Rayonier New Zealand Ltd v Port Blakely Ltd
[2024] NZHC 4001
•20 December 2024
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2021-409-570
[2024] NZHC 4001
BETWEEN RAYONIER NEW ZEALAND LIMITED and PORT BLAKELY LIMITED
AppellantsAND
CANTERBURY REGIONAL COUNCIL
Respondent
AND
TIMARU DISTRICT COUNCIL
Interested Party
AND
CENTRAL SOUTH ISLAND FISH AND GAME COUNCIL
Interested Party
Hearing: 25 November 2024 (adjourned part-heard)
12 December 2024
Memorandum of Consent, 19 December 2024Appearances:
A F Pilditch KC for Appellants (via VMR)
P A C Maw and K T Dickson for Respondent G C Hamilton for Timaru District Council
M Baker-Galloway for Central South Island Fish and Game Council (appearance excused)
Judgment:
20 December 2024
JUDGMENT OF HARLAND J
(as to relief)
[1] On 6 June 2024, I issued my interim judgment in respect of this appeal allowing it but adjourned the question of what relief should follow.1 Although the parties could not initially agree about the relief the Court should direct and/or order
1 Rayonier New Zealand Ltd v Canterbury Regional Council [2024] NZHC 1478.
RAYONIER NEW ZEALAND LTD v CANTERBURY REGIONAL COUNCIL [2024] NZHC 4001 [20
December 2024]
and I heard submissions from counsel for the parties about the available options at the hearing on 25 November 2024, they agreed at the end of the hearing to adjourn to see if they could resolve their outstanding differences.
[2] The parties have since agreed on the relief that should follow from my substantive judgment and, to that end, have filed a joint memorandum dated 19 December 2024 outlining their agreement, which was accompanied by an affidavit of Jerome Geoffrey Wyeth providing a legal basis for the changes that are now proposed to be made to Plan Change 7 (PC7) to the Canterbury Land and Water Regional Plan (the proposed plan).
[3] Although I signal that I approve the orders sought by consent, some background in required in order to justify that conclusion, given that there are to be, as a result of these orders, changes to a regional plan.
The substantive judgment
[4] The appeal challenged the proposed changes to the sediment discharge rule and water yield rule in the proposed plan as they relate to plantation forestry activities.
[5] In relation to the sediment discharge rule, I determined that the hearing panel charged with making recommendations on PC7:
(a) failed to consider expert evidence and legal submissions regarding the PC7 changes;
(b) failed to undertake a proper analysis under s 32(4) of the Resource Management Act 1991 (RMA); and
(c) failed to give adequate reasons for its decision.
[6] I determined this amounted to an error of law because the hearing panel had failed to consider relevant matters and to give effect to the duty to give reasons under
the RMA.2 This error of law was attributed to the Council as it had accepted the hearing panel's recommendations in their entirety.
[7]With respect to the water yield rule, I found that the hearing panel:
(a) failed to consider the advice from Council officers that the scope of PC7 did not extend to reconsidering the effects of forestry on water yield; and
(b) failed to undertake a proper analysis under ss 32 and 32AA of the RMA.
[8] I found that the panel failed to properly consider relevant matters in arriving at its decision and this failure was attributable also to the Council.3
The relief
[9] Rule 20.19 of the High Court Rules 2016 (HCR) and ss 300-307 of the RMA, which apply "with necessary modifications" under the provisions of the Environment Canterbury (Transitional Governance Arrangements) Act 2016, set out the Court's jurisdiction to determine these appeals.
[10] Rule 20.19(1) provides that, after hearing an appeal, the Court may do one or more of the following:
(a) make any decision it thinks should have been made:
(b) direct the decision-maker—
(i)to rehear the proceedings concerned; or
(ii)to consider or determine (whether for the first time or again) any matters the court directs; or
(iii)to enter judgment for any party to the proceedings the court directs:
(c) make any order the court thinks just, including any order as to costs.
[11] The parties have agreed that the Court can quash the Council's decision and substitute its own decision about the wording of the rules instead. The Canterbury
2 Rayonier New Zealand Ltd v Canterbury Regional Council, above n 1, at [228]-[229].
3 At [230]-[231].
Regional Council considers that substitution can occur because the parties have reached agreement, whereas the appellants consider that substitution was available and appropriate regardless. I do not need to determine which party is correct given the agreement that has now been reached as to how the planning provisions should be framed in light of the Court's substantive findings.
[12] Although the subject matter of the appeal relates to a public law process and due consideration must be given to the wider public interest in the promulgation of planning instruments, all submitters on the plantation forestry rules that were under appeal in PC7 were served with a copy of the appeal and had an opportunity to join the proceeding as an interested party. I note that the Timaru District Council and Central South Island Fish and Game Council are interested parties, and took the opportunity to join this appeal as such. I also note that counsel for these interested parties have signed the memorandum seeking orders by consent.
