Royal Forest and Bird Protection Society of New Zealand Incorporated v Canterbury Regional Council
[2019] NZHC 2223
•5 September 2019
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2018-409-000851
[2019] NZHC 2223
BETWEEN ROYAL FOREST AND BIRD PROTECTION SOCIETY OF NEW ZEALAND INCORPORATED
AppellantAND
CANTERBURY REGIONAL COUNCIL
Respondent
Hearing: 17 June 2019 Appearances:
D Salmon and P Anderson for Appellant
P A C Maw and K Dickson for Respondent
Judgment:
5 September 2019
JUDGMENT OF DUNNINGHAM J
This judgment was delivered by me on 5 September 2019 at
4.00 pm, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date: 5 September 2019
Introduction
[1] In July 2015, the Canterbury Regional Council (the Council) issued an advice note explaining how the change of land use rules in the Council’s Hurunui and Waiau River Regional Plan (HWRRP) would apply to dryland farmers (the Advice Note).
ROYAL FOREST AND BIRD PROTECTION SOCIETY OF NEW ZEALAND INCORPORATED v CANTERBURY REGIONAL COUNCIL [2019] NZHC 2223 [5 September 2019]
[2] The Royal Forest and Bird Protection Society of New Zealand Inc (Forest and Bird) applied to the Environment Court seeking a declaration that the Advice Note was unlawful. Forest and Bird’s primary concern was that the Advice Note stated that “normal dryland farming” would not be considered a “change of land use” as defined in the HWRRP (which needed a resource consent), when the Council accepted that dryland farming could sometimes trigger that requirement.
[3] The Environment Court considered the application and issued both an Interim Decision,1 and a Final Decision,2 with the Final Decision declaring that two statements made in the Advice Note were unlawful. Those statements were:
(a)normal dryland farming is not considered a “change in land use” as defined in HWRRP as it contributes such a minor amount of the catchment load; and
(b)undertaking bona fide dryland farming practices in the Hurunui District will not constitute a “change in land use”.
[4] Forest and Bird appeals the Final Decision on the basis it did not go far enough. The Advice Note should have been declared unlawful in its entirety because it is a statement that the Council will not enforce its own rules, or it at least unlawfully fetters the Council’s ability to enforce those rules.
[5] The Council’s stance is that, with the erroneous sentences removed, the Advice Note constitutes an appropriate expression of the Council’s compliance, monitoring and enforcement (CME) policy, and is not unlawful.
The HWRRP
[6] The HWRRP was one of the first regional plans developed by the Council to better manage the effects of discharges of nutrients associated with the use of land. It was made operative by the Council in December 2013.
1 Royal Forest and Bird Protection Society of New Zealand Inc v Canterbury Regional Council
[2018] NZEnvC 129 (Interim Decision).
2 Royal Forest and Bird Protection Society of New Zealand Inc v Canterbury Regional Council
[2018] NZEnvC 225 (Final Decision).
[7] The relevant rule in the HWRRP, r 10.2 (sometimes referred to as “the 10 per cent rule”), provides that any change in land use is a permitted activity, provided certain conditions are met. The term “change of land use” is defined in the HWRRP as follows:
For the purposes of this Plan, a change in land use, is calculated on a per property basis, and is determined as being an increase greater than 10 per cent in the long term average release of nitrogen or phosphorus to land which may enter water, measured on a kg/ha basis, but calculated on the gross load per property from the date this Plan is made operative.
[8] If the specified nutrient load limits for either nitrogen or phosphorous are breached in a nutrient management area (NMA), r 11.1A specifies that a change of land use requires a resource consent as a non-complying activity.
[9] The practical consequence of this for dryland farmers had not been fully appreciated during the process of developing the rules. At the time the HWRRP became operative, the Hurunui catchment was experiencing a drought. To cope with it, dryland farmers were making short term changes to their normal farming operations. In June 2014, in the relevant Hurunui NMA above State Highway One, the nutrient load limit for phosphorous was breached. That caused dryland farmers to raise concerns with the Council about whether short-term changes to their ordinary dryland farming practices might constitute a change in land use as defined by the HWRRP, triggering the need for resource consent. For example, short-term changes in sheep to beef ratios, or in the area of the farm converted to fodder crops to address feed deficits, could breach the 10 per cent rule and thus require a resource consent.
[10] Furthermore, dryland farmers did not typically undertake farm nutrient budgets using software such as OVERSEER, and so were not in a position to undertake the calculations required to determine whether or not the threshold for the change of land use rules was triggered.
[11] These concerns were taken to the Hurunui Waiau Zone Committee (the Zone Committee). The Zone Committee, in turn, requested Council staff to provide some guidance to the dryland farm community as to the types of dryland farming activities which would trigger the change of land use rules.
The Advice Note
[12] The Advice Note itself was issued by Council staff on Council letterhead in July 2015, following consultation with the Zone Committee. It commences with the following summary:
1. The land use change provisions in the Hurunui and Waiau River Regional Plan (HWRRP), colloquially referred to as the “10% rule”, have unintended consequences for normal dryland farming practices. For example, changes in the ratio of sheep to beef or changes in the area of fodder crops to address feed deficits can fall outside what is permitted and trigger a requirement for resource consent.
