12 At [6], [23], [24], and [40] per Elias CJ; [50], [51] and [57] per Keith J; [101], [106] and [114] per Blanchard J; [146] and [150] per Tipping J; and [178] per Richardson J.
13 Ferrymead Retail Ltd v Christchurch City Council [2012] NZHC 358 at [80].
succinctly related this ground to judicial review principles by submitting that the Council had taken into account irrelevant considerations. This was because the Council treated the approval by Fish and Game as representing approval of the Proposal by the angling community.
[46] Ms Steven recognised the statutory mandate of Fish and Game under the Conservation Act to protect the fishery and its habitat.14 But Ms Steven emphasised that Fish and Game’s statutory mandate does not extend to maintaining the recreation/amenity of the Mataura environs for recreational anglers.
[47] Ms Steven referred to an affidavit filed by Donald Wallace as Chair of the Society. It is Mr Wallace’s evidence that Fish and Game, before giving written approval to the application, had not consulted with the angling community, including licence holders who fish on the Mataura and/or Oreti Rivers as to their position in relation to the Proposal. In particular such licence holders had not been consulted as to whether the recreational experience of the angling community would be adversely affected if the Proposal were granted resource consent. Ms Steven noted that Fish and Game had no statutory mandate in relation to the protection or preservation of recreation/angler amenity. She submitted that Fish and Game in providing its written approval could not purport to represent the angling community in relation to recreational amenity effects.
[48]These observations culminated in Ms Steven’s submission that:
While Fish & Game’s approval can be considered a relevant consideration in terms of an assessment of the proposal on Fish & Game, it was irrelevant in terms of assessing the effects of the proposal on the angling community.
[49] Ms Steven submitted that the Council’s focus on Fish and Game’s approval was to the exclusion of any focus on the perspective of the anglers whom the Society now represents. Ms Steven referred to the definition in the Act of “amenity values”, being “those natural or physical qualities and characteristics of an area that contribute to people’s appreciation of its pleasantness, aesthetic coherence, and cultural and recreational attributes”.15
14 Section 26P.
15 Section 2.
[50] Ms Steven submitted that the definition of “amenity values” means that decision-makers need an appreciation of the perspective of persons affected. She referred to the observation of the Environment Court in Schofield v Auckland Council that “at its most fundamental level the assessment of amenity value is a partly subjective one, which in our view must be able to be objectively scrutinised”.16 In other words, the starting point for a discussion about amenity values will be articulated by those who enjoy them.
[51] Ms Steven referred also to Yaldhurst Quarries Joint Action Group v Christchurch City Council, in which the Environment Court had treated with caution the evidence of a landscape architect who, in assessing a quarrying application had not undertaken a full assessment of the rural character of the area or made enquiry into the residents’ amenity values.17
[52] Ms Steven submitted that the Council had effectively used the Fish and Game written approval to disregard effects on the angling community in a situation where the “Council needed to be there for the anglers”.
[53] Ms Steven referred also to the Water Conservation Order, with its declaration that the protected waters include outstanding fisheries and angling amenity features. In her submission, the Order ought to have put the Council on notice of the amenity values at stake.
The Council’s submissions
[54] For the Council, Mr Garbett identified the two aspects of the Society’s submissions in relation to the Fish and Game approval.
[55] First, Mr Garbett noted the Society’s claim that the Council had disregarded all effects on anglers because of the written approval of Fish and Game. Mr Garbett submitted that a proper reading of the Decision does not support the conclusion that the Commissioner proceeded upon the basis that effects on anglers were to be
16 Schofield v Auckland Council [2012] NZEnvC 68 at [51].
17 Yaldhurst Quarries Joint Action Group v Christchurch City Council [2017] NZEnvC 165 at [151].
disregarded because of the written approval of Fish and Game. Mr Garbett referred to the full context of references in the Decision to Fish and Game.
[56] Secondly, Mr Garbett submitted that the Fish and Game written approval was a relevant consideration to which the consent authority needed to have regard when processing the application, by reason of its content in relation to both fish and game. Mr Garbett observed that, while the written approval of Fish and Game meant that any effects on it as a statutory body had to be disregarded, it is inherent in the legislation that Fish and Game’s approval is not provided on behalf of every angler, game-bird hunter or other river user.
