Mackenzie Branch of Federated Farmers of New Zealand (Inc.) v Mackenzie District Council

 
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Decision No. [2015] NZEnvC 56

BEFORE THE ENVIRONMENT COURT

Court:

Environment Judge J R Jackson

(sitting alone under section 309(1) of the RMA)

In The Matter of the Resource Management Act 1991 and of an application for a declaration under section 311 of the Act

Between
Mackenzie Branch of Federated Farmers of New Zealand (Inc) (ENV-20 13-CHC-90)
First Applicant
and
Mackenzie District Council
Second Applicant
Appearances:

D Caldwell for Mackenzie District Council

M Casey QC, J Deny and S Goodall for Mackenzie Branch of Federated Farmers of New Zealand (Inc)

A Schulte for Fountainblue Limited and others

Application for declarations that (i) the spread of wilding pines (self-sowing pine trees) was not a ‘use’ of land for the purposes of s9 Resource Management Act 1991 (RMA), and (ii) could not be the subject of a rule purporting to control wilding spread under s76 RMA (District rules) — Environment Court had suggested in an interim decision that a plan change should incorporate a rule for the management of Exotic Wildings in the Mackenzie sub-zone which specified that no wilding trees should be allowed to grow more than 1 metre in height and to fruit/cone in that sub-zone — whether the passive (non-active intervention) spread of the wilding pines was a use of land — whether s76 permitted rules in relating to the control of such trees.

The issue was whether the passive (non active intervention) spread of the wilding pines was a use of land.

Held: The New Zealand Oxford Dictionary defined the word “use” when ‘used’ as a verb as (

  • 1. cause to act or serve for a purpose; bring into service; avail oneself of (rarely uses the car; use your discretion);

  • 2. treat (a person) in a specified manner (they used him shamefully);

  • 3. exploit for one's own ends (they are just using you);

Sense 2 was clearly active, but senses 1 and 3 might be passive. Simply owning land was exploiting it or making the land serve a purpose even if the exploitation or purpose was only the hope of use in the future. For example land could be “land-banked”, or it might be “used” passively by letting weeds or other natural activities take over in the hope of capital gain on sale in the future, or let lie fallow.

The words “any other use” in s2(a)(v) RMA (interpretation — use — any other use of land) could not be read as being in the same category of “active” uses as those referred to in (i) to (iv) of the definition. There were two difficulties. Not all “activities” in (a)(i) to (iv) were necessarily active. Paragraphs (a)(i) to (iv) listed activities which, for the avoidance of doubt, Parliament wanted to ensure were included as “uses” even though they might not be so understood in normal usage, together with “any other [natural or ordinary] use of land” in paragraph (v). Parliament did not intend there to be a unifying theme through all sets of activities referred to in the definition of use in section 2.

It was vital to look at the words of s9(3) RMA in their immediate context. The duty imposed under s9(3) was that “no person may use land in a manner that contravened a rule …” This suggested that it was not the intended use which was important but the manner of the use. The phrase “use in a manner” meant “in a way” or “to a degree”. The latter-“to a degree” — suggested that the intensity of use could come on a scale, and at a certain point of that scale the use could be unacceptable because it breached a rule in the plan.

The other meaning of “in a manner”, when that phrase was read as “in a way”, might have little or nothing to do with the land use but refer to something unrelated in essence. The use of the land could be, in some circumstances, largely-perhaps completely — irrelevant to the question whether land was being used in a manner which contravened a rule. It was the way in which the land was being used that was important, not the use itself.

The purpose of section 9(3) RMA was first, sustainable management which meant (inter alia) the “use, development and protection” of natural and physical resources. “Use” should be given a wider meaning; otherwise the word would be redundant in this crucial provision of the Act.

Second, the phrase in section 9(3) “use in a manner” was echoed in s5 RMA which confirmed that it was not the use, per se, which was to be managed, but the style of use, or the way of using the resource if it caused adverse effects.