2. Dryland farmers typically have low nutrient losses (5-10 kg N/ha/yr) and it is accepted their contribution to the nutrient load, as measured at SH1 in the Hurunui River, is insignificant when compared to the contribution from farms which undertake high emitting practices (30-100 kg/N/Ha/yr).
3. This Advice Note states Environment Canterbury’s approach to compliance with the “10% rule” in relation to dryland farming: Normal dryland farming is not considered a “change in land use” as defined in the HWRRP as it contributes such a minor amount to the catchment load.
4. To remain operating without resource consent beyond 1 January 2017, all farmers covered by the HWRRP will be required to join a Nutrient Management Collective (as per Rule 10.1) or obtain consents for their existing operation as an alternative to joining a Collective (as per Rule 11.1). Environment Canterbury encourages all dryland farmers to join a Collective, do a Farm Environmental Plan (including preparing a nutrient budget) and implement actions to improve management of nitrogen, phosphorous and microbial losses.
5. The on-farm nutrient management regulatory framework is expected to change following the sub-regional process for the Hurunui Waiau zone scheduled to start in 2018.
[13] In the background section which follows it is acknowledged that dryland farmers are “typically very low emitters of nutrients” and require “the ability to respond to changes in market or climatic conditions quickly by growing more feed when they can within a dryland context”. The section concludes by saying:
The purpose of this document is to outline Environment Canterbury’s approach to implementing the nutrient rules in the HWRRP and the definition of “a change in land use”, so as to make it clear that continued bona fide dryland farming will be provided for across the Hurunui-Waiau and Jed catchments until a plan review can take place to rectify the identified problems with the plan.
[14] In the next section entitled “Approach to compliance with the change in land use rules in the HWRRP”, the Council points out that:
… to achieve the best outcomes for the environment it is not efficient or effective to allocate resources to scrutinising low emitting dryland farmers who are not making significant changes, at the expense of supporting Collectives, ASM, and farm environment plans. With this in mind, we have no intention of checking individual dryland farms for compliance against the change in land use rules unless we observe wholesale changes or practices which we suspect will significantly increase nutrient discharges.
[15] The Advice Note goes on to list activities that would be considered a change in land use, because of their ability to trigger a wholesale increase in nutrient discharges. They comprise the following:
· Increasing irrigation
· Converting to dairying
· Increasing the number of adult cattle wintered on a property with or without irrigation (noting that the scale of the increase will determine if this is a “change in land use” and farmers should seek advice from Environment Canterbury).
· Undertaking a feedlot or feedlot support operation
· Conversion to arable cropping with or without irrigation.
[16]Towards the end of the Advice Note it states:
In summary, it is our expectation that all farmers will commit to the HWRRP, particularly the ASM requirements, and fulfil the obligations to either operate as permitted activities or get consents. However, with respect to those farmers who are operating within low emitting dryland farming systems, our approach to implementing the plan will be based around the following principles:
· Undertaking bona fide dryland farming practices in the Hurunui District will not constitute a “change in land use”…
[17] The Advice Note also says that the HWRRP will be reviewed to address the issue. In line with that advice, a proposed change to the HWRRP has since been notified which is to provide:3
… a new suite of provisions to provide for low intensity dryland farming to operate as a permitted activity… [and] … minor consequential changes to
3 Plan Change 1 to the Hurunui and Waiau River Regional Plan: Draft Section 32 Evaluation Report (Canterbury Regional Council) at 4.
some existing provisions in the HWRRP to exempt normal dryland farming activities from rules that manage other types of farming.
The Environment Court’s decisions
[18] In the Environment Court, Forest and Bird sought a declaration under s 310 of the Resource Management Act 1999 (RMA), in the following terms:
An “Advice Note” issued by Canterbury Regional Council in July 2015 relating to the interpretation of the definition of “change of land use” in the Hurunui and Waiau Rivers Regional Plan is unlawful.
[19] Forest and Bird submitted to that Court that the Advice Note purported to exempt “normal” or “bona fide” dryland farming from the operation of the change of land use rules, even though such farming may be a non-complying activity and require resource consent under those rules. It also submitted that the Advice Note unlawfully fettered the Council’s obligation to enforce the HWRRP, by directing the Council away from the requirements of the HWRRP and towards a different test relating to whether the practices are “normal” or “bona fide” dryland use.
[20] The Council, however, submitted that the Advice Note was intended to provide guidance on the interpretation of “change of land use” as defined by the HWRRP, but was not binding and did not offend relevant principles as to unlawful fettering of a discretion. It was also issued with the intention of providing practical guidance to assist with the Council’s CME functions.
[21] In its Interim Decision, the Environment Court agreed the Advice Note included statements regarding the change of land use rules which were “in conflict with the proper legal interpretation of those rules”.4 The Environment Court also found that the Advice Note was an expression of Council’s policy as to how it would exercise its CME powers and would have “significant persuasive force as a policy”.5
[22] The Environment Court expressed concern over whether the Council had had regard to a relevant consideration, being whether the Council’s approach to enforcement would have any environmental significance in terms of phosphorous
4 Final Decision, above n 2, at [2(c)].
5 Interim Decision, above n 1, at [66].
release.6 It therefore allowed the Council an opportunity to provide supplementary evidence on whether such analysis had been undertaken and what it concluded.
