Photo: RNZ / Nate McKinnon
The High Court has ruled Canterbury's regional council erred when it allowed farms to discharge nitrates and other pollution without resource consents, but stopped short of ordering it to change the rule.
The decision comes as the region grapples with increasing levels of nitrate in its waterways, and the effects on human and environmental health.
The Environmental Law Initiative (ELI) asked the court to quash a regional plan rule which allowed some discharges from farming - such as nitrates and phosphorus - to be classed as permitted activities (not requiring resource consents) but the judge found too much had time had passed since the plan went into force.
The judgement, released on Monday, confirmed the council's rule making fell short of the law and went to the heart of Canterbury's current nitrate crisis, ELI research and legal director Dr Matt Hall said.
Justice Mander Photo: Pool / NZ Herald / George Heard
Council's rule making found lacking
Justice Mander found the regional council, Environment Canterbury, failed to properly consider and apply section 70 of the Resource Management Act (RMA) when it included the rule allowing some farming nutrient discharges as permitted activities.
Section 70 requires consideration of a number of points, including whether a rule could have any significant adverse effects on aquatic life.
The rule - rule 5.63 (Incidental Nutrient Discharges) - had "cemented the conditions for ongoing intensive farming even as nitrate pollution was already mounting", Hall said.
ELI argued the rule breached the RMA, was unlawful and outside the council's power.
By permitting discharges without adequate evidence the farmers would not breach minimum pollution standards, the rule removed a key safeguard, green-lighting further intensive farming in catchments already under stress, and locking in higher pollution loads, Hall said.
The organisation sought the removal of the rule, as well as other declarations about the law, but the court declined.
The RMA has clear prohibitions on the type of rules that can be included in plans in relation to fresh water, and the council "was not able to show how it stepped through the requirements of Section 70 or provided any reasons for why it deemed that Section 70 was met", Hall said.
The court found records from the council's regional plan hearings did not demonstrate it had sufficient evidence to conclude certain severe effects, including significant adverse effects on aquatic life, were not likely to arise from the rule.
Justice Mander noted the council had been "put on notice" during the hearings, given "clear controversy and competing professional views expressed by expert witnesses" on the health of the region's waterways, and potential impacts of nutrient discharge, putting questions about the plan's compliance with section 70 "clearly in play".
'Systemic failings'
Hall said it was "extremely concerning" the council did not meet the law in its planning process, something that had been found to differing extents in other ELI cases.
Llast year, the High Court ruled the council unlawfully granted a discharge consent to the Ashburton Lyndhurst Irrigation Ltd (ALIL) irrigation scheme, quashing the consent. Earlier this year, it found ECan made a material error of law in granting a consent to the Mayfield Hinds Valletta (MHV) irrigation scheme, but declined to overturn the consent.
"We've taken three cases now that relate to ECan decision making. And each of those cases, to different degrees, show problems with how ECan has applied to law, and this is in the context of a systemic failing ... of environmental outcomes.
"In this case, the court's been clear ECan did not discharge its statutory responsibility. To me, that's a very important message for ECan to properly take on board, and in any new legal framework that has to be completely front of mind - for the regulator to be totally on top of its legal responsibility."
Delays and accountability
While the court's finding the council failed to consider the RMA when including the rule would normally make the rule subject to review, due to another part of the RMA - section 83, which only allows challenges to a regional plan in the three months after the plan becomes operative - too much time had elapsed, the court found.
ELI argued that rule applied to procedural issues rather than substantive ones, such as in this case.
"Even though the rule was made 12 years ago, it remains in force and it is central to the nitrate crisis people across Canterbury are experiencing today."
"The court has found there's been a failure to abide by a clear provision in the Act. So if that is the law as it stands now, that essentially once you've been through the Schedule 1 [plan-making] process and the plan's been made, it can't be challenged even if there are fundamental areas of law [at stake], that's concerning and it's something we will be examining quite closely," Hall said.
Photo: Adam Simpson
The council submitted the proceedings came almost eight years after it approved the regional plan, and any changes would have significant consequences for those who had relied on the rule, including potentially requiring farmers to go through lengthy and expensive resource consent processes.
It told the court there was "no evidence" of any causal impact from the rule being included or that its continued application would result in environmental damage.
Neither party knew how many people could be affected, because those currently relying on the rule to discharge nutrients do not need to apply for consent.
In his decision, Justice Mander found section 83 barred ELI's challenge, but even if it had not, the proceeding centred on "an administrative decision made some 10 years ago about a rule that formed part of a highly detailed and complex regulatory scheme which largely no longer applied" because the council had since added specific sub-regional rules for at-risk catchments.
Hall said where limits were in place there needed to be work done to ensure they were met.
"We have to actually change some of the activities on the ground which are contributing, and in many cases, have already surpassed those limits, in red zones in Canterbury. We can't keep a situation going where the council has limits that are clear and part of the law, but it's not actually changing the activity or setting the framework...
"We can't ignore reality, biological and ecological reality."
He said while the ruling was fairly technical, it boiled down to accountability - "holding regulators to account and implementing the existing law, and here the court's found a failure to do that."
According to the most recent Stats NZ data, Canterbury has the largest amount of irrigated agricultural land (480,000 hectares) in the country, and accounted for 70 percent of the country's total dairy farming irrigation.
The council's most recent annual groundwater testing showed nitrate increasing in 62 percent of 300 test wells.
In September, the council narrowly voted to declare a nitrate emergency.
RNZ has approached the regional council for comment.
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