Third, a key component of sustainable management involved “… avoiding, remedying or mitigating adverse effects of activities on the environment. “Activity” was obviously nearly synonymous with “use” ( Bayley v Auckland City Council). Activities or uses had to be picked out of the pre-existing conditions (states of affairs) as more than mere background conditions. There was nothing in the RMA which suggested the activities had to be human activities. Growing trees (even self-sown trees) was an activity. Further, s 5(2)(c) showed that not all sustainable management was of the causes of adverse effects. Avoiding some adverse effects was one management technique and remedying adverse effects was another. In the latter case it did not really matter what the cause was — an active use or a passive use — but it was the adverse effects of some background natural (not necessarily directly human induced) activities which were remedied.

The power to make rules had to be exercised having regard to the adverse effects of activities. This, combined with s5(2)(c) RMA suggested that adverse states of affairs could be remedied by treating the symptoms rather than the cause. That was particularly important when dealing with the environment because of the difficulties in identifying the many, often inter-related, causes of adverse effects on, for example, ecosystems (which were part of the environment).

A key issue in deciding the legality of a rule was whether there were possible adverse effects which would need to be managed — see s76(3). The reference to “effects” suggested that when considering methods a local authority needed to identify the antecedent conditions (or states of affairs) to the adverse effects and decide which of them were or would be causal factors which could be avoided, reduced or mitigated.

In the case of wilding conifers in the Mackenzie Basin, the preceding conditions (events, states of things) could include the existence of other land to windward (i.e. to the northwest) which contained wilding conifers, the growth of those trees to sufficient maturity to cone, a grazing pattern on the recipient land that opened up some space for seeds to germinate (but not enough stock for seedlings to be eaten) etc. None of these factors were either abnormal or free actions by people.

Section 76 however empowered symptomatic treatment of adverse effects. Further s334 imposed strict liability for offences against s9. In other words, intentions or purpose were irrelevant to “use” in s9. Taking all these considerations into account, the growing of self-sown trees came within s9(3) RMA as a way of using land, regardless of the use of the land.

In the alternative, whether s9 applied to an activity described in a (proposed) rule was not a question of interpretation but a question about the application of the rule to a particular situation. The primary issue would be to recognise the nature and scope of particular effects on the environment and to identify whether their causes contravened a (hypothetical) rule. That was a matter of fact and judgement. Alternatively a person could question the primary rule making power which was in s76 rather than in s9. If an activity was managed by a legal rule under s76 it could not be challenged (as a question of law) under s9.

It would be open to challenge a proposed rule directly under s76 by arguing that it was not to manage adverse effects of activities. However, that approach was not taken and there were no submissions before the Court. In any event any argument for invalidity would have to deal with the points made about the purpose and scheme of the RMA.

It was inappropriate to make the declarations sought. Any declarations would tend to be to the opposite effect. However, since no party opposed the declarations it was more appropriate in the circumstances simply to decline to make the declarations sought.

Application declined.

DECISION
  • A: Under section 313 of the Resource Management Act 1991 the Environment Court declines to make a declaration that the spread of (self-sown) wilding conifers:

    • (a) cannot be the subject of a rule under section 76 of the Act; and/or

    • (b) is not a “use” of land under section 9 of the Act; and

  • B: There is no order for costs.

REASONS
Introduction
The application for a declaration
1

On 19 July 2013 the Mackenzie Branch of Federated Farmers of New Zealand (Inc) (“FF”) and the Mackenzie District Council applied for a declaration:

That the spread of wilding pines is not a ‘use’ of land for the purposes of s 9 of the Resource Management Act 1991, and cannot be the subject of a rule purporting to control wilding spread under s 76 of the Act.

The grounds for the application were not set out in the application itself but were contained in the submissions filed on behalf of the First and Second Applicants.

2

Supporting evidence was lodged in the affidavits of:

  • • Mr N H Hole for the Council dated 18 July 2013;

  • • Dr K M Lloyd on behalf of Second Applicant dated 18 July 2013;

  • ...

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