[57] Mr Garbett submitted that a reading of the Decision demonstrates that the written approval from Fish and Game was treated as approval by the statutory body, but the potential effects on actual river users was then directly addressed and assessed.
[58] Mr Garbett submitted that the following passages from the Decision illustrate the Council’s identification of Fish and Game’s approval, the Council’s awareness of the recognition given to the Mataura through the Water Conservation Order, and the need for assessment of any adverse effects on the relevant subject matter (ecology, wildlife habitats, fisheries and angling amenity and so on). Mr Garbett relied on these passages at pages 6–10 of the Decision:
Existing users of the surface of the water will mainly be trout anglers and jet boating events, and I also assume that there will be occasional recreational users in the form of kayaks or similar activities. I note with respect to anglers that the Southland Fish and Game Council (SFGC) has given its written approval for the trips within the Gore District.
Similar to the adverse effects on ecology and wildlife habitats discussed above, I consider that any interaction with trout anglers will be infrequent and short-term, at both the launching and landing sites as well as during the trip. I agree that any interaction can be managed by the rafting operators to minimise any impact. For example, the Applicant has stated
“The Applicant proposes that short stops, during the excursions proposed, will not be undertaken within 200m of any other river users unless their permission is obtained.”
The rafting operator can also manage interactions at launch and retrieval sites by undertaking pre-trip briefings well away from any anglers, and launching and removing the rafts efficiently so that time spent at the river’s edge is
minimised. The launch and retrieval sites generally have enough space for the operation to provide a suitable separation from other users.
Along with the above management statement when near anglers, the Applicant has also proposed to adopt the ‘Code of Conduct’ supplied by Rafting NZ …
…
Although the [Water Conservation Order] includes reference to the outstanding fisheries and angling amenity, I note that this does not provide any legal right of exclusive use of the river. As noted above, the scale of the operation is considered to be at the lower end of a commercial rafting activity due to the limits on the number of rafts, people, trips on any given day and trips per week. At the proposed scale, the nature of the proposal is not significantly different to a non-commercial operation. Although a commercial operation by its very nature will generally be more regular than a non- commercial use, the level of interaction by the proposal is still considered to be infrequent and short-term. For example, a trout angler may experience up to two rafts passing within 100m of their location over a period of approximately 3 minutes for each raft over the period of the day. It is also noted that some of the clients may be trout anglers who want to access some parts of the river inaccessible by land.
… I consider that the level of interaction between rafters and anglers under the proposed rafting operation will be infrequent and short-term, and small scale, and can be managed by the operator based on the procedures they have proposed as part of the application.
…
The SFGC also mentioned safety concerns during the duck hunting season during consultation with the Applicant. I note that the duck hunting season is undertaken in the cooler months of the year when demand for the rafting operation is expected to be at low level. Also, any adverse effects on duck hunters in terms of having to keep a watch for other users on the river is considered to be not significantly different to the adverse effect of a non- commercial operation.
…
Overall, and subject to the above recommendations, I agree that any adverse effects on other existing surface water activities will be less than minor due to the infrequent and short-term contact time, and the small scale of the operation.
Discussion
[59] The Society has not established the first error. It misconstrues the Decision to suggest that the Commissioner treated the written approval from Fish and Game as representing the interests and views of the entire angling community or as amounting to approval by that community of adverse effects on recreational amenity of anglers.
[60] Having identified trout anglers and jet boating events as the main existing users of the surface of the water, the Council then noted Fish and Game’s provision of its written approval (my emphasis).18 The Council then immediately proceeded to consider whether there were adverse effects on anglers, including by reference to the frequency and duration of interactions and distancing, the management commitments within the Proposal, and the potential for satisfactory co-existence of activities (such as rafting and fishing in particular). The consideration, through the lengthy section of the Decision in pages 6–10, is the antithesis of treating Fish and Game’s approval as representing the interests and views of the entire angling community.
[61]The alleged first error is not established.
