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

[2015] NZHC 2058

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2015-409-000518 [2015] NZHC 2058

BETWEEN

ROYAL FOREST AND BIRD

PROTECTION SOCIETY OF NEW ZEALAND INCORPORATED Plaintiff

AND

CANTERBURY REGIONAL COUNCIL Defendant

Submissions filed:	20 August 2015
Judgment:	28 August 2015

JUDGMENT OF DUNNINGHAM J

on Application for Directions as to Service

[1]      On 20 August 2015, the Court received from the Royal Forest and Bird Protection Society of New Zealand Incorporated (the plaintiff) an application for a declaration under the Declaratory Judgments Act 1908.  The application seeks the following declarations:

(a)      Where a person uses land for livestock farming, the deposition of excreta by the livestock to land, in circumstances where contaminants from the excreta may enter water, is a discharge for the purposes of s 15(1) of the Resource Management Act 1991 (the RMA).

(b)Where a person uses land for livestock farming, the deposition of excreta by the livestock to land, in circumstances where contaminants from the excreta may enter water, is a discharge for the purposes of

the National Policy on Freshwater Management 2014.

ROYAL FOREST AND BIRD PROTECTION SOCIETY OF NEW ZEALAND INCORPORATED v

CANTERBURY REGIONAL COUNCIL [2015] NZHC 2058 [28 August 2015]

(c)      On land supplied with water from an irrigation scheme in the Selwyn te Waihora sub region, the direct deposition by livestock of excreta in circumstances where contaminants may enter water is a discharge for the purposes of rr 11.5.15 and 11.5.15A of Variation 1 of the Proposed Canterbury Land and Water Regional Plan.

[2]      Accompanying the application is an application for directions as to service. The proceedings have been discussed with the Canterbury Regional Council which has confirmed it will be a party to the proceedings and, indeed, is named as a defendant.   However, the plaintiff has properly recognised that a wide range of parties are potentially affected by the application and, accompanying the application for directions as to service, is a memorandum setting out:

(a)       the issues raised in the declarations;

(b)      the extent to which the Courts have considered these issues to date;

and

(c)      the plaintiff’s views on the persons or classes of persons who are likely to be interested or adversely affected by the relief sought by the plaintiff.

[3]      Specifically, the plaintiff ’s memorandum identifies the following persons or classes of persons as likely to be interested or adversely affected by the relief sought:

(a)       Regional Councils; (b)   the farming industry;

(c)       irrigation schemes, including in the Selwyn te Waihora sub region; (d)         tangata whenua;

(e)       the Ministry for the Environment; and

(f)       people interested in freshwater issues.

[4]      The memorandum then identifies the following parties, in addition to all Regional Councils, which would be appropriate parties to join to the proceedings to represent these interests. They are:

(a)      Federated Farmers: a non-governmental organisation that represents farming interests and is active in resource management litigation.  The plaintiff also notes that the North Canterbury province of Federated Farmers submitted on Variation 1;

(b)Fonterra and Synlait Farms Limited: large diary companies that have substantial infrastructure in the Selwyn te Waihora sub region and both submitted on Variation 1;

(c)      Central  Plains  Water  Limited:  the  only  irrigation  scheme  in  the Selwyn te Waihora sub region that is referred to in Variation 1.  It too, was a submitter on Variation 1;

(d)      Te Rununga o Ngai Tahu:  the relevant tangata whenua;

(e)      the Ministry for the Environment: responsible for the administration of the National Policy Statement on Freshwater Management 2014; and

(f)      the New Zealand Fish and Game Council:  a statutory body under the Conservation Act  1987,  which  is  active  in  resource  management, particularly with respect to water management.  It too, submitted on Variation 1.

[5]      The  plaintiff  therefore  proposes  that  all  Regional  Councils  and  those identified parties be served with these declaratory proceedings.

Consideration

[6]      Rule  18.4  of  the  High  Court  Rules  which  applies  to  these  proceedings provides that a proceeding such as this must be “accompanied by an application for directions as to service and representation under r 18.7”.

[7]      High Court Rule 18.7 provides, relevantly:

18.7 Applications for directions as to service

(1)       This rule applies when—

(a)       the law requires the making of an application for directions as to service; or

(b)       the plaintiff is in doubt regarding the persons on whom the statement of claim should be served; or

(c)       an order is sought that any person represent any other person or class of persons who should be served; or

(d)       the proceeding is under the Companies Act 1993 and is not a proceeding in the liquidation of a company … or an application to set aside a statutory demand under section 290 of that Act; or

(e)       the court directs that the plaintiff should apply to the court under this rule.

(2)       The plaintiff must apply to the court without notice for directions as to service and for any orders for representation that may be required.

(3)       In support of the application, the plaintiff must provide (by affidavit or otherwise) the information that may be necessary to enable the court to decide what persons or classes of persons are interested in, or may be adversely affected by, the relief sought by the plaintiff and by what means the interests of each such person or class of persons may be adequately represented.

…

(5)       The   application   must   specify   the   directions   sought   and   be accompanied by a memorandum by the plaintiff's solicitor or counsel stating why the directions are sought.

[8]      High Court Rule 18.8 provides a wide discretion to the Judge to make “any orders for service or representation that the Judge thinks just”.   In making such directions, I bear in mind that what the Court is being asked to do by this application is to declare what the law is.   Where a person has an interest in the proceedings

greater than the public generally, then it is entitled to be heard on that.  Here, while the proceedings relate to Variation 1 of the Canterbury Regional Council’s Proposed Canterbury Land and Water Regional Plan, the declaration will have ramifications for all bodies charged with statutory functions under the RMA for regulating discharges.

[9]      I am satisfied that it is appropriate that the persons or classes of persons identified by the plaintiff will engage a broad range of parties with interest in this issue.  However, I cannot rule out that there may be further parties whose interests are affected greater than the public generally, and I simply record that, by making these directions, I do not preclude further parties who can demonstrate that they fall within that category from making an application to be joined as a party.

[10]     Accordingly, the Court gives the following direction under r 18.8:

The proceedings Royal Forest and Bird Protection Society of New Zealand Incorporated v Canterbury Regional Council, CIV-2015-409-000518 are to be served on the following parties:

(a)       All Regional Councils;

(b)      Federated Farmers of New Zealand Incorporated; (c)        Fonterra Ltd;

(d)       Synlait Ltd;

(e)       Central Plains Water Ltd; (f)       Te Rununga o Ngai Tahu;

(g)       Ministry for the Environment; and

(h)       New Zealand Fish and Game Council.

Solicitors:

P Anderson, Royal Forest and Bird Protection Society Of New Zealand Inc.

Wynn Williams, Christchurch