Fonterra Co-Operative Group Ltd v Manawatu-Wanganui Regional Council
 NZEnvC 250
BEFORE THE ENVIRONMENT COURT
Environment Judge B P Dwyer, Environment Commissioner D J Bunting Environment Commissioner I M Buchanan
In The Matter of appeals pursuant to s 120 of the Resource Management Act 1991
B S Carruthers for Fonterra Co-Operative Group Limited
R W Gillespie in person
N Jessen for Manawatu-Wanganui Regional Council
Appeals in relation to four resource consents granted by Manawatu-Wanganui Regional Council allowing discharge of waste products into the Mangatainoka River — Fonterra also sought continuation of its permit allowing it to discharge condensate into the River via a tributary known as the Mangamutu Stream until such time as a new cooling tower and pipes to enable discharge directly into the River had been completed — common ground that the discharge was causing significant adverse effects on the Stream itself — discharge was prohibited activity but r6 purported to reserve a discretion to the council to decide if any given proposal was exempt — whether rule was ultra vires — whether there was jurisdiction to extend the deadline for cessation of discharge — whether was appropriate that discharge be continued in the short term — whether the resource consents were appropriate.
The issues were: whether r6 precluded the granting of the consents; whether there was jurisdiction to extend the deadline for cessation of discharge; whether it was appropriate that discharge be continued in the short term; and whether the resource consents were appropriate.
Held: Rule 6 was ultra vires in that it purported to reserve a discretion to the council to decide whether or not any given proposal might be exempt from operation of the rule. There was no process for undertaking the assessment and exercise of judgement which the council had sought to reserve to itself.
Further, r6 had to be void for uncertainty. It was not possible for a potential applicant considering the terms of r6 to determine whether or not any proposed activity might satisfy the tests and it was fundamental that rules of district or regional plans were sufficiently certain that a potential applicant was able to assess from reading any given rule whether or not they were subject to that rule.
Section 107 precluded a consent authority from granting consent to an application for a discharge permit which breaches certain environmental standards, unless the proposal fell within the identified exemptions. However, sl07 RMA was not a prohibited activity rule. It was applicable at the conclusion of the hearing process when a consent authority had considered all the information and evidence relating to a proposal and was exercising its discretion whether or not to grant consent. In the case of r6, the exemptions had been tacked onto a prohibited activity rule which precluded any application being made in the first instance.
In the alternative, if this was wrong, the discharge to the Stream would nonetheless meet the exceptions contained in s107(2)(a) and (b) and policy 2 of the MCWQ. Policy 2 and s107(2)(a) RMA did not require that in order to be exceptional, circumstances must be unique. The word exceptional meant unusual or not typical. The circumstances fell into the “unusual” or “not typical” category and the proposed discharge to the Stream until November 2014 therefore fitted within the exceptional circumstances category.
The normal meaning of the word temporary was “lasting for only a limited period or not permanent”. In this case, the right to discharge to the Stream would expire in November 2014. That was in a context where the maximum term for granting a discharge permit was 35 years and the council and Fonterra had agreed that to a term expiring in August 2030. The discharge was for a short, limited period of time as compared to either the maximum available or proposed terms, thereby fitting into the temporary category.
The extended period to November 2014 now requested by Fonterra was still within the 5 year period for decommissioning of the Stream discharge proposed by Fonterra in its application and accordingly remained within jurisdiction of the Environment Court. The reasons advanced by Fonterra for seeking a brief extension of the deadline were valid and reasonable (its inability to meet the council's timetable had been brought about by factors outside of its control, namely resolution of these appeals and in particular G's appeal against grant of consent). It was appropriate the deadline should be November 2014.
Although the discharges to water and land involved two separate environments governed by different planning instruments, there was unquestionably overlap between the consents. All of the consents dealt with disposal of the same waste material (condensate) from the same source. All of the proposed consents were necessary to enable an integrated approach to disposal of the condensate. Because the proposed discharge consents operated in conjunction with each other and overlapped, it was appropriate to adopt a conservative approach and bundle all of the applications and treat them all as applications for non-complying activities.
The expert evidence supported the conclusion that the actual and potential effects of discharge of condensate directly to the River would be no more than minor. There was no contrary expert evidence. In the absence of any substantive evidence to the contrary, the evidence of witnesses for the council and Fonterra was accepted that there would be negligible (if any) adverse environmental effects, including any offensive odour or spray drift, from the land based application of the combined wastewater and condensate waste streams. This was on the basis that the combined discharges complied with the conditions set out in the proposed permits. Having regard to the findings contained in the council decision and the various assessment and conclusions in evidence as to how the Fonterra proposal sat when measured against the relevant objectives and policies of the various relevant statutory instruments, the proposal was either consistent with or not contrary to those.
Considering then the effects gateway test in s104D(1)(a) RMA (particular restrictions for non-complying activities), it had been found that the discharge direct to the River, establishment of the discharge infrastructure and the discharges to land and air would have adverse effects that were no more than minor. Whilst acknowledging ongoing adverse effects for a short term to the Stream, given the proposed avoidance, remediation and mitigation measures that were to be implemented, the adverse effects of the Proposal as a whole were also minor. The proposal therefore passed the effects gateway.
In considering the policy gateway test in s104D(1)(b), it was necessary to consider relevant objectives and policies as a whole. When assessing a proposal against objectives and policies, the outcome of the assessment was often driven by conclusions which had been reached as to the effects of that proposal. Fonterra's proposals were consistent with the objectives and policies of the MCWQ and not contrary to any objectives and policies of the relevant planning instruments and accordingly passed the policy gateway.
Fonterra's proposal fell within the ambit of s104(2A) RMA (consideration of applications) which obliged the Court to have regard to the investment of the existing consent holder when considering an application affected by s124 RMA (exercise of resource consent while applying for new consent). Fonterra was seeking to improve its present system of discharge of condensate from the factory and its proposals achieved that.
Fonterra had given genuine consideration to alternative methods of discharge and discharge into other receiving environments. There was nothing in the provisions of s105 RMA (matters relevant to certain applications) which precluded the grant of consent.
The provisions of s107 RMA (restriction on grant of certain discharge permits) did not preclude the grant of consent given the findings in relation to the Stream that the discharge fell into the exceptional circumstances and temporary categories.
Ultimately the pt2 RMA (purpose and principles) consideration required a finding as to whether or not a grant of consent to the proposal advanced by Fonterra would achieve the purpose of the RMA (sustainable management of the resources in question). The Fonterra proposal was not inconsistent with the relevant provisions of s6 (matters of national importance) or s7 (other matters) RMA. In general terms the principles of the Treaty of Waitangi had been taken into account in the consent process through engagement with iwi prior to lodgement of the applications (s8).
The approval of these applications would enable Fonterra to continue the efficient operation of its dairy factory, which enabled both Fonterra and the wider community to provide for their social and economic wellbeing. The River was an important natural resource, but provided the conditions of consent agreed to by the council and Fonterra were adhered to, any adverse effects would be no more than minor and would satisfy the requirements of s5(1)(a) to (c) RMA (purpose).
Appeal by G dismissed. Appeal by Fonterra upheld.
A: Fonterra appeal as to conditions upheld.
B: Gillespie appeal against grant of consent declined.
C: Costs reserved.
On 8 August 2012, Manawatu-Wanganui Regional Council...
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