University of Auckland v Auckland Council
[2017] NZHC 1150
•30 May 2017
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2016-404-2318 [2017] NZHC 1150
BETWEEN THE UNIVERSITY OF AUCKLAND
Appellant
AND
AUCKLAND COUNCIL Respondent
FEDERATED FARMERS OF NEW ZEALAND INCORPORATED
SOIL AND HEALTH ASSOCIATION OF NZ LIMITED
WHANGAREI DISTRICT COUNCIL Section 301 parties
Hearing: On the papers Counsel:
R Brabant for Appellant
M G Wakefield for Respondent
R Gardner for Federated Farmers of New Zealand Inc
R Makgill for Soil and Health Association of NZ Limited
G Mathias for Whangarei District CouncilJudgment:
30 May 2017
JUDGMENT OF WHATA J
This judgment was delivered by me on 30 May 2017 at 4.00 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date: ………………………….
Solicitors: Auckland Council, Auckland
THE UNIVERSITY OF AUCKLAND v AUCKLAND COUNCIL [2017] NZHC 1150 [30 May 2017]
[1] The University of Auckland (the University) appeals against the decision of the Auckland Council (the Council) to accept the recommendations of the Independent Hearings Panel (IHP) in relation to the use of genetically modified organisms (GMOs). The University claims that Chapter E37 of the Auckland Unitary Plan (Unitary Plan) dealing with GMOs irrationally prohibits the use of viable GMO medical vaccines. By contrast the Council submits that Activity Table E37.4.1 permits medical applications.
[2] Relevantly, Table E37.4.1 provides the following activity statuses to various
GMO activities:
(A1) Genetically modified organism activities not specifically provided for or prohibited, including research within contained laboratories and medical or veterinary applications involving use of non-viable genetically modified products [permitted]
(A2) Genetically modified organism field trials on land and within the coastal marine area and any structure intended to house, or otherwise contain, plants and animals which are associated with the conducting of genetically modified organism field trials [discretionary]
(A3) The use of any viable genetically modified veterinary vaccine of a specific dose supervised by a veterinarian [permitted]
(A4) The use of any viable genetically modified veterinary vaccine not otherwise provided for [discretionary]
(A5) Genetically modified organism releases – non food-related on land and within the coastal marine area and any structure intended to house or otherwise contain plants and animals which are associated with outdoor genetically modified organism release, except as specifically provided for [prohibited]
(A6) Genetically modified organism releases – non food-related on land and within the coastal marine area and any structure intended to house or otherwise contain plants and animals which are associated with outdoor genetically modified organism releases, except as specifically provided for [prohibited]
[3] The Council submits that the use of viable GMO medical vaccines is permitted by A1 (as a GMO activity not specifically provided for), and that there is therefore no material error of law. But it accepts that the current version of Table E37.4.1 gives rise to an issue of interpretation.
[4] The parties agree that the appeal may be resolved by consent on the basis of the relief set out in Appendix A.
[5] I must resolve whether there is an error to correct, and if so whether I should grant the relief as sought or otherwise.
Jurisdiction
[6] The statutory frame is canvassed in detail in my judgments in Albany North Landowners v Auckland Council1 and Ancona Properties Ltd v Auckland Council,2 together with the judgment of Wylie J in Transpower New Zealand Ltd v Auckland Council.3 It is unnecessary to repeat the dicta in those judgments. In short, I must be satisfied that the IHP erred in law in order to allow the appeal, even by consent. I must also be satisfied that if I allow the appeal, referral back to the Council and a further appeal to the Environment Court would be futile.
Assessment
[7] I do not accept that a decision to prohibit medical applications using viable GMOs is irrational in the sense that this term is used in public law; that is, testing the legality of an exercise of statutory power.4 On the information available to me, it was available to the IHP to prefer a precautionary approach to the release of viable GMOs via medical applications, including medical vaccines.
[8] But the current version of Table E37.4.1 is ambiguous on its face. To elaborate, two interpretations of table E37.4.1 are reasonably available on the basis that medical vaccines using viable GMOs are, or are not, ‘specifically provided for or prohibited’: one that includes viable GMO medical vaccines within the scope of A1 and outside the scope of A6, and one in which they are outside the scope of A1, instead falling within A6. One the one hand, it could be said that discharges of viable
GMOs following medical vaccine via human waste are literally “releases” to land
1 Albany North Landowners v Auckland Council [2017] NZHC 138.
2 Ancona Properties Ltd v Auckland Council [2017] NZHC 594.
3 Transpower New Zealand Ltd v Auckland Council [2017] NZHC 281.
4 Wellington City Council v Woolworths New Zealand Ltd (No 2) [1996] 2 NZLR 537 (CA) at
545; citing Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (HL)
at 410.
triggering A6.5 On the other hand, the administration of a medical vaccine to a person is not commonly considered a release to land.