Emails from members of the angling community
[62] In pleading the alleged first error, the Society referred (as quoted at [28](c) above) to emails which the Council had received from members of the angling community before making the decision on notification.
[63] It is the Society’s case that that email correspondence negated any perception that Fish and Game’s written approval was given on behalf of the angling community in relation to the effects of the Proposal on their angling amenity/recreational experience on the river.
[64] As I have already noted, the emails contained expressions of opposition to the Proposal and requested or demanded public notification. Some emails also related to the behaviour of brown trout and some attached articles or papers on that subject.
[65] The Society’s Chair, Mr Wallace, provided a fair summary of the emails which are in evidence:
… numerous anglers and other interested persons, including myself, contacted the Councils, primarily by email, voicing concerns with the rafting proposal, and requesting the opportunity to be heard on the application. Local angling clubs and associations opposed the rafting venture.
18 Decision, above n 7, at 6.
Documents supporting their case for public notification were also sent to the Councils, including peer-reviewed studies warning this proposal could have a dramatic impact on the environment, trout and wildlife behaviour, user experience, and current sustainable ecotourism.
Notable evidence included a seminal study Dr John Hayes conducted for the Cawthron Institute of New Zealand (Nelson) which indicated that brown trout need respite from human exposure or they will become nocturnal and hide during the day, and this is evidence that we would have brought to the Council had we been notified of the application.
[66] The Society relied upon the anglers’ email correspondence for the third particular pleaded in relation to the alleged first error (as set out at [28(c)]) above. The email correspondence is pleaded as having the effect of negating any perception that the Fish and Game approval was given on behalf of the angling community.
[67] As I have found that the Decision involved no such “perception” on the part of the decision-maker, this third particular falls away — the Council considered the effects on the angling community independently of the views expressed or implicit in Fish and Game’s approval.
[68] The Society has not pleaded that the Council erred in the consideration or scrutiny the Council might have given to the email correspondence. The Society pleads the existence of the email correspondence simply as a basis for the assertion that the Council treated the Fish and Game approval as given on behalf of the angling community.
[69] In these circumstances, on the facts, it is unnecessary to consider further what the substance of the email correspondence may have shown or suggested. Mr Wallace’s summary (above at [65]) gives an indication of the substance. For the Council, Mr Garbett submitted that the substance of the email correspondence is, as a consequence of the regime under s 95A–95E of the Act, irrelevant. In a process in which public submissions are not called for, the emails in his submission properly formed no part of the application and no part of the Planner’s report to the Commissioner. In Mr Garbett’s submission, the Commissioner as decision-maker was required to disregard the substance of the emails as irrelevant. Mr Garbett submitted that in the event the Council had sufficient information of substance before it to reach the decision it did. As I have found against the Society’s claim based on the alleged
first error for other reasons, I will not make a determination based on Mr Garbett’s assertion as to the substance of the emails being irrelevant to the determination of the notification issue. There may be a tenable argument that, in some circumstances, particularly where such correspondence involves incontrovertible information, the decision-maker might be required to consider further such information. This is not an appropriate case in which to consider such an approach or to identify what would be its limits.
Issue two — did the Council fail to take into account relevant considerations?
The Society’s submissions
[70] The Society identified the second error of law as involving a disregard of three pleaded matters (above at [29]) which it asserts were relevant to whether the proposed activity would have or was likely to have adverse effects on the environment that were more than minor.
[71] Before turning to those matters, Ms Steven developed under this head a submission that the Council’s decision in fact depended on unreliable information.
[72] Ms Steven noted that any decision by a consent authority on the notification of an application must be made on adequate and reliable information. She particularly referred to the discussion of Blanchard J in Discount Brands (set out at [43] above).19 His Honour emphasised the need for the consent authority to consider whether the author of any proffered opinion is both appropriately qualified to speak on the subject and sufficiently independent of the applicant to be seen as giving expert evidence, rather than acting as advocate.