[23] Having received further evidence on this issue, the Environment Court issued the Final Decision on 20 November 2018. On the basis of the Council’s supplementary evidence and submissions, it held that the Council had given due consideration to phosphorous loading risks in formulating the Advice Note.
[24] The Environment Court then addressed the substantive application. It did not consider it would be appropriate to make a declaration in the terms sought by Forest and Bird, and rule the entire Advice Note unlawful, because “the Advice Note expresses a Council CME policy that is soundly informed by relevant scientific analysis”.7 That said, it went on to say that two statements in the Advice Note which said that normal dryland farming would not constitute a change in land use could not be reconciled with a proper interpretation of the HWRRP. The Judge observed that there:8
… is a clear risk that farmers will take those statements to be authoritative on the legal effect of the HWRRP and, therefore, be unaware that their farming is in breach of the HWRRP and the RMA.
[25] The Environment Court also accepted that those inaccurate statements could “operate as an unlawful fetter on Council officer discretion” by dissuading officers from considering an activity as non-compliant simply because its effects were minor.9 Worse, dryland farmers could “well assume the Council’s word on its own plan is accurate”.10 As a consequence, the Court held that “[p]ublic interest considerations favour making a declaration that targets those parts of the Advice Note that are legally unsound”.11 It declared the two identified statements in the Advice Note which said that normal or bona fide dryland practices were not a change in land use to be unlawful.12
6 It being satisfied the Council had considered the effects of the policy on nitrogen discharges.
7 At [36].
8 At [39].
9 At [40].
10 At [40].
11 At [43].
12 As set out at [3] above.
This appeal
[26] Forest and Bird alleges that there were the following three errors of law in the Final Decision:
(a)the Environment Court erred in finding that the Advice Note was lawful (“not legally unsound”) to the extent that it expressed the Council’s policy of not enforcing the change of land use rules in the HWRRP in relation to specific dryland farming practices;
(b)the Environment Court erred in finding that the only parts of the Advice Note that constituted an unlawful fetter on the discretion of Council enforcement officers were those statements that misrepresented the legal position as to whether specific dryland farming practices complied with the HWRRP; and
(c)in the alternative, the Court erred in finding that the Council could have a policy not to enforce a rule in the HWRRP where, in the circumstances that existed, the policy was contrary to the Council’s obligation under a National Policy Statement to maintain water quality and to avoid overallocation.
First error of law - policy of not enforcing rules
Forest and Bird’s submissions
[27] Forest and Bird’s primary submission is that it is unlawful to adopt a policy not to enforce a rule in the HWRRP. It points out that s 84(1) of the RMA expressly requires a council to enforce its plan, saying:
While a policy statement or a plan is operative, the regional council or territorial authority concerned, and every consent authority, shall observe and, to the extent of its authority, enforce the observance of the policy statement or plan.
As the Environment Court has previously held, the provisions of s 84 “are fundamental to the operation of the Act in practice”.13
[28] Forest and Bird notes that there is a detailed process contained in sch 1 of the RMA for the preparation of plans under the RMA and for allowing for public participation in the plan development process, including through appeals to the Environment Court. These processes often take considerable resources in terms of both time and money. It would undermine this process to allow a council, having prepared a plan in accordance with it, to then issue an advice note to the effect that it would not enforce a rule which had been approved pursuant to that process.
[29] Difficulties would also be created when parties such as Forest and Bird sought enforcement orders,14 or undertook a private prosecution for breach of rule, where the defendant could point to an advice note as justifying that person’s position. While, of course, the provisions of the relevant plan would prevail, it would create uncertainty and problems in sentencing. It would also raise the prospect of greater numbers of private prosecutions.
[30] The effect of the Final Decision is to sanction a policy of not enforcing a rule. Such a purported suspension of a rule by “executive fiat” has echoes of Fitzgerald v Muldoon.15 However, the proper course of action, if a rule in a plan is not working as anticipated or has some unintended consequence, is to amend the rule to remedy the defects. It is not appropriate to simply suspend operation of the rule through an advice note.
[31] Forest and Bird says its submission is supported by the decision in Wellington Fish and Game Council v Manawatu-Wanganui Regional Council.16 That case involved advice notes attached to resource consents which purported to allow adjustments to the leaching limits in resource consents. The effect of the advice notes was that the Regional Council would not take enforcement action where activities resulted in leaching limits being exceeded, provided the leaching limits in the consent,