[9] A contextual reading does not bring full clarity. As to context, helpfully the parties have produced a detailed statement of agreed facts.
[10] The following is clear:
(a) The s 32 report was primarily focused on the management of the outdoor use of and potential effects of GMO activities, noting:6
Potential GMO activities of relevance include GM food crops, trees, grasses, animals and pharma crops, but exclude research within contained laboratories involving GMOs, medical applications involving the manufacture and use of GM products, and food containing GM products that are not viable. Field trials and outdoor releases to the environment are the focus of the Plan Change.
(emphasis added)
(b) And further:7
Inserting provisions into the Unitary Plan to manage the outdoor use of, and potential effects of, GMO activities is considered to be the most appropriate way of achieving the purpose of the Act for this type of activity. The Objectives clearly state the desired outcome of providing for outdoor use of GMOs while ensuring potential adverse environmental effects are avoided, or mitigated. Both the Regional Policy Statement policy and Auckland Wide Policy 1, state that this will be achieved through adopting a precautionary approach.
(emphasis added)
(c) GMO research in contained facilities was not considered to present risks or costs to the environment, including but not limited to the
5 Dr Anthony Masamu Poole, Professor in the School of Biological Sciences at the University of Auckland provided evidence that medical vaccines using viable GMO’s may result in GMOs being discharged to the environment via human waste.
6 Auckland Council Section 32 Report Part 2.49 Genetically modified organisms (30 September
2013) at 2.
7 At 8.
manufacture and use of non-viable GM products, the s 32 report stating:8
Benefits
The permitted activity rule would apply, but not be limited to research within contained laboratories involving GMOs and medical applications involving the manufacture and use of non-viable GM products. There are no costs identified with this rule.
Efficiency and Effectiveness
This rule is considered to be efficient as the absence of a permitted activity rule would mean all GMO activities would require a consent. This rule is efficient and effective as it permits medical applications involving the manufacture and use of non-viable GM products, and vaccines that tend not to persist in the environment, appear to be low risk and are difficult to monitor. This rule is efficient and effective in achieving the Objectives.
(emphasis added)
(d) This report was based on a draft report of the Inter-Council Working
Party prepared in 2013. That report states:9
The Plan Change permits GMO activities that are not classified as field trials and releases, and are not specifically addressed by the Plan Change. This includes (but is not limited to) research within contained laboratories involving GMOs, medical applications (using GM products) and food containing GM products that are not viable.
All veterinary vaccines are listed as a Permitted Activity in the Plan Change and are exempt from the need to obtain a resource consent. This is because they do not tend to persist in the environment, appear to be low risk and are difficult to monitor.
(emphasis added)
[11] The notified Proposed Auckland Unitary Plan (PAUP) adopted the focus of the s 32 report on outdoor use of and potential effects of GMO activities. It:
(a) Included the following issue of regional significance:10
8 At 11.
9 Auckland Council Section 32 Report Appendix 3.49.1 – Managing Risks Associated with
Outdoor Use of GMOs – Draft report (January 2013) at 19.
10 Auckland Council Proposed Auckland Unitary Plan Chapter B1.5 Sustainably managing our natural resources (30 September 2013).
The outdoor use of genetically modified organisms could adversely affect our environment, economy and social and cultural resources and values. There is a lack of information, including scientific uncertainty, concerning the effects of GMOs in the environment and risks of irreversible adverse effects which could be substantial. We need to adopt a precautionary approach to managing the risks associated with the outdoor use of GMOs.
(b) Included the following in the Background text to the Regional and
District Objectives and Policies regarding GMOs:11
Pastoral farming, dairying, horticulture and forestry are important land uses in Auckland and are significant contributors to the local and regional economy. Aquaculture is also a growing primary industry in New Zealand. Therefore there are a range of outdoor GMOs that GMO developers could consider using in Auckland, including GM food crops, trees, animals, aquaculture products and pharma crops. The potential for adverse effects, including accidental contamination, resulting from the outdoor use of GMOs poses a risk to the community and environment. By specifying classes of GMOs and applying standards to the outdoor use of GMOs, the risks associated with their use, storage, cultivation, harvesting, processing or transportation can be reduced.
Within Auckland, this will involve managing and limiting the outdoor use of GMOs. Further, rules and controls will be used to mitigate any adverse effects associated with contamination by GMOs beyond the subject site, thereby reducing the risks to the community, environment and economy. Accidental or unintentional migration of GMOs that result in GMO contamination and subsequent clean up and remediation can be expensive. The council therefore requires a GMO operator to meet all potential costs associated with the activity and will secure long term financial accountability through appropriate standards and bonding requirements.