[73] Ms Steven noted also the observation of Tipping J in Discount Brands that: “Information should be distinguished from assertion”.20 Ms Steven submitted that the information provided in the application in relation to recreational and amenity effects on anglers was inadequate and unreliable when assessed by the standards identified in
19 Discount Brands Limited v Westfield (NZ) Limited, above n 11, at [114]–[116].
20 At [146].
Discount Brands. She referred particularly to two matters of information in the application:21
(a)Mr Joostens’ “anecdotes” of his own trips, including Mr Joostens’ recording that “trout have been observed and continued feeding while the raft drifted past”; and
(b)the statement of the Manager of Rafting NZ in relation to the Tongariro River operations that: “The rafts have a minimal effect on the fishing, with the fish looking quite relaxed in the water as we float over them from above”.
[74] Ms Steven submitted that such information and its inclusion in the Decision involved an invalid comparison because:
(a)the Tongariro River is not subject to a Water Conservation Order (with therefore no express protection of angling amenity);
(b)the Tongariro River is home mainly to rainbow trout rather than brown trout as in the Mataura (with the former behaving differently and less likely to be affected by downstream pressures); and
(c)the Tongariro is a much deeper and wider river, there being no information before the Council on whether those differences meant fish would behave differently.
[75]Ms Steven submitted that such information was both partial and unreliable.
[76] In Ms Steven’s submission, the Council lacked adequate and reliable information (such as to give it a proper understanding) of the angling activities associated with the Mataura, the qualities and specific characteristics of the river, the behaviour of brown trout within the river, and the impact the proposed activity would have on that behaviour.
21 Decision, above n 7, at 6.
[77] Ms Steven observed that had the Council received relevant information on those matters from the numerous anglers who had sent emails to the Council, such information would have relevantly informed any decision on the Proposal. Ms Steven submitted that in particular the Council would then have had information on a number of adverse effects, being:
(a)the intrusion on recreational amenity and enjoyment of shore-based anglers through the movement of rafts along the river, impacting on the anglers’ perception of solitude and remoteness;
(b)the likely negative response of the trout habitat, and in particular the brown trout themselves, to any intrusion to their natural habitat, such intrusion being likely to “spook” the trout and subsequently impacting on recognised and protected amenity values; and
(c)the different effect caused by commercial rafting on the Mataura as compared with a wide and deep river such as the Tongariro, with its predominant rainbow trout species less likely to be disturbed or “spooked”.
The Council’s submissions
[78] For the Council, Mr Garbett also focused on the requirement that the consent authority, when making a decision as to notification of an application, must have adequate information. Mr Garbett referred to the principle stated by Blanchard J in the Supreme Court’s decision in Westfield (New Zealand) Ltd v North Shore City Council.22 His Honour stated:23
The information before the authority can be supplied by the applicant, gathered by the authority itself or derived from the general experience and specialist knowledge of its officers and decision-makers concerning the district and the plan. But in aggregate the information must be adequate both for the decision about notification and, if the application is not to be notified, for the substantive decision which follows to be taken properly – for the decisions to be informed, and therefore of better quality.
22 Westfield (New Zealand) Ltd v North Shore City Council [2005] NZSC 17, [2005] 2 NZLR 597.
23 At [107].
[79] Mr Garbett emphasised particularly that it is the aggregate of the information before the authority including that derived from the general experience and specialist knowledge of the authority officers and decision-makers that must be brought into account.
[80] Here, Mr Garbett emphasised the Commissioner’s four-page section in which he addressed the potential effects on other existing surface water activities.24 The overall conclusion reached was that the level of interaction between rafters and anglers under the Proposal was infrequent, short-term and small-scale, and could be managed by the operator based on the procedures proposed as part of the consent application.
[81] Mr Garbett noted that in reaching that conclusion, the Commissioner had and took into account the following information:
(a)The nature of the rafting activities was such as to involve infrequent and short-term interaction with trout anglers and was to be managed by specific commitments of Mr Joostens to have short stops, not undertaken within 200 m of any other road-river users unless their permission was obtained.
(b)The operational scale of the Proposal and its nature were not significantly different to a non-commercial operation.
(c)The Proposal meant that any individual angler might experience up to two rafts passing within 100 m of their location over a period of approximately three minutes for each raft over the period of the day.
