IN THE MATTER BETWEEN. Environment Judge J J M Hassan Environment Commissioner I M Buchanan. Hearing: at Hastings on 11 and 12 September 2017

Transcription

1 BEFORE TH E ENVIRONMENT COURT I MUA I TE KOOTI TAIAO 0 AOTEAROA IN THE MATTER AND BETWEEN Decision No. [2018] NZEnvC, q 1. of the Resource Management Act 1991 of an appeal pursuant to clause 14 of Schedule 1 of the Act HAWKE'S BAY FISH AND GAME COUNCIL (ENV WLG-054) Appellant AND HAWKE'S BAY REGIONAL COUNCIL Respondent Court: Environment Judge J J M Hassan Environment Commissioner I M Buchanan Hearing: at Hastings on 11 and 12 September 2017 Appearances: M A Baker-Galloway for Hawke's Bay Fish and Game Council L Blomfield for the Hawke's Bay Regional Council S Gepp for Royal Forest and Bird Protection Society of New Zealand Inc, s 274 party R Wise for Maori Trustee for Poukawa 13 B Maori Trust Board, s 274 party. M Meier for Federated Farmers of New Zealand, s 274 party Date of Decision: 4 October 2018 Date of Issue: 4 October 2018 INTERIM DECISION A: Appeal allowed only insofar as to replace the Decision Version's definition of wetland with the definition at [52]. B: Directions are made for the respondent to report with a timetable for providing updated plan provisions for approval. C: Costs are reserved and directions are made.

2 2 REASONS Introduction [1] Hawke's Bay Fish and Game Council ('HBFG') appealed the decision of Hawke's Bay Regional Council ('HBRC') on proposed Change 5 ('PCS' / 'Decision Version') to the Hawke's Bay Regional Resource Management Plan ('RRMP'). Royal Forest and Bird Protection Society of New Zealand ('RFB'), Te Tumu Paeroa (on behalf of the Maori Trustee for Poukawa, a 13B Maori Trust Board) ('MTB') and Federated Farmers of New Zealand ('FFNZ') are s274 parties to the appeal. [2] The appeal is in relation to the PCS Decision Version concerning the definition of 'wetland' and related provisions. Prior to the hearing, HBFG, RFB and HBRC agreed to modified relief. This essentially resolved matters between HBFG and HBRC. However, FFNZ supported the definition of 'wetland' in the Decision Version and, as a s274 party, opposed the original and modified relief pursued by HBFG. It raised a jurisdictional challenge, the essence of which was that HBFG's original submission to HBRC was not 'on' PCS and, hence, could not found a valid appeal. [3] The appeal was heard, both as to jurisdiction and merits, over two days in September HBFG, RFB and HBRC called expert and other evidence in support of the modified relief. FFNZ presented a case primarily directed to the matter of jurisdiction. [4] On 10 November 2017, the court issued a decision on the jurisdictional issues (,First DecisionV It explained that neither the original nor modified relief was 'fairly and reasonably raised' and hence, neither relief was within the scope of cl14(2) Sch 1 of the Resource Management Act 1991 ('RMA'). [5] However, that decision also found that the definition of 'wetland' could be modified to some extent within the scope of the appeal. On the evidence heard, including from MTB, directions were made for a judicial teleconference in anticipation of further facilitated planning witness conferencing and a possible direction for the purposes of s293 RMA (concerning Lake Poukawa mapping). Hawke's Bay Fish and Game Council v Hawke's Bay Regional Council [2017] NZEnvC 187.

3 3 [6] On 16 November 2017, the court issued a Minute for the purposes of the judicial conference. This included various observations, arising from the evidence heard, to assist the intended planning witness conferencing. Directions were also made to allow for attendance at the conferencing by ecologists who also gave evidence at the September 2017 hearing. [7] For various reasons, some months elapsed before that conferencing was undertaken. However, a Joint Witness Statement ('JWS') of the planning and ecology witnesses was produced dated 17 April This recorded an agreed position on suitable drafting of provisions (and the mapping of Lake Poukawa) and confirmation that there are no significant differences between the experts on matters that were the subject of the court's directions for conferencing. [8] On 12 July 2018, the court convened a teleconference to resolve how proceedings should be appropriately concluded. Counsel who were able to attend 2 informed the court that their clients did not seek opportunity for closing submissions in light of the agreed position reached. The matter of whether or not a s293 direction would be made was not discussed. A record of the teleconference was issued by Minute the same day. [9] On 17 August 2018, two memoranda of counsel were filed. One was a joint memorandum on the outcome of the expert conferencing and the court's 12 July Minute. It was signed on behalf of HBFG, RFB, FFNZ and HBRC ('Joint Memorandum'). The other was on behalf of MTB ('MTB Memorandum'). [10] The Joint Memorandum helpfully identifies the key consensus outcomes, reported in the JWS, on drafting matters. It sets out some associated joint submissions on various matters of drafting detail for how the court's decision could implement and direct changes to PC5. It notes some matters on which FFNZ has a different view. Finally, it attaches jointly proposed drafting and a map of Lake Poukawa for inclusion in the RRMP. [11] The MTB Memorandum sets out that party's position on any s293 direction concerning Lake Poukawa. That includes its requests to have opportunity for further 2 Counsel for MTS and FFNZ were not able to attend.