[13] All the parties consider that substitution of the relevant provisions is appropriate and is in accordance with the High Court's decision in Port Otago Ltd v Dunedin City Council.4
[14] The proposed redrafted rules were annexed to the joint memorandum seeking orders by consent. Mr Wyeth explained that, in preparing his affidavit, he had considered the relevant documents, including the Resource Management (National Environmental Standards for Commercial Forestry) Regulations 2017 (NES-CF) which replaces the NES-PF, a similar document that applied at the time the PC7 process was being undertaken. The affidavit of Mr Wyeth provides a jurisdictional basis for the proposed amendments to the rules the Court is being asked to substitute. It has been necessary to demonstrate how the proposed amendments meet the requirements in ss 32 and 70 of the RMA.
[15]Mr Wyeth summarised the proposed amendments as follows:
16 In summary, the proposed amendments involve the following changes to the PC7 decision version rules relating to plantation forestry:
4 Port Otago Ltd v Dunedin City Council HC Dunedin AP112/93, 15 November 1993 at [9].
(a)Amendments to the advice notes for Rule 5.189 and Rule 5.190 to make it clear that the LWRP rules apply in addition to the NES-CF, to refer to the NES-CF (rather than NES-PF), and to clarify that rules
5.72 to 5.74 (new planting or replanting of plantation forestry within a Flow Sensitive Catchment) and Rule 5.70 and Rule 5.71 (vegetation clearance and earthworks in High Soil Erosion Risk areas) also apply to plantation forestry activities in those areas.
(b)Deleting clauses (1) and (2) from Rule 5.189 and clause (3) from Rule 5.189 which relate to new planting and replanting of plantation forestry in Flow Sensitive Catchments and sediment discharges from any plantation forestry respectively.
(c)Reinstating rules 5.72 to 5.74 in the operative LWRP for planting of new areas of plantation forestry (afforestation) and replanting in Flow Sensitive Catchments.
17 Amendments to consistently refer to the Resource Management (National Environmental Standards for Commercial Forestry) Regulations 2017 in the applicable rules. In summary, the practical effect of the proposed amendments is that:
(a)All plantation forestry activities are regulated by the NES-CF.
(b)All plantation forestry activities are also regulated by Rule 5.189 and Rule 5.190 which sets out more stringent requirements within more sensitive areas.
(c)Afforestation and replanting within Flow Sensitive Catchments are also regulated by Rules 5.72 to 5.74.
(d)Earthworks, pruning and thinning to waste, and harvesting within High Soil Erosion Risk areas are also regulated by Rule 5.170 and Rule 5.171 in the LWRP.
[16] I am satisfied, having read Mr Wyeth's affidavit and considered the matters contained in it there is a jurisdictional basis for this Court to make the orders sought, given Mr Wyeth's evaluation under s 32AA and his evidence about any potential jurisdictional impediments under s 70 of the RMA that might have applied to r 5.189. The parties, through their joint memorandum, have also accepted that the jurisdictional requirement to the making of the orders under ss 32AA and 70 have been met.
[17] Although the usual course of action is for matters involving changes to planning documents to be remitted back to the decision-maker, there have been cases where the Court has approved an agreement which results in the Court on appeal substituting its decision. In such cases, the Court on appeal is effectively making the decision it thinks should have been made by the first instance decision-maker. There
can be no question that the power to do so exists, it is more the appropriateness of such an approach in the context of the case before the Court.
[18] Counsel, in their joint memorandum, helpfully referred me to a number of other cases where this approach has been taken in the context of plan changes5 and I am satisfied that, in light of the agreement reached, the case law referred to me and Mr Wyeth's affidavit, in this case it is appropriate to do so.
Decision
[19] The proposed amendments to the PC7 plantation forestry rules were contained in annexure A to the joint memorandum and, as well, were annexed to Mr Wyeth's affidavit. In this document, the PC7 notified changes were shown in black underlined and text, the PC7 decision amendments were shown red underlined and text, and in addition recommended amendments were shown in blue underlined and text. The coloured changes are not replicated in the next paragraph but, to be clear, the decision I make changing the below listed PC7 plantation forestry rules are those included in annexure A that accord with the agreed marked up amendments.
[20] In exercising the Court's power under r 20.19(1)(a) of the HCR and by consent, I order and amend the text of PC7 as follows:
Plantation Forestry
Note:
1. Plantation forestry activities are regulated by:
a.the Resource Management (National Environmental Standards for Commercial Forestry) Regulations 2017;
b.Rules 5.189 to 5.190 in this Plan;
5 Royal Forest and Bird Protection Society of New Zealand Inc v Canterbury Regional Council [2015] NZHC 3013; Ellesmere Sustainable Agriculture Inc v Canterbury Regional Council [2015] NZHC 3011; Combined Canterbury Provinces, Federated Farmers of New Zealand Incorporated v Canterbury Regional Council [2016] NZHC 1965; Barrhill Chertsey Irrigation Ltd v Canterbury Regional Council HC Christchurch CIV-2016-409-115, 16 April 2018; Rangitata Diversion Race Management Ltd v Canterbury Regional Council HC Christchurch CIV-2016- 409-125, 16 April 2018; Barrhill Chertsey Irrigation Ltd v Canterbury Regional Council [2018] NZHC 1960; Royal Forest and Bird Protection Society of New Zealand Incorporated v Christchurch City Council [2017] NZHC 669; Te Runanga o Ngai Tahu v Christchurch City Council [2017] NZHC 541; Ancona Properties Ltd v Auckland Council [2017] NZHC 594; Canterbury Aggregate Producers Group v Canterbury Regional Council HC Christchurch CIV- 2016-409-1031, 9 June 2017.
c.Rules 5.72 to 5.74 in this Plan where new planting or replanting of plantation forestry is within any Flow Sensitive Catchment listed in Sections 6 to 15 of this Plan; and
d.Rules 5.170 and 5.171 in this Plan where vegetation clearance and earthworks associated with plantation forestry activities is within areas shown as High Soil Erosion Risk on the Planning Maps.
