High Court Allows Appeals on the Tukituki Decision

18 Dec 14

The High Court has decided that the Board of Inquiry made material errors in its decision on Plan Changes to the Hawke’s Bay Regional Plan for the Tukituki Catchment and associated resource consents for the Ruataniwha Water Storage Scheme[1]. These proposals seek to address water quality and allocation issues on the Ruataniwha Plains. Appeals were lodged by Fish and Game, Environmental Defence Society, and Forest and Bird.

To address water quality issues, the Board of Inquiry had included in the Regional Plan limits for Dissolved Inorganic Nitrogen (DIN) in each of five water management zones. The Board’s draft report contained permitted activity rules, but farms would require resource consent if they caused or contributed to excesses of the specified levels of DIN entering the catchment area.

Following submissions from the Regional Council that this rule would result in the “unintended consequence” of approximately 615 farms requiring resource consent, the Board of Inquiry amended the rule to provide that farms are deemed not to be contributing to the specified levels of DIN entering the catchment area if the farm complies with nitrogen leaching rates based on the farm’s land use capability, as specified in another rule.

The High Court referred to this as the “factual deeming provision”. The Court found that it would create a factual fiction by deeming that farms were not causing or contributing to exceedance of the DIN limits when in fact they were. The effect of the provision was that farms would no longer have to comply with the DIN limits provided they comply with the specified leaching rates.

The High Court held that the change to the rule failed to properly apply section 5(2) of the RMA because, where a farm causes or contributes to the specified DIN limits being exceeded but nevertheless complies with the nitrogen leaching limit, the Regional Council will be unable to require farm owners to avoid, remedy or mitigate their contribution of DIN entering waterways in the catchment area.

The High Court also held that the Board of Inquiry failed to give effect to the National Policy Statement for Freshwater Management 2011 (Freshwater NPS), including objectives to safeguard ecosystem processes and freshwater ecosystems, and to maintain the overall quality of freshwater within a region while improving the water quality in over-allocated waterbodies. The Court found that although the Board of Inquiry clearly considered the Freshwater NPS and appreciated how the DIN limits it was setting would ensure compliance with it, introduction of the factual deeming provision substantially dismantled the effectiveness of the DIN limits as a means to giving effect to the Freshwater NPS.

The High Court also confirmed that the Board of Inquiry breached its duty to re-consult parties when it redrafted the rule following submission from the Regional Council. The final version of the rule was materially different from that contained in the draft report, no party had sought that drafting and no party had an opportunity to make submissions on the new version.

Finally, the High Court found that as conditions of the resource consent for the Ruataniwha Water Storage Scheme were drafted to reflect the defective rule, those conditions would necessarily require changes following amendment of that rule.

The Board of Inquiry has been directed to reconsider and change the rule, to give effect to section 5, the Freshwater NPS and to avoid creation of a factual fiction. The Board has also been directed to amend the relevant conditions of consent for the Ruataniwha Water Storage Scheme.

For further information please contact Jen Crawford, Maree Baker-Galloway or Sarah Eveleigh.

PDF version : High Court allows appeals on the Tukituki decision

1. A summary of the Board of Inquiry’s decision is provided in our earlier article.