4 4 comment on any intended s293 direction before it is made and to be involved in any final determination of the 'line' that defines Lake Poukawa wetlands (Le. if the 'Singers' map needs further definition to be accurate for the RPS and regional plan components of the RRMP). It also makes recommendations for who should be notified in the event the court decides to make a s293 direction. [12] We are satisfied that the positions put by the Joint Memorandum and MTB Memorandum are fairly supported on the evidence (including the JWS). On that basis, we now proceed to determine the appeal and the s293 issues. Statutory framework Appeal scope in clause 14 Schedule 1 RMA [13] We refer to the First Decision at [27] - [37] and adopt our findings there on the nature and scope of appeal rights under ci 14 Sch 1 RMA. We are satisfied that what the Joint Memorandum proposes as changes to the PC5 Decision Version is within the scope of cl14. Public hearing [14] Clause 15(1) Sch 1 RMA directs that the court hold a public hearing into any provision or matter referred to it. That requirement has been satisfied. The court's general powers, duties and discretions [15] Section 290(1) RMA, in essence, confers on the court the same power, duty and discretion as the HBRC had in regard to the PC5 provisions under appeal. Section 290(2) empowers the court to confirm, amend, or cancel a decision to which an appeal relates (in this case, HBRC's decision concerning the appealed provisions). Those general powers, duties and discretions do not affect any specific power or duty the Environment Court has under this Act or under any other Act or regulation (s290(4». Other relevant statutory principles and directions [16] Various statutory principles and directions bear upon both the process of our consideration of the appeal and our determination. Given the extent of inter-party consensus now reflected in the Joint Memorandum (and not disturbed by the MTB Memorandum), it is unnecessary for us to go further than to record that we are satisfied

5 5 we have duly considered and abided: (a) (b) (c) (d) the directions and requirements for the evaluation of the proposed RPS and plans in ss 32-32A; the specifications in ss 59-62, 63, and 80 as to the purpose, preparation, and content of RPS, regional plans and combined RPS/regional planning instruments (including as to the intended hierarchical relationships between objectives, policies, rules and other methods); the direction in s290a to have regard to the HBRC's decision; and Pt 2 RMA. Section 293 power to order change to proposed policy statements and plans [17] Section 293 supplements the above-noted powers in s290 by specified powers to make certain directions to the local authority responsible for a proposed policy statement or plan. It relevantly provides: (1) After hearing an appeal against, or an inquiry into, the provisions of any proposed policy statement or plan that is before the Environment Court, the court may direct the local authority to- (a) prepare changes to the proposed policy statement or plan to address any matters identified by the court: (b) consult the parties and other persons that the court directs about the changes: (c) submit the changes to the court for confirmation. (2) The court- (a) must state its reasons for giving a direction under SUbsection (1); and (b) may give directions under subsection (1) relating to a matter that it directs to be addressed. [18] Section 293 operates in tandem with ci 15(2) Sch 1 RMA to the effect that, if the court makes a direction under s293(1), the local authority must comply with it. [19] In effect, it provides some extension to the court's jurisdiction in that it enables the court to direct changes to a proposed policy statement or plan that go beyond the scope of appeals before it. However, in Federated Farmers of New Zealand (Inc) Mackenzie Branch,3 the High Court emphasised that this power should be only exercised 3 Federated Farmers of New Zealand (Inc) Mackenzie Branch v Mackenzie District Council [2014] NZHC 2616; (2014) 18 ELRNZ 712; [2015] NZRMA 52 at [121].