2. Activities that are not regulated by the Resource Management (National Environmental Standards for Commercial Forestry) Regulations 2017, must comply with any other relevant rules in this Plan.
3. See sub-region Sections 6 to 15 of this Plan for the locations of flow sensitive catchments.
5.189Any plantation forestry activity regulated by the Resource Management (National Environmental Standards for Commercial Forestry) Regulations 2017 including:
a. the excavation, deposition or disturbance of land, including land in the bed of a lake or river, or in a wetland;
b. the planting, replanting or clearance of vegetation, including in, on, or under the bed of a lake or river, or in a wetland; or
c. the taking or diverting of water; or
d. the discharge of contaminants into water or onto or into land in circumstances where it may enter water;
is a permitted activity, provided the following conditions are met:
…
4. The activity is not undertaken in any Critical Habitat or in a salmon spawning site listed in Schedule 17; and
5. The activity is not undertaken in any inanga spawning habitat during the inanga spawning season of 1 March to 1 June inclusive; and
6. The activity does not reduce the area of a wetland; and
7. Any portable container used to store a hazardous substance (including fuel) is not located within:
a. 20 m of a surface water body or a bore; or
b. a Community Drinking-water Protection Zone as set out in Schedule 1; and
8. The activity does not occur within an area identified as a Rock Art Management Area on the Planning Maps.
5.190Any plantation forestry activity, regulated by the Resource Management (National Environmental Standards for Commercial Forestry) Regulations 2017 including:
a. the excavation, deposition or disturbance of land, including land in the bed of a lake or river, or in a wetland; or
b. the planting, replanting or clearance of vegetation, including in, on, or under the bed of a lake or river, or in a wetland; or
c. the taking or diverting of water; or
d. the discharge of water or contaminants into or onto land in circumstances where it may enter water;
that does not meet one or more of the conditions of Rule 5.189 is a discretionary activity.
Flow Sensitive Catchments
Note: See sub-region Sections 6 to 15 of this Plan for location-specific requirements
5.72The replanting after harvest of areas of plantation forest within any flow-sensitive catchment listed in Sections 6 to 15 is a permitted activity, provided the following conditions are met:
1. The total area of replanted forest does not exceed the area of forest and replanting of the forest occurs in the same location, or the area as used for a rotation forestry operation, that existed at 1 November 2010; and
2. Any replanting occurs within five years of the removal of the previous forest cover.
5.73The planting of new areas of plantation forest within any flow- sensitive catchment listed in Sections 6 to 15 is a controlled activity, provided the forest planting meets the following conditions:
1. Existing areas of exotic tall vegetation, other than plantation forest, that is greater than 2 m tall and occupies more than 80% of the canopy cover and existed at 1 November 2010 may be planted in plantation forest; and
2. In catchments less than or equal to 50 km2 in area the total area of land planted in plantation forest does not exceed 20% of the flow sensitive catchment or sub-catchment listed in Sections 6 to 15; and
3. In any catchment greater than 50 km2 in area the new area of planting, together with all other new areas of planting in the same flow sensitive catchment since 1 November 2012, will
not cumulatively cause more than a five percent reduction in the seven day mean annual low flow, and/or more than a 10% reduction in the mean flow.
The CRC reserves control over the following matter:
1. The provision of information on the location, density and timing of planting.
5.74The replanting after harvest of areas of plantation forest that does not meet the conditions of Rule 5.72 or the planting of new plantation forest that does not meet one or more of the conditions of Rule 5.73, within any flow-sensitive catchment listed in Sections 6 to 15 is a restricted discretionary activity.
The exercise of discretion is restricted to the following matters:
1. The actual or potential adverse environmental effects of forestry planting on the surface water flows in the catchment, including water allocation status, minimum flow or flow regime, in-stream values and authorised takes and use of the water; and
2. The actual or potential adverse environmental effects of forestry planting on groundwater recharge; and
3. The benefits of the forestry for slope stability, erosion control, noxious plant control, water quality, carbon sequestration and biodiversity protection; and
4. The spacing and density, and species of the planting.
Costs
[21] Costs are reserved. The parties have indicated they will seek to reach agreement about costs but, if that does not occur, the following timetable will apply:
(a) any memorandum by the appellants is to be filed and served by 5.00 pm on 21 February 2025 and is not to exceed 10 pages; and
(b) any memorandum by the respondents is to be filed and served by 5.00 pm on 7 March 2025 and is not to exceed 10 pages.
Harland J
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