(d)Some clients of Mr Joostens may themselves be trout anglers who seek access to otherwise inaccessible parts of the river.
[82] Some of these summarised points were the subject of greater detail in the Proposal itself, as recorded in pages 1–2 of the Decision. An example of the detail of the Proposal, recorded in page 2 of the Decision, reads:
24 Decision, above n 7, at 6–10.
Each raft will carry up to 6 clients and a guide (noting that a guide is optional on Excursion 3). During the trips there will be short stops for swimming or walking, and clients with fishing licences may fish from the banks of the river. No fishing will occur from the rafts. On Excursion 2 there will also be an option for gold prospecting using gold pans, using the Applicant’s existing mining permit to prospect on this portion of the river. The rafting will be leisurely paced at approximately 4km/hr.
[83] Mr Garbett noted specific elements of the Proposal including in relation to raft launching and retrieval, short stops and interaction with other users of the river (including times when it may be appropriate to cease activity). Under the Proposal, and as required under the Decision, all activities were to be the subject of an Operational Management Plan which the operator would be required to comply with at all times. Mr Garbett referred also to Mr Joostens’ adoption of the Rafting NZ “Code of Conduct”, which supplements other aspects of the Proposal with conduct regulated to minimise the effects a raft has on angling. The Code of Conduct relevantly provides:25
1.When and where possible we position the raft on the opposite side of the river to the fisherman we are passing so to give them a wide berth, minimising the effects the raft has on their fishing.
2.When passing fishermen we don’t allow our rafting clients to splash each other or jump out of the raft and swim - until we are well clear of the fisherman.
3.We are always friendly and courteous - moving past the fisherman as efficiently as possible.
[84] Conditions 2, 3 and 4 attaching to the Decision make the implementation of and compliance with the Operational Management Plan a mandatory condition of the land use consent.26
[85] Mr Garbett emphasised that the arrangements for minimising effects upon trout angling were not, as suggested by Ms Steven, based on information which was before the Council merely by way of assertion or unqualified opinion. Rather, the key elements of the Operational Management Plan represent a core element of the way in which interaction between rafting and angling is to be managed and, in terms of the (substantive) Decision, must be managed.
25 As recorded in the Decision, above n 7, at 7.
26 At 18–19.
Discussion
[86]The Society has not established the second error.
[87] The Society’s proposition is that the Council failed to take into account relevant considerations. That was substantially based on the related propositions that matters relied upon by the decision-maker constituted mere assertion rather than “adequate and reliable information”, as identified as a requirement in such cases as Discount Brands.27 The availability of such information was indicated by the emails submitted to the Council by numerous anglers and other interested persons.
[88] It is incorrect to dismiss as mere assertion the content of a proposal which sets out the restrictions and circumstances under which proposed activities will occur. The detail of the proposed three excursions (such as “half day trips for a maximum of three rafts on two trips per day on five days per week”) to be covered by the Operational Management Plan is the very material on which the Council was able to reach reliable conclusions as to such key matters as the period of interaction. Such details were not challenged in this proceeding. The Commissioner for instance observed in relation to ecology considerations that, at a speed of approximately 4 km/hr, it would take approximately three minutes for the rafts to travel from 100 m above a nesting site to 100 m below a nesting site.28 Similarly, in relation to trout anglers in particular, the Commissioner recorded that:29
… a trout angler may experience up to two rafts passing within a 100m of their location over a period of approximately 3 minutes for each raft over the period of the day.
[89] Criticism of the extent to which the Council brought into account the Water Conservation Order takes the Society’s case no further. The Water Conservation Order was identified in the Decision immediately after the Commissioner’s identification of the application as one required to be considered as a discretionary activity.30 The purpose of the Water Conservation Order was accurately identified. Its recognition of
27 Discount Brands Limited v Westfield (NZ) Limited, above n 11, at [114]–[116].
28 Decision, above n 7, at 5.
29 At 8.
30 At 4.
the outstanding fisheries and angling amenity of the Mataura was not disregarded in the Decision.