6 6 cautiously and sparingly. That is in part because exercise of the power deprives parties of the right to be heard by the local authority at first instance. Further, the High Court noted the importance of the Environment Court not unnecessarily stepping into the planning arena. It observed that any exercise of the discretion must be consistent with the court's judicial role. [20] It held that the 'narrow exceptions' to the orthodox position on scope included (but were not limited to) situations where there is: 4 (a) (b) (c) an inadequate s32 report; a failure to comply with s74; or a more than minor deviation from one of the matters referred to in s293(3), whether or not raised on appeal. Rejection of appeal and confirmation of Decision Version in toto inappropriate [21] At [124], the First Decision sets out the available range of outcomes in the' determination of the appeal. In light of the evidence, the Joint Memorandum and the MTB Memorandum, we find it would be inappropriate to reject the appeal and confirm the Decision Version in toto (Le. we reject the option in [124](a)). Option [124](b)(i) the most appropriate of the remaining options [22] The remaining options, within the available scope of the appeal, are as described in [124](b) of the First Decision and are repeated here for convenience: (b) allowing the appeal with the following potentially different outcomes for the RPS and regional rules components of the RRMP: (i) modifying the meaning of 'wetland' for the RPS component such that the previous Glossary definition under the pre-existing RRMP is restored; (ii) modifying the meaning of 'wetland' for the regional plan component such that an appropriately worded exemption remained as sought in HBFG's originating submission; (iii) mapping specified wetlands, but to reflect those described different potential outcomes for the RPS and regional plan components. 4 Federated Farmers Mackenzie Branch at [148].

7 7 [23] The Joint Memorandum leaves for the court the ultimate determination of the most appropriate option (offering recommended drafting for each option). [24] We are particularly mindful of what the First Decision describes as the development history of the Decision Version. That includes an unfortunately confusing public notice that could well have misled readers. That is in the sense that it would appear to describe PC5 as pertaining only to the RPS components of the RRMP (whereas, in fact, the new definition of 'wetland' proposed by the notified PC5 applied to both the RPS and regional plan components of this combined instrument, albeit qualified by footnotes to some provisions). [25] We are mindful of the importance of sound first instance plan making processes for sound planning outcomes. That is in the sense that the RMA assigns responsibility to regional councils (and territorial authorities) to prepare proposed plans, and notify them, in order to allow for rights of submission and further submission to be exercised, so as to ultimately ensure plans are for and on behalf of communities they apply to. Properly accurate public notification is an essential aspect of this. Where public participation is seriously compromised by flawed notification, Environment Court appeal processes have only a limited capacity to remediate that. While appeals are de novo and the court inherits the same powers, duties and discretions of the Council as the primary decision-maker, that is only to the extent that proposed plan provisions and matters are referred to the court by appeal(s) (ci15, Sch 1). Nor can any serious compromise in first instance plan making processes be satisfactorily remediated through s293. [26] We do not go so far as to find that the public participation processes that informed the PC5 Decision Version were so compromised by the flaws in the public notice. However, there is a potential risk that they were, in the sense that the public notice could have disarmed some to assume that PC5 would not result in any change to the regional plan component of the RRMP. [27] Those considerations favour an approach that confines any RRMP changes, by this appeal, to the RPS component of the RRMP. Insofar as this would mean the regional plan component does not fully give effect to the RPS component of the RRMP, we are satisfied that there is no legal requirement to ensure that it does by this appeal process. Rather, any such statutory responsibility falls to the HBRC. In particular, HBRC would. be free to institute a further change to the RRMP to address the regional plan in a way that properly allows for first instance public participation.

8 8 [28] Furthermore, we find 'option (b)(i)' (at [22]) is best supported on the evidence before us. As the First Decision explains, by the time of the hearing, HBFG, RFB and HBRC each favoured the modified version of HBFG's relief and their evidence was directed to support that modified relief (which the First Decision found beyond scope, as was the original relief). On the other hand, the JWS expresses an agreed preference for a definition of 'wetland' just for the purposes of the RPS (the substance of which we address at [39]). [29] Therefore, leaving aside s293 RMA for the present, we find that the most appropriate of these options within the scope of the appeal is (b)(i), i.e. modifying the meaning of 'wetland' for the RPS component such that the previous Glossary definition under the pre-existing RRMP is restored. [30] For the reasons given, therefore, we decline the appeal insofar as it seeks any change from the Decision Version of the regional plan provisions of the RRMP (other than is required to make consequential changes to the Decision Version definition such as to provide for separate RPS and RRMP definitions). Whether a s293 direction is appropriate [31] We have given careful consideration to whether we should make the signalled s293 direction for the mapping of Lake PoukaWa for the purposes of the entire RRMP. As recorded in the First Decision, we find the evidence of Mr Hapuku to strongly demonstrate the very significant relationship that the people of Te Hauke (and MTB) have. to Poukawa WaiO, and their related kaitiakitanga responsibilities. [32] However, we are also mindful that s293 powers are to be exercised sparingly. Ultimately, we find it more appropriate to leave for the Council to consider these matters, mindful of their RMA duties and responsibilities as the statutory functionary for plan changes. Insofar as there are inadequacies in the s32 report or in compliance with s74, we find the overwhelming consideration is to ensure due process. A full Sch 1 process is more appropriate in this case than a s293 process. [33] Therefore, we decline to make s293 directions.