(c) Regulated the use of GMOs by classifying:12
(i) two types of GMO activity as Permitted, being:
Veterinary Vaccines
And:
11 Auckland Council Proposed Auckland Unitary Plan Chapter C5.17 – Genetically modified organisms (30 September 2013).
12 Auckland Council Proposed Auckland Unitary Plan Chapter H4.19 – Genetically modified organisms – Genetically modified organisms- Activity table (30 September 2013).
GMO activities not specifically provided for or prohibited, including research within contained laboratories and medical applications involving use of non-viable GM products.
(ii)“GMO Field Trials” (on land and within the coastal and marine area) as Discretionary activities; and
(iii)“GMO Releases” (Food-Related and Non Food-Related on land and within the coastal and marine area) as Prohibited activities.
[12] Finally:
(a) There were no submissions specifically relating to the medical application of GMOs;
(b)The relevant Council evidence included a statement that uses of GMOs in non-viable medical vaccines were not controversial, but recommended that medical vaccines (without qualification) be permitted; and
(c) The IHP’s recommendations essentially adopted the PAUP approach to classification.
[13] Against this background, it appears a distinction between viable and non- viable GMOs was present throughout the plan promulgation process, but the clear focus of the controls was outdoor releases, including field trials, rather than regulating the use of approved veterinary or medical vaccines.
The error
[14] It is trite that regulation may be invalid for ambiguity.13 The public should not be left unsure about whether they comply with the law, particularly where
prosecution for non-compliance might follow.
13 Transport Ministry v Alexander [1978] 1 NZLR 306 (CA) at 311 per Cooke J; citing McEldowney v Forde [1971] AC 632 (HL); Official Assignee v Chief Executive of the Ministry of Fisheries [2002] 2 NZLR 722 (CA) at [82] per Thomas J.
[15] If this matter came before me as a matter purely of interpretation (for example by way of judicial review or declaratory relief), then I would be prepared to make a definitive finding. My tentative view is that discharges via human waste were not the type of release specifically intended to be caught by A6, particularly given the overall focus on outdoor use of GMOs. But this matter has come to me on appeal as part of the plan promulgation process. The IHP and then the Council is reposed by Parliament with the responsibility for settling the provisions of the Unitary Plan. The orthodox course then is to refer the matter back to them for reconsideration in light of my judgment.
[16] It transpires that the Council and the University are prepared to consent to the amendments stated in Appendix A. The amendments bring the requisite clarity, assuming that the intention of the decisions version of the Unitary Plan was to provide for the use of viable GMO medical vaccines as a permitted activity, outside of the ambit of A6.
[17] The remaining question therefore is whether I should simply endorse this outcome or refer the relevant provisions back to the Council.
[18] In Ancona I signalled that agreed changes should trigger a right of appeal to the Environment Court unless such a course would be futile.14 This is because approval of the agreed outcome is tantamount to the Council rejecting the IHP’s decision. On matters of substance where an interested party might be genuinely interested in challenging this outcome, the statutory right of appeal to the Environment Court comes into frame.
[19] In the present case there were no submissions on medical vaccines. This underscores in my view that medical vaccines were not a matter of public concern. But, as noted, from my reading of the s 32 report and the other information supplied to me by the parties, a distinction was made between viable and non-viable GMO medical vaccines. While notification of the appeal occurred in accordance with my orders, I am not satisfied that legitimately affected persons with rights of appeal
should be deprived of the opportunity to test the correctness of the amended position
14 Ancona Properties Ltd v Auckland Council, above n 2, at [4]-[5].
in relation to use of viable GMOs in medical applications, particularly where it is not abundantly clear on the IHP’s reasoning or from the s 32 report that this was the intended position.
[20] Given this, I consider that the preferable course is to allow the appeal and grant the relief sought by consent but require the Council to serve notice on all affected submitters of my decision. They will then have the opportunity to appeal the amendment as if it is a decision of the Council pursuant to s 156(1) of the Local Government (Auckland Transitional Provisions) Act 2010.
[21] I am mindful that this creates another level of cost and delay, but on a matter as wide-reaching as the release of viable GMOs (assuming there is jurisdiction to control them, which is not before me), the full ventilation of appeal rights is not futile.
Orders
[22] The appeal and relief sought is allowed by consent.
[23] The Council shall serve notice on all affected submitters on this part of the
PAUP.
[24] Submitters shall have the right to appeal the amendment as if it is a decision of the Council pursuant to s 156(1) of the Local Government (Auckland Transitional Provisions) Act 2010.
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