13 Tait-Jamieson v Queen City Residential Ltd [1996] NZRMA 169.
14 Under s 314 RMA.
15 Fitzgerald v Muldoon [1976] 2 NZLR 615.
16 Wellington Fish and Game Council v Manawatu-Wanganui Regional Council [2017] NZEnvC 37.
as adjusted in accordance with the advice notes, were not exceeded. The Environment Court accepted that advice notes that purport to fetter enforcement are unlawful under the RMA and made a declaration that conditions or advice notes stating, or to the effect that, it is not intended that there will be enforcement of any specific management practices, are unlawful, invalid, and in contravention of the RMA.17
[32] Forest and Bird also refers to the decision in New Zealand Motor Caravan Association Inc v Thames-Coromandel District Council, where the High Court held that, while there is a discretion not to prosecute in individual cases, a policy decision of general application not to enforce a particular law would be unlawful.18
[33] In that case, the Council made a bylaw under the recently introduced Freedom Camping Act 2011, identifying certain areas where freedom camping was prohibited. It mistakenly understood that its existing bylaw, which effectively prohibited camping on public land in the district, would be revoked when the new bylaw was passed. In proceedings challenging the validity of the new bylaw, the Council said it would consent to an order that the old bylaw not be enforced. However, the Court considered it wrong in principle for a Council to maintain a bylaw but not to enforce it, saying “a Council should not maintain bylaws that, on the face of it, declare conduct unlawful if there is no intention or ability to enforce them”.19 The rationale for this was explained as follows:20
Citizens are entitled to regulate their affairs in accordance with the law, and should not be dependent on enforcement policies able to be changed without the formality and publicity attendant on the actual law making process. This is a fundamental requirement of the rule of law.
[34] Forest and Bird submits that the Advice Note here offends the same principle because the Council is effectively saying it will not enforce its rule as it applies to dryland farmers. That is contrary to its obligations under s 84 RMA, and contrary to the rule of law. Furthermore, it is not remedied by simply declaring the two identified statements unlawful.
17 At [186].
18 New Zealand Motor Caravan Association Inc v Thames-Coromandel District Council [2014] NZHC 2016 at [61].
19 At [61].
20 At [62].
The Council’s submissions
[35] While accepting the obligation under s 84 of the RMA, the Council emphasises that the RMA does not prescribe how that obligation is to be carried out, and councils have the discretion to determine the most effective way of carrying out their enforcement functions. As the High Court has previously determined in relation to the equivalent provision under the Town and Country Planning Act:21
… there must be a discretion in the council as to how it enforces its Scheme. It may do so by persuasion, by threat, by prosecution or by seeking an injunction, by any combination of those means and perhaps by other means that in particular circumstances may become available to it.
[36] In that case, and subsequent cases, it is clear that the Court will be extremely reluctant to consider intervening in a discretionary decision made by a council as to how to carry out its function under s 84 of the RMA.22
[37] Mr Maw notes that there are a number of methods through which a council can choose to enforce its plan, ranging from education through to full regulatory prosecution. The method chosen is up to the council, with the only requirement being that it is effective. Achieving high rates of compliance with limited resources requires the council to adopt a strategic approach to enforcement of its plan and good practice requires the council to be consistent and transparent in its approach to enforcement.
[38] Mr Maw notes that the Environment Court accepted that alternative methods of enforcement can be effective. For example, the Environment Court accepted the Council’s evidence that focusing on encouraging conversion from border dyke to spray irrigation had been effective in reducing phosphorous losses across the catchment and said:23
I accept the Council’s evidence that its limited resources inherently mean that it must prioritise and target CME. Risk analysis of the kind applied by the Council here, can have a legitimate place in a Council’s approach to determining its relative CME priorities and applying its resources accordingly.
21 Manakau Shopping Centre Merchants Association v Manakau City HC Auckland CP2721/88, 1 December 1988.
22 Inta v Avery Brothers [2018] NZEnvC 36; and Downing v Nelson City Council EnvC Christchurch C009/06, 30 January 2006.
23 Final Decision, above n 2, at [30].
[39] The Council emphasises that the Advice Note could not prevent a prosecution being brought, whether by the Council or a private person, and estoppel could not be raised as a defence.24 That was recognised by the Environment Court when it said:25
… the Advice Note, as a type of CME policy, does not operate as an estoppel on the Council’s capacity to take prosecutorial or other enforcement action for breaches of the HWRRP.
[40] In this case, the Council’s position is that the Advice Note properly advises the Council’s CME policy in respect of the 10 per cent rule in the HWRRP, and it is underpinned by valid scientific analysis, as was accepted by the Environment Court and by Forest and Bird.
[41] Mr Maw distinguishes the decision in Wellington Fish and Game Council saying the advice note in those proceedings was included on resource consents. It purported to adjust the leaching limits in the resource consent for any purpose and by an undefined methodology. That offended against the principles in Turner v Allison, which relate to the validity of consent conditions.26 In the present case the Advice Note is not acting as a consent condition but is simply general guidance issued to inform the dryland farming community about the Council’s approach to compliance with a rule in the HWRRP in certain circumstances.
[42] Mr Maw also distinguishes the New Zealand Motor Caravan Association case where the Council intended not to enforce its old bylaw until it could be revoked. Here the rules in the HWRRP continue to have full legal effect and are able to be enforced. Indeed, the Advice Note itself recognises situations in which the rule may be triggered and encourages farmers to approach the Council and obtain consent if it is required. In any event, in that case, the Court decided that it would be appropriate to direct the Council not to enforce the old bylaw while it took the necessary steps to revoke it. In this case, the Advice Note has always been intended to be an interim measure until a plan change could be notified to address the wider issues with the application of the 10 per cent rule in the HWRRP to dryland farms. The Council submits that a similarly
24 Southend-on-Sea Corporation v Hodgson (Wickford) Ltd [1962] 1 QB 416.
25 Interim Decision, above n 1, at [56].
26 Turner v Allison [1971] NZLR 833.
pragmatic approach should be taken in this case, given the Advice Note will no longer be relevant once the HWRRP is changed.
