Royal Forest and Bird Protection Society of New Zealand Incorporated v Canterbury Regional Council

[2015] NZHC 3013

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2015-409-000338 [2015] NZHC 3013

BETWEEN

ROYAL FOREST AND BIRD

PROTECTION SOCIETY OF

NEW ZEALAND INCORPORATED Appellant

AND

CANTERBURY REGIONAL COUNCIL Respondent

Hearing:	1 December 2015 (On the papers)
Appearances:	P D Anderson for Appellant PAC Maw for Respondent
Judgment:	1 December 2015

JUDGMENT OF DUNNINGHAM J

[1]      This judgment deals with the proposed settlement of an appeal against the decisions of the Canterbury Regional Council (“CRC”) on Variation 1 to the Canterbury Land and Water Regional Plan (“Variation 1”).

[2]      The appellant and CRC have reached agreement on how that appeal should be resolved. That agreement is supported by the other parties to the appeal being:

(i)       Ellesmere Sustainable Agriculture Incorporated; (ii)    Federated Farmers of New Zealand;

(iii)     Royal    Forest    and   Bird    Protection    Society   of    New   Zealand

Incorporated;

(iv)     Te Runanga O Ngai Tahu;

ROYAL FOREST AND BIRD PROTECTION SOCIETY OF NEW ZEALAND INCORPORATED v

CANTERBURY REGIONAL COUNCIL [2015] NZHC 3013 [1 December 2015]

(v)      Central Plains Water Limited; (vi)           Irrigation New Zealand; and (vii)         Synlait Milk Limited.

[3]      I am satisfied that the appeals should be resolved on the basis sent out in the joint memorandum of counsel recording settlement dated 25 November 2015.   In particular, I am satisfied that:

(a)     the proposed amendments are consistent with the Environment Canterbury (Temporary Commissioners and Improved Water Management)  Act  2010  (“the  ECan Act”),  and  with  the  relevant provisions of the RMA in particular its purpose and principles;

(b)I have jurisdiction to make the orders sought, as a consequence of r 20.19 of the High Court Rules and ss 300-307 of the RMA, which apply  “with  necessary  modifications”  under  the  provisions  of  the ECan Act;

(c)       the consent orders sought are within the scope of the appeals;

(d)I am satisfied that it is appropriate under r 20.19 of the High Court Rules that I make the orders sought rather than refer the matter back to the CRC to rehear these issues, noting, in particular, the resolution reached   represents   the   views   of   a   wide   cross-section   of   the community and, given the narrow scope of the relief jointly requested, is as not necessary for the matter to be remitted back to CRC for determination.

The appeal

[4]      The appellant initially raised 10 questions of law in paragraph 12 of its notice of appeal.  It has, as a consequence of the settlement discussions, abandoned eight of those questions.

[5]      The remaining questions of law are as follows:

(a)      Does policy 11.4(1) as amended by the Commissioners, together with the objectives, policies, rules and methods in Variation 1 give effect to the requirement in Objective A2 of the National Policy for Freshwater Management  2014  to  improve  water  quality  in  an  over  allocated

catchment?1

(b)Were  the  Commissioners  required  to  set  limits  and  targets  in Variation 1 with reference to the maximum amount of resource use available, which allows a freshwater objective to be met?  If so, did they err in failing to set the limits and targets in that manner?

[6]      The parties, for convenience, have referred to these two questions of law as

the “NPSFM error” and the “limits and targets error” respectively.

The NPSFM error

[7]      The appellant contended that CRC’s decision on Variation 1 failed to give effect to Objective A2 of the National Policy for Freshwater Management 2014 by failing to ensure that the relevant policy, as amended by its decision, would improve water quality in an over allocated catchment.

[8]      Having   engaged   in   settlement   discussions   with   the   appellant,   CRC acknowledges that there is ambiguity in policy 11.4.14 identified in the appellant’s grounds of appeal which, together with policy 11.4.17A, does give rise to an error of law.   The ambiguity is as to whether the percentage reductions in nitrogen losses required by policy 11.4.14 apply to farming activities within irrigation schemes.

[9]      The parties accept, therefore, that policy 11.4.14 should be amended, with a consequential amendment to policy 11.4.17A, to remove any ambiguity regarding

the application of the percentage reductions in policy 11.4.14 to irrigation schemes.

1      The parties note that while the error is pleaded as relating to policy 11.4(1) they are satisfied that the grounds of appeal make it clear that the alleged error relates to policy 11.4.14, and it is that policy which is affected by the proposed amendment.

[10]     The parties set out, an Appendix A to their memorandum, the amendments which are required to Variation 1 to remove that ambiguity, and thereby ensure that the percentage reductions required by the policy clearly apply to farming activities within irrigation schemes.

Limits and targets error

[11]     The appellant considered that the CRC’s decision on Variation 1 resulted in limits and targets in Tables 11(i) and 11(j) which have not been established as the maximum amount of resource use available which allows the freshwater outcomes to be met.

[12]     The  CRC  acknowledges  that  the  NPSFM  requires  a  limit  (being  the maximum amount of resource use available which allows a freshwater objective to be met), to be set out in regional planning documents such as Variation 1.  It also considers that the limits and targets specified in Table 11(i) and Table 11(j) have been established as the maximum amount of resource use available.  In particular, Table 11(i) contains a nitrogen load (or limit) which applies to all farming activities within the Selwyn/Te Waihora catchment.

[13]     However, the Council accepts that there is an ambiguity as to whether the nitrogen  load  limit/target  in  Table  11(i)  includes  the  irrigation  scheme  limit  in Table 11(j).  The intention is that Table 11(i) does include the irrigation scheme limit. An  amendment  is  proposed  to  Table  11(i),  with  a  consequential  amendment  to Table 11(j), to resolve this ambiguity.

[14]     The parties have agreed to amendments to Tables 11(i) and 11(j) to address the appellant’s concerns and the error in law in relation to the limits and targets in the context  of  the  decision  on  Variation  1,  and  those  amendments  are  set  out  in Appendix A  to  the  joint  memorandum  of  counsel  recording  settlement  dated

25 November 2015.

[15]     All the other parties to the appeals have similarly agreed to the contents of this memorandum setting out the relief sought.

Outcome

[16]     I am  satisfied  that  it  is  appropriate to  exercise  the Court’s  power under r 20.19  to  amend  the  text  of  Variation  1,  as  proposed  in  the  parties’  joint memorandum.

[17]     Accordingly, I order that Variation 1 to the Canterbury Land and Water Plan be amended as set out in Appendix A of the joint memorandum of counsel recording settlement dated 25 November 2015.

[18]     The parties agree that there is no issue as to costs in respect of the resolution of this appeal.

Solicitors:

P Anderson, Royal Forest and Bird Protection Society of New Zealand Incorporated

Wynn Williams, Christchurch