9 Most appropriate definition of 'wetland' for the RPS component 9 [34] The Decision Version specified the following new definition of 'wetland' (across both the RPS and regional plan components of the RRMP and with deletion offootnotes): Wetland includes permanently or intermittently wet areas, shallow water, and land water margins that support a natural ecosystem of plants and animals that are adapted to wet conditions. For the purposes of this Plan, a wetland is not: a) wet pasture or cropping land b) artificial wetlands used for wastewater or stormwater treatment c) farm dams and detention dams ca) reservoirs, dams and other areas specifically designed and established for the construction and/or operation of a hydro-electric power scheme. [35] The Decision Version definition of 'wetland' is not supported by the evidence, including the JWS. In any case, considering only what is appropriate for the RPS, the Decision Version definition is inappropriate for the purposes of RPS objectives and policies. Specifically, we find the various exclusions in that definition (Le. a) - ca)) would be either undermining of the intentions of, or unnecessary for, various RPS objectives and policies. [36] By way of illustration of that point, we refer to RPS objective 15: The preservation and enhancement of remaining areas of significant indigenous vegetation, significant habitats of indigenous fauna and ecologically significant wetlands. [37] For the definition to exclude from that objective any 'wet pasture or cropping land' could potentially compromise achievement of the objective. In the context of how an RPS objective functions, there is no need for the remaining exclusions. [38] Therefore, we find the Decision Version fails to give effect to the RPS, contrary to s75(3) RMA. It is an inappropriate definition for the purposes of the RPS component of the RRMP. [39] The JWS proposes the following revised definition of 'wetland', but confined to the RPS component of the RRMP: Wetland includes permanently or intermittently wet areas, shallow water, and land water margins that support a natural ecosystem of plants and animals that are adapted to wet

10 10 conditions And includes the wetland mapped in Schedule [insert number -TBG] and commonly known as: a) Lake Whatuma (previously known as Hatuma) b) Road north swamp c) Wanstead Swamp d) Lake Poukawa. [40] The first part of the JWS version replicates the definition of wetland in s2( 1) RMA. In essence, the intention of the JWS version is to apply the RMA definition but add a specification to remove doubt that the scheduled mapped wetlands come within the definition for the purposes of relevant RPS objectives and policies. [41] We find the JWS version of the definition more in keeping with the intentions of the RPS objectives and policies that use the word 'wetland'. Specifically, the RMA definition of wetland is appropriate for the proper application of related RPS objectives and policies that generally favour wetland protection. [42] For those reasons, and to assist clear understanding and application of the RPS, we also find it appropriate for the definition to reference by name, and define by map, the extent of certain identified wetlands intended to be covered by the RPS provisions. [43] There is a degree of drafting infelicity in the JWS version. It repeats the word 'includes' and is circular inasmuch as it also uses the word 'wetland' in the body of the definition (i.e. 'the wetland mapped'). This results in unhelpful uncertainty as to whether the areas then listed must also meet the first part of the definition to qualify. So long as the mapping is accurately undertaken to capture the proper wetland areas, it would be better to simply refer to 'areas' without repeating the word 'wetland'. A further infelicity, picked up in the Joint Memorandum, is that the JWS definition does not reflect its intention to be confined to the RPS. All such drafting issues are readily able to be overcome. [44] The Joint Memorandum offers various "examples" of how to integrate the JWS. version into the RRMP. It emphasises that these are intended as "examples only" to assist the court. [45] It explains that some examples "include the wording of exemptions to the definition that were otherwise not disputed or challenged (e.g. farm dams, hydro related activities)". However, these changes are not simply refinements to the wording of the