[43] Finally, Mr Maw argues that the Advice Note does not constitute a policy of not enforcing planning rules. It simply provides practical guidance on how the Council intends to approach compliance with the 10 per cent rule. The Advice Note identifies particular activities that would be likely to be considered a change in land use, as well as those that, on their face, would not appear to trigger the rule. Mr Maw says it does not contain any express statement that the HWRRP will not be enforced by the Council. It also reiterates the Council’s expectation that farmers will “fulfil the obligations to either operate as permitted activities or get consents”.
[44] On this basis Mr Maw submits it is not possible to say that the Advice Note constitutes a policy of not enforcing rules in the HWRRP in breach of s 84 of the RMA. Instead, the Advice Note is, as the Environment Court held, in its nature a CME policy which does not alter the obligations of resource users to comply with the HWRRP rules.
First alleged error of law – policy of not enforcing the rules
[45] The first question to be addressed is whether the Advice Note articulates a policy of not enforcing a rule in any category of cases. In my view, it does. The Council plainly accepts that dryland farming can, in the course of making year by year farming decisions, fall outside what is permitted under the HWRRP. Despite that, the Advice Note makes several clear statements that the Council will not consider changes which fall within the normal range of activities of dryland farming as constituting a change of use as defined in the HWRRP. It says it will do this to ensure that normal dryland farming will continue to be provided for until the HWRRP is changed. The only logical reading of the Advice Note is that the HWRRP will not be enforced in respect of such activities.
[46] While obviously not determinative, it is nevertheless instructive to note that farmers also understood the Advice Note as confirming that position. Following the release of the Advice Note in July 2015, Stuff Ltd reported that:27
Environment Canterbury … will no longer apply its proposed “10 per cent rule” in the Hurunui catchment, meaning farmers will not be forced to get resource consent for normal farming practices, like restocking and applying fertilisers.
[47] The article refers to the risk that dryland farmers could have fallen outside the 10 per cent rule in the course of their normal dryland farming operation, triggering the need for resource consent, but “now, dryland farmers” undertaking “bona fide” dryland practices in the district will “not be at risk of being non-complying … and having to apply for one of those consents”. Farmers expressed the view that the Advice Note gave them “confidence and certainty” and would “reduce stress”.
[48] In my view, the assumption that the rule would not be enforced for normal dryland farming was a logical and intended reading of the Advice Note.
[49] I accept that the Advice Note makes it clear that dryland farmers can still trigger the rule in some cases. However, it is only where they implement “wholesale” changes to their farming practice that that will be the case. The examples given involve a fundamental shift of farming practice, such as converting to dairying or arable cropping or undertaking a feedlot, all of which usually involve irrigation.28 They are not simply adjustments within a normal dryland farming operation to cope with, say, a drought.
[50] Looked at in totality I am satisfied that the Council has adopted a policy to not enforce its 10 per cent rule in an identified class of cases by treating them as if the 10 per cent rule did not apply. This offends the principle articulated in R v Commissioner of Police of the Metropolis, ex parte Blackburn where the English Court of Appeal held that the Commissioner could not adopt an absolute stance of
27 Tim Fulton “North Canterbury farmers get reprieve on intensification units” Stuff (online ed, 24 July 2015).
28 Which, by definition, is no longer dryland farming.
non-prosecution of certain offences.29 For instance, he could not decide to never prosecute for theft of goods under the value of £100.30 To do so would amount to “a clear breach of duty”.31
[51] Blackburn has been cited with approval in a number of New Zealand cases.32 In Hallett v Attorney-General (No 2), Henry J accepted that adoption of a general policy of non-prosecution of certain offences would be reviewable, although in the case before him no general policy had been adopted; rather a specific decision had been made on the facts.33 Although the Council suggests that principles applying to the police in enforcing laws made by Parliament can be distinguished from cases where the Council is itself the law maker, I do not agree that the principles in Blackburn should apply with any less rigour to the enforcement of rules in an RMA plan. Those rules are made with considerable public input and with the knowledge that application of those rules will have significant consequences for how people undertake the regulated activities. The public should have confidence that the rules will be enforced, subject to a proper exercise of the prosecutorial discretion.
[52] I also do not accept the unlawful nature of the statement is overcome by saying the HWRRP still has regulatory force and effect and the Advice Note does not act as an estoppel. It is the policy articulated in the Advice Note which is the subject of the challenge, not the legal ability to enforce rules in a plan.
[53] While the Council urges there to be pragmatism, such as there was in the Motor Caravan Association case, where the Court sanctioned non-enforcement while steps were taken to revoke the old bylaw, those are matters which go to the Court’s response to any unlawfulness. They do not determine whether such a policy is unlawful in the first place.
29 R v Commissioner of Police of the Metropolis, Ex parte Blackburn [1968] 2 QB 118, [1968] 1 All ER 763.
30 At 136.
31 At 139.
32 For example in Osborne v Worksafe New Zealand [2017] NZCA 11, [2017] 2 NZLR 513 and
Sathyan v Police Commissioner of Wellington [2016] NZCA 532, [2017] NZAR 186.
