Case law

The courts have been required to consider situations where the planning process had reached the appeal stage before the NPSFM entered into effect. The High Court held that there is no obligation to attempt to give effect in the course of the appellate process. 2032  Similarly the Environment Court has allowed amendments to a regional plan to specify that an exceedance of an allocable flow did not represent over-allocation for the purposes of the NPSFM, in a situation where the NPSFM was promulgated well into the appeals process. 2033

In Wakatu Inc v Tasman District Council [2012] NZEnvC 75 the Environment Court noted that Tasman Resource Management Plan had not yet been changed to reflect the NPSFM and for this reason the Court stated that in the event of any conflict they would prefer the directions set out in the NPSFM.

In Rational Transport Society Inc v New Zealand Transport Agency [2012] NZRMA 298 the appellant contended that the a finding that the condition of the Ration, Horokiri and lower Pauatahanui Streams was degraded meant that there was a situation of over-allocation and the Board of Inquiry was thus required to consider whether the Plan Change would frustrate the requirement to improve the quality of those water bodies. The High Court stated that there is no over-allocation unless freshwater objectives and limits have been set and are not met. The High Court found that the Plan Change would not frustrate the Regional Council statutory responsibility to give effect to the NPSFM, but in any event that the decision maker on a resource consent application would have full discretion to grant or decline the resource consent allowing it to give effect to the NPSFM.

In Ngāti Kahungunu Iwi Inc v Hawke’s Bay Regional Council [2015] NZEnvC 50 the case centered on regional policy statement objectives of the Hawke’s Bay Regional Resource Plan that originally required:

  • no degradation of existing groundwater quality in Heretaunga and Ruataniwha Plains aquifers; and
  • the maintenance or enhancement of groundwater quality in [other] aquifers in order that it is suitable for human consumption and irrigation without treatment, or with treatment where necessary because of natural water quality.

The regional council wanted to remove those objectives.The Environment Court rejected the council’s changes.  It found:

  • That the finding that the Resource Management Act (RMA) requirement on regional councils to maintain and enhance water quality is mandatory, even where historical activities may cause future degradation of water quality.
  • That maintaining and enhancing “overall” water quality does not allow an “unders and overs” approach where some water is allowed to degrade on the basis that other water within the region will be commensurately enhanced.
  • That protecting water from further degradation and improving it over time is necessary to provide for the relationship of Māori and their culture and traditions with their ancestral water (section 6(e) RMA), and also objectives and policies of the NPSFM which provide for the involvement of iwi and hapū, and to ensure that tāngata whenua values and interests are identified and reflected, in freshwater management and decision‑making.

 The Court’s finding regarding “overall” water quality may need to be read in light of the 2017 amendments to the NPSFM which expressly orivide for some averaging within a freshwater management unit, but the findings remain otherwise relevant.

In Wellington Fish & Game Council v Manawatu Wanganui Regional Council [2017] NZEnvC 37 declaration proceedings were initiated on the basis that the council was issuing consents for intensive farming with nitrogen leaching figures significantly over those identified as necessary to achieve the Plan’s water quality outcomes.  In addition, resource consents were being issued with no assessment of environmental effects, no assessment against the relevant One Plan or National Policy Statement on Freshwater Management provisions.  The Court held that the Council’s approach was not consistent with the law. The Council had not been working within freshwater limits.

In Infinity Investment Group Holdings Ltd v Canterbury Regional Council [2017] NZEnvC 36 the Environment Court declined an application to take water from a Canterbury water body.  It considered many of the NPSFM provisions (pre-2017 changes) in some detail, in particular Policies B5 and B7.  Policy 5 of the NPS-FM 2014 required the Court to ensure that environmental outcomes (set in regional plans) will not be likely to be exceeded. It held that in fact, the water quality outcomes in the plan were already exceeded so there would be further degradation: “Exactly the opposite of Policy 85 will be achieved if we grant consent to Infinity” (at [311]).  It interpreted B7 as requiring that the Court determine:

  •  if there is a possibility of an adverse effect, is it "feasible and dependable" that the adverse effect would be avoided?
  • To what extent would granting Infinity's application adversely affect the ecosystems of the relevant water body?

It found that the proposal, if granted, would in a small way add to the waterbody’s deterioration with the result being that important policies in the NPS-FM 2014 would not be achieved (at [323]).

  1. Horticulture New Zealand v Manawatu-Wanganui Regional Council [2013] NZHC 2492

  2. Carter Holt Harvey Ltd v Waikato Regional Council [2011] NZEnvC 380

Last updated at 1:09PM on November 17, 2017