11 Decision Version. For example, the Decision Version does not: 11 (a) qualify 'artificial wetland' with 'specifically designed, installed and maintained'; or (b) refer to 'land drainage canals and drains', 'reservoirs for fire-fighting, domestic or municipal water supply' or 'beautification or recreational purposes' as classes of exempt 'artificial wetlands'. [46] While these further exemptions may "not be disputed", our jurisdiction is confined by the scope of the appeal (a matter we address in detail in the First Decision). [47] The Joint Memorandum explains that some of its offered examples (e.g. examples 3 and 4) are not agreed by all signatory parties. It goes on to record that FFNZ considers that the First Decision "requires an exemption for paddocks in regional rules". It further records that FFNZ differs from the other signatories to the Joint Memorandum in that it considers the drafting examples the Memorandum offers "do not provide" for such an exemption. It records that FFNZ sees a way of achieving that exemption would be to retain the original footnotes to the regional rules. On the other hand, the Joint Memorandum specifies' that "the appeal did not seek reinstatement of the footnotes". [48] These points of difference concerning the examples, the footnotes and the appeal further demonstrate the difficulty in any decision that departs significantly from the Decision Version insofar as the regional plan component of the RRMP is concerned. [49] For the reasons we have given, we find that we should confine any substantial changes to the definition of 'wetland' to the RPS only. For those reasons, we also find that, insofar as the appeal seeks substantial changes to the regional plan, it should be declined. To that extent, we find we should confirm the Decision Version other than to the extent that clearly distinguishes the RPS and regional plan components of the definition of 'wetland'. Consistent with that, we decline to make the various further changes to the definition offered in the examples in the Joint Memorandum. For the reasons we have given, that includes any changes that effect a mapping of Lake Poukawa for the regional plan provisions (or removal of regional plan footnotes). [50] Looking broadly at resource management principles, such an outcome may well not be optimal for the RRMP as a whole. However, as we have explained, an important constraint on how far we may go is the proper scope, as determined by the First Decision,

12 12 of the appeal. Further, and importantly, we find the limited decision we make best assists HBRC to fulfil the statutory responsibilities it fell short of in notifying the RRMP. It is a matter for HBRC how it now fulfils those statutory responsibilities. Definition of 'wetland' for inclusion in the RRMP [51] Therefore, within the limits of the appeal, we find the most appropriate definition of 'wetland' in the RRMP: (a) (b) (c) applies the RMA definition subject to separate qualifiers, one for the RPS and the other (as is provided by the Decision Version) for the regional plan; for the RPS, includes reference to the four mapped areas (Lake Whatuma (previously known as Hatuma), Road north swamp, Wanstead Swamp, Lake Poukawa; and for the regional plan, retains (without substantial modification) the exclusions that were specified in the Decision Version. [52] That revised definition is as follows: WETLAND (a) in the RPS (only), it includes: (i) permanently or intermittently wet areas, shallow water, and land water margins that support a natural ecosystem of plants and animals that are adapted to wet conditions; and (ii) those areas mapped in Schedule [insert number -TBC] and commonly known as: Lake Whatuma (previously known as Hatuma); Road north swamp; Wanstead Swamp; Lake Poukawa. (b) in the regional plan (only), it includes permanently or intermittently wet areas, shallow water, and land water margins that support a natural ecosystem of plants and animals that are adapted to wet conditions, except for: (i) wet pasture or cropping land; (ii) artificial wetlands used for wastewater or stormwater treatment; (iii) farm dams and detention dams; (iv) reservoirs, dams and other areas specifically designed and established for the construction and/or operation of a hydro-electric power scheme.

13 13 Conclusion and directions [53] Therefore, to the limited extent we have described, the appeal is allowed but is otherwise declined. [54] The court requires an updated full set of provisions, showing by tracked change, the changes required to incorporate the revised definition at [52] into the RRMP (including insertion of its schedule number). Once that is received, the parties can anticipate a final decision will issue in essence to approve the provisions and direct their inclusion in the RRMP. [55] As a first step to those ends, HBRC is directed to file within ten working days of the date of this decision, a memorandum of counsel specifying a date by which it will provide the updated tracked change provisions for approval in our final decision. Costs [56] Costs are reserved. Any party seeking costs is to file a proposed timetable direction for applications and responses, within ten working days of the date of this decision. For the court: J J M Hassan Environment Judge