33 Hallett v Attorney-General (No 2) [1989] 2 NZLR 96.
[54] In my view, read as a whole, the Advice Note does unlawfully purport to treat a category of activity as permitted, and therefore not amenable to enforcement action of any type and the Environment Court was in error to conclude that the Advice Note “was not unsound in the fact that it expresses a CME policy of not enforcing the change of land use rules in relation to specified dryland farming practices”.34
[55] This error is partially, but not entirely, resolved by declaring the two passages identified in the Environment Court’s decision unlawful. Other statements reinforce the overall message that there will be no enforcement of the rule for normal dryland farming. These include the statements that the rules have “unintended consequences for normal dryland farming practices”, that the purpose of the document is to make it clear that such farming “will be provided for” until a plan review can take place, and that it is only if a dryland farmer “changes their operation” that they will “no longer be considered a permitted activity”.
[56] For completeness, I also do not consider these statements in the Advice Note can be justified as part of a transparent CME policy. I accept that councils need to adopt strategic approaches to achieving compliance with their RMA plans and to adopt enforcement policies which can be used to determine what enforcement action (if any) they should take in response to non-compliance. However, a review of the Ministry for the Environment’s Best Practice Guidelines for Compliance, Monitoring and Enforcement does not suggest that such a policy could go so far as to preclude any enforcement in a defined category of breaches. Rather, enforcement policies are intended to guide how the enforcement response in an individual case will be determined; for example, by saying what factors will be considered, how decisions will be made, and who will make them.35
[57] In summary, by stating that a class of activity would not be considered a change of land use requiring a resource consent, when it knew that it could breach the rules, the Council went beyond expressing a lawful CME policy and adopted an unlawful
34 Final Decision, above n 2, at [42].
35 Best Practice Guidelines for Compliance, Monitoring and Enforcement under the Resource Management Act 1991 (Ministry for the Environment, July 2018) at 73.
policy of not enforcing the HWRRP in those cases. The Environment Court was in error when it concluded otherwise.
Second alleged error of law – fetter of enforcement discretion
Forest and Bird’s submissions
[58] The second error alleged by Forest and Bird is that the Environment Court erred in deciding that the removal of the two identified unlawful statements from the Advice Note removed the risk of it constituting an unlawful fetter on Council’s enforcement discretion.
[59] Mr Salmon’s submissions for Forest and Bird refer to the decision in Cancer Society of New Zealand Inc v Ministry of Health, regarding the enforcement of the Smoke Free Environments Act 1990.36 In that case, the Ministry of Health had published guidelines to assist with the determination of whether or not an area was an open area in which smoking was allowed. The guidelines included a mathematical tool to assist in that calculation. The Cancer Society challenged the use of the guidelines and calculator, saying these directed the enforcement officers away from the statutory test which simply distinguished between an “open area” and a “substantially enclosed” area, where smoking was prohibited. In that case, the High Court held that, while the goal of predictability and consistency was laudable, the guidelines and calculator introduced extraneous considerations and fettered the discretion of the enforcement officers.37
[60] In the present case, Forest and Bird submits the Council has similarly introduced an extraneous consideration into the way enforcement officers approach consideration of whether there has a been a change of use as defined in the HWRRP. The Advice Note directs the Council away from the requirements of the HWRRP and towards a different test relating to whether the practices are “normal” or “bona fide” dryland use.
36 Cancer Society of New Zealand Inc v Ministry of Health [2013] NZHC 2538, [2013] NZAR 1461.
37 At [48].
[61] Furthermore, the consequence of the Environment Court’s decision is to suggest it is lawful for the Council to fetter its enforcement discretion if it has undertaken a risk analysis. Forest and Bird say the 10 per cent rule does not provide for a risk analysis to be done to determine whether it applies or not and it is therefore an extraneous consideration. While the Court said that the rule would still have “full force and effect”, that is not accurate when the Council has a public policy not to enforce the rule.38
[62] Importantly, while the Court did declare that aspects of the Advice Note were unlawful, Forest and Bird submits that removing the identified words does not change the substance of the Advice Note, which is that the Council does not intend to enforce the 10 per cent rule for dryland farmers who do not implement “wholesale changes”. For example, the Advice Note advises that the Council has:
… no intention of checking individual dryland farms for compliance against the change in land use rules unless we observe wholesale changes or practices which we suspect will significantly increase nutrient discharges.
The Council’s submissions
[63] The Council, however, submits the Environment Court properly considered and applied the approach set out in Cancer Society when coming to its decision. It notes:
(a)the Advice Note is not prescriptive and does not contain any mandatory directions to Council officers;
(b)it does not impose an inflexible standard in terms of interpreting the provisions in the HWRRP and, as the Environment Court said, it has no legal effect on how the HWRRP is to be interpreted; and
(c)it does not import an additional test beyond that which is set out in the HWRRP, rather it provides guidance on how the Council intends to approach its CME functions in respect of the relevant rule.
38 Final Decision, above n 2, at [30].
[64] The Council places particular reliance on the following passage in the Advice Note:
It is highly likely that if a dryland farmer changes their operation and starts carrying out one or more of the above practices on their property, they will no longer be considered a permitted activity and will trigger the requirement for resource consent. Whether these criteria are met or not, we encourage any farmer intending to change their land use in a way which may result in a significant increase in the discharge of contaminants to the environment to approach us to seek advice and talk about their options.