[90] The Society particularly relied on two aspects of information to support a proposition that the Council had failed to take into account (other) relevant considerations. The two identified matters relate to Mr Joostens’ observations on his own trips and comparisons with the Tongariro River.
[91] The point at which the Commissioner recorded those was in the assessment of effects on ecology and wildlife habitats. The context is relevant and I set out the section in question:31
Any disturbance of aquatic wildlife will also be infrequent and short-term. [Mr Joostens] has advised that on his own trips through Excursion 1 (the Upper Mataura River in the Southland District), trout have been observed and continued feeding while the raft drifted past. I note that this experience appears to be similar to that of the Manager of Rafting NZ who has provided (in further information from [Mr Joostens]) a statement about their operation on the Tongariro River, noting
“The rafts have a minimal effect on the fishing, with the fish looking quite relaxed in the water as we float over them from above.”
While it is acknowledged that the Tongariro River is a deeper river, I accept Mr Buxton’s view that the experience of observing the fish will encourage clients to reduce any activities that would disturb the fish. In the description of the excursions, [Mr Joostens] has mentioned that the trips will involve leisurely travel, and it is accepted this can occur without significant disturbance to aquatic life.
[92] Mr Joostens’ information as to his own experience cannot be viewed as independent evidence and there was no detailed analysis to measure the impact of fish on the Tongariro River. But those matters were demonstrably secondary, serving to provide some explanation of the dominant conclusions in the first and last sentences of the Commissioner’s reasoning set out at [91] above. The Council’s conclusions were clearly driven by the timing detail of the proposal for excursions (“Any disturbance of aquatic wildlife will also be infrequent and short-term”) and in the description of the excursions (Mr Joostens having “mentioned that the trips will involve leisurely travel … without significant disturbance to aquatic life”).
31 At 6.
[93] The Commissioner’s conclusions flowed not from an irrelevant focus on Mr Joostens’ experience on the Mataura or comparisons with the Tongariro River. The conclusions derived from information properly before the Council as to the nature and duration of the rafting excursions, which the Council found to be “not significantly different to a non-commercial operation” and to be “infrequent and short-term”.32
Issue three — did the Council have insufficient information?
The Society’s submissions
[94] The Society identified the third error of law as arising from the Council’s decision to process the application on a non-notified basis when it had no evidence and was not sufficiently or relevantly informed as to certain matters, as set out above at [30]. The two matters of information pleaded related first to the effects on recreation and amenity values of anglers, involving degradation of enjoyment, and secondly to the impact on the behavioural reaction of brown trout within the river and consequential impact on angling amenity features of the river.
[95] Unsurprisingly, Ms Steven had gathered together her submissions on the alleged second and third errors, addressing those matters jointly in the submissions which I have summarised at [70]–[76] above.
Discussion
[96] In the circumstances, my finding that the Society has not established the second error applies equally to the third error.
Conclusion on validity
[97] The Society has not established that the Council’s non-notification decision was invalid by reason of any of the three pleaded errors.
[98] It is therefore unnecessary to consider the submission presented by Ms Cassidy on behalf of the Society in relation to the Court’s discretion. Ms Cassidy referred to
32 At 8 and 6.
the approach which applies when a fundamental error of law has been made, namely that there must be extremely good reasons for the Court in its discretion not to grant relief.33 By reason of my above findings, the exercise of the discretion is not here called upon.
Order
[99]I order:
(a)The application is dismissed.
(b)The applicant is to pay the costs of the first respondent on a 2B basis (without a certificate for second counsel), together with the first respondent’s reasonable disbursements.34 In the event of disagreement on quantum, costs will be determined on memoranda (four page limit) to be filed by the first respondent and the applicant successively.
(c)There is no order as to the costs and disbursements of the proceeding as between the applicant and the second respondent.
Osborne J
Solicitors:
Todd & Walker Law, Queenstown Anderson Lloyd, Dunedin
33 Air Nelson Ltd v Minister of Transport [2008] NZCA 26, [2008] NZAR 139, at [60]–[61].
34 High Court Rules 2016, category 2 under r 14.3(1) and band B under r 14.5(2).
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