Thus the Advice Note is only providing guidance but leaves open the question of whether, at law, a particular activity constitutes a change of land use as defined in the HWRRP.
[65] In addition, the Council says the Environment Court was correct to reject the argument that a risk analysis was an extraneous consideration in exercising its duties under s 84 RMA. As the Environment Court said, “[r]isk analysis can be a valid aspect of the Council’s exercise of prosecutorial discretion in the exercise of its duty in s 84 RMA”.39
[66] In any event, there is nothing within the Advice Note that states that the Council will not enforce the 10 per cent rule on the basis of its risk analysis. Indeed, it makes it clear that where it has reasonable grounds to believe that there has been a breach, it will enforce it. It therefore does not fetter the discretion of the Council in an unlawful way.
Discussion
[67] I have already determined that the Advice Note went beyond articulating a lawful CME policy by determining that a category of activity would not be treated as breaching the HWRRP rules and, by implication, would not be amenable to any type of enforcement action.
[68]I accept, however, that it would have been legitimate for the Council to:
39 At [30].
(a)identify priorities for enforcement;
(b)identify the range of enforcement options it would consider; and
(c)identify factors that would be taken into account in determining the appropriate enforcement action in any particular case, which could include a risk analysis of likely environmental effects.
Thus, I accept that many of the matters covered in the Advice Note are legitimate considerations in determining how an enforcement officer would respond to any particular identified non-compliance.
[69] However, the primary difficulty with the Advice Note is that it does not just set out general principles which could then be applied in individual cases of non-compliance, it identifies a category of activity that would be considered to be compliant with the rules when it may in fact breach them. Thus, even though the HWRRP continues to have full force and effect, the Council’s promulgated position would interfere with the discretion of Council officers. It would risk them taking into account the extraneous consideration of the position promulgated in the Advice Note that normal dryland farming was to be treated as a permitted activity. That contradicts the plain wording of the HWRRP.
[70] Furthermore, this was accepted by the Environment Court to a large degree, saying that:40
Those inaccurate representations of the legal effect of the HWRRP could operate as an unlawful fetter on Council officer discretion … [by] dissuading officers from considering [dryland farming] as non-compliant on the invalid footing that, by reason of minor effects, the activity is compliant.
[71] However, it is implicit in the Court’s decision that removal of the two identified statements would avoid that outcome. Again, I do not agree.
[72] The Advice Note was published in the expectation that it would alter how enforcement officers approached their task. Furthermore, it set up the expectation in
40 At [40].
dryland farmers that the Council would have regard to the statements in the Advice Note before making any decision to take enforcement action under the HWRRP. While the removal of the two identified statements largely addresses that issue, it does not remove it entirely. The statements identified at [25] above still have the effect of directing enforcement officers to ignore breaches of the 10 per cent rule in the dryland farming context.
[73] In my view, therefore, the Advice Note does unlawfully fetter Council officers’ discretion, even as amended by the Environment Court, and the Environment Court was in error not to recognise this.
Third alleged error – contrary to the National Policy Statement for Freshwater Management
Forest and Bird’s submissions
[74] The third ground of appeal is that it is unlawful for the Council to have a policy not to enforce a rule in its plan where the policy is contrary to the Council’s obligation under the National Policy Statement on Freshwater Management (NPSFM) to maintain water quality and avoid overallocation.
[75]Forest and Bird refers to objective A2 of the NPSFM, which requires that:
The overall quality of freshwater within a freshwater management unit is maintained or improved while:
…
(c)improving the quality of freshwater and water bodies that have been degraded by human activities to the point of being overallocated.
Forest and Bird also refers to policy A1, which requires the Council to ensure its plans “establish methods (including rules) to avoid over-allocation”.
[76] Forest and Bird argues that the HWRRP gives effect to the NPSFM policies by providing for catchment load limits for the nutrient contaminants nitrogen and phosphorous. However, applying those limits, the Hurunui River is “overallocated for phosphorous and fully allocated for nitrogen”.
[77] Forest and Bird also notes that in promoting the plan change to the HWRRP to accommodate dryland farming, the Council has been unable to simply permit that activity as this would result in an overallocation. Instead the plan change has had to offset the losses expected from permitting normal dryland farming activities by having other dischargers of nitrogen relinquish that right. Thus, the plan change to amend the 10 per cent rule is dependent on the nitrogen losses expected from dryland farming being offset.
[78] However, such offsetting is not required under the approach mandated by the Advice Note, where dryland farmers can undertake activities which trigger the change of use rule by increasing nutrient discharges by more than 10 per cent. It would therefore be contrary to the NPSFM to allow the Council to over allocate nitrogen through its Advice Note with no off-setting, when it acknowledges it has to account for this in its plan change process.
The Council’s submissions
[79] The Council accepts that the NPSFM requires regional councils to maintain water quality and to improve it where degraded to the point of being overallocated.
[80] However, the Council submits that the Environment Court made factual findings that the CME policy contained in the Advice Note would not have adverse impacts on nutrient losses. In this regard, Mr Maw pointed to the Court’s conclusion that the Advice Note was “properly underpinned by analysis of any risks of phosphorous [and nitrogen] loading”.41 Furthermore, Forest and Bird had made it clear in its notice of appeal that it did not dispute the scientific analysis underpinning the Advice Note. In those circumstances, Mr Maw argues that Forest and Bird appears to be challenging the factual findings of the Environment Court decision in respect of the effect of losses of nitrogen and phosphorous on the environment as a result of implementing the Advice Note. That is not an appropriate ground of challenge in an appeal on a question of law under s 299 RMA.
41 The Final Decision, above n 2, at [34].
Discussion
[81] Forest and Bird’s appeal can only be brought on questions of law.42 In respect of alleged errors in the Court’s factual findings on such appeals, the Supreme Court has said:43
An appeal cannot … be said to be on a question of law where the fact-finding court has merely applied law which it has correctly understood to the facts of an individual case. It is for the court to weigh the relevant facts in light of the applicable law. Provided that the court has not overlooked any relevant matter or taken account of some matter which is irrelevant to the proper application of the law, the conclusion is a matter for the fact-finding court, unless it is clearly insupportable.
[82] Forest and Bird’s submission that the Advice Note is contrary to the NPSFM’s direction to avoid overallocation was expressly considered by the Environment Court. Although the Court considered the Advice Note was in the nature of a CME policy, the Court had due regard to the risks of both additional nitrogen and phosphorous loading and found that the Advice Note was “soundly informed by relevant scientific analysis”.44 It is implicit in that finding that the Advice Note is not contrary to the NPSFM.
[83] It is not for this Court to speculate on why the Council has required further offsetting as part of its proposed plan change. That may simply be the reflection of a precautionary approach. More importantly, I do not consider it is appropriate for me to reason from that, that the policy contained in the Advice Note is therefore contrary to the NPSFM.
[84] I do not accept, therefore, that there is a factual basis on which I can assume that the policy in the Advice Note is contrary to the NPSFM, and so this alleged error of law is not established.
42 Resource Management Act 1991, s 299.
43 Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] NZLR 721 at [25].
44 Final Decision, above n 2, at [36].
What declaratory relief, if any, should be granted?
Relief sought
[85]In its notice of appeal Forest and Bird seeks the following declaratory relief:
(a)a declaration that the Advice Note is unlawful;
(b)a declaration that it is unlawful for a local authority to have a policy to the effect that it will not enforce specific provisions of an operative planning document within its district; and, in the alternative
(c)a declaration that it is unlawful for a local authority to have a policy not to enforce a rule where the purpose of the rule is to maintain water quality and avoid overallocation.
Council’s response
[86] The Council submits that in the event an error is established, the matter should be referred back to the Environment Court.45 That would allow the Environment Court, as a specialist jurisdiction, to determine the application with reference to any guidance on matters of law that the High Court may provide.46
[87] Mr Maw also points out that the relief sought in the High Court goes beyond that sought in the original declarations filed in the Environment Court, which is contrary to the principles of natural justice.
[88] Furthermore, even if the High Court considers it proper to make a declaration, it should focus on the fact-specific declaration sought in relation to the Advice Note. The second declaration sought is more hypothetical in nature and may affect the rights of other local authorities that are not party to the proceedings. The third declaration sought is an alternative to the second. Simply because the appellant considers it might
45 High Court Rules 2016, r 20.19(1)(b).
46 Guardians of Paku Bay Association Inc v Waikato Regional Council (2011) 16 ELRNZ 544, [2012] 1 NZLR 271 (HC) at [32]-[33].
be helpful to have an answer on that does not make it appropriate for the Court to make such a declaration.
Discussion
[89] Forest and Bird’s original application in relation to the Advice Note sought a declaration that the Advice Note was unlawful on the grounds that it “has the effect of unlawfully fettering the Council’s obligation to enforce the Hurunui and Waiau River Regional Plan”.
[90] The Environment Court, however, made an alternate declaration declaring that two statements in the Advice Note were unlawful.
[91] The consequence of my decision is that, while the Environment Court was right to state that those statements in the Advice Notice were incorrect, it was wrong to conclude the Advice Note, as a whole, was not “legally unsound”, or that, with those two incorrect statements removed, it would no longer unlawfully fetter Council enforcement officers’ discretion.
[92] I see little utility in sending the matter to the Environment Court to reconsider the declarations made. There are no further factual findings to be made and any declaration that is made is solely as a consequence of the identification of the Environment Court’s errors.
[93] However, I accept that the declarations made must be fully and fairly available on the case as originally presented. They should be specific to the facts before me and not be simply general statements of the law, unconnected to the facts of the case, and which may have ramifications beyond the circumstances presented here.
[94]For these reasons, I make the following declaration:
(a)the Advice Note issued by the Canterbury Regional Council in July 2015 entitled “Dryland Farming and Triggering the Land Use Change Rules in the Hurunui and Waiau River Regional Plan” is unlawful because:
(i)it purports to adopt a policy of not enforcing a specific provision of the HWRRP in relation to “normal” or “bona fide dryland farming”; and
(ii)it has the effect of unlawfully fettering the Council’s obligation to enforce the HWRRP.
[95]I reserve the issue of costs.
Solicitors:
Wynn Williams, Christchurch
1
4
1