Mackenzie Branch of Federated Farmers of New Zealand (Inc.) v Mackenzie District Council
| Jurisdiction | New Zealand |
| Judge | J R Jackson |
| Judgment Date | 01 April 2015 |
| Neutral Citation | [2015] NZEnvC 56 |
| Date | 01 April 2015 |
| Court | Environment Court |
In The Matter of the Resource Management Act 1991 and of an application for a declaration under section 311 of the Act
Decision No. [2015] NZEnvC 56
Environment Judge J R Jackson
(sitting alone under section 309(1) of the RMA)
BEFORE THE ENVIRONMENT COURT
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.
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
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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:
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(a) cannot be the subject of a rule under section 76 of the Act; and/or
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(b) is not a “use” of land under section 9 of the Act; and
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B: There is no order for costs.
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.
Supporting evidence was lodged in the affidavits of:
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• Mr N H Hole for the Council dated 18 July 2013;
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• Dr K M Lloyd on behalf of Second Applicant dated 18 July 2013;
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• Mr A E Tibby for Fountainblue Limited dated 16 July 2013.
The application was only served on the parties to the appeals already before the court because it arose as an interlocutory matter 1 in the course of those appeals. Unfortunately that has the result that no party argued against the declaration. All three parties who appeared supported it. In other words, there is no real dispute before the court. That would usually be regarded as of real significance to the court's discretion as to the relief that should be granted. However, Mr Casey QC submitted strongly that the
court should consider the application and make the declaration even in the absence of argument to the contraryPlan Change 13 (“PC 13”) was notified by the Council on 19 December 2007, so those proceedings have been considered under the Act as at that date. One consequence is that the 2009, and subsequent, amendments to the Resource Management Act 1991 (“the RMA” or “the Act”) do not apply to PCI3. That is important because the definition of “use” in section 9(4) of the RMA was repealed and substituted by section 4(3) Resource Management (Simplifying and Streamlining) Amendment Act 2009. A complication is that counsel for FF gave their submissions on the basis of the post-2009 definition of “use”. I will consider the post-2009 form of the RMA in this decision.
Wilding conifers spread naturally. When introduced conifers are sufficiently mature, they may produce viable seed which is dispersed — usually by wind 2 — from parent trees. If seed falls favourably it germinates and grows to establish new trees, which in turn produce more seed 3. The main wilding tree species in the Mackenzie Basin are 4: Lodgepole pine Finns contorta, Corsican pine Finns nigra subsp. laricio, Ponderosa pine Finns ponderosa, Larch Larix decidua, Douglas-fir and to a lesser extent Scots Pine Finns sylvestris.
The court noted in its first decision on PC 13 — High Country Rosehip Orchards Limited and Ors v Mackenzie District Council (“High Country Rosehip”) 5— that a potential legal difficulty with management of wilding conifers in the Mackenzie Basin Sub-zone is 6 that:“… the trees are not planted — which involves direct human agency — they are self-sown …”. It returned to the issue later and compared wilding conifers to weeds 7:
We heard no argument about this, but we have thought about the issue a little to be comfortable that we have jurisdiction. “Use” of land is defined in section 9(4) [of the pre-2009 version of the RMA] as meaning (relevantly):
…
(a) Any destruction of, damage to, or disturbance of, the habitats of plants or animals…; or
…
(e) Any other use of land …
We are inclined to think that letting weeds grow is “any other use of land” just as growing grass or breeding stock is a use of land. We also consider that allowing weeds to propagate and spread is a use of land in the sense that it causes damage to and/or disturbance of the habitats of other plants or animals. Consequently it is within a local authority's power to impose not only rules as to what tree species may be planted, but also managing the spread of wilding trees.
Consequently, the court's provisional recommendations on PC 13 suggested a new rule regarding “Exotic Wildings” in the Mackenzie Sub-zone. The wording suggested 8 was that no wilding trees of the identified species should:
… be allowed:
(a) to grow more than 1 metre in height;
(b) to fruit/cone
— in the Mackenzie Basin Subzone …
In the Sixth Decision 9 dated 1 November 2013 the court accepted there was no jurisdiction to introduce policies and implementing rules on wilding conifers. While that decision has apparently not resolved the legality issue because the application has not been withdrawn, it has the result that there is no proposed rule before the court.
However, the declaration sought does not refer to the (now discarded) proposed rule but raises issues which the applicants claim arises out of the passage quoted from High Country Rosehip: whether the spread of wilding conifers is a “use” of land within
The Council accepts that wilding spread is a significant practical issue and a definite threat to the ecology of the Mackenzie Basin. It also acknowledges that it has a statutory role to manage the effects of land use, which includes the spread of wilding pines as an effect of activities such as forestry or land development. Neither of the applicants accepts the court's analysis in the First (Interim) Decision that the spread of wilding pines is a “use” of land in itself. In summary, the argument for the applicants is:
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(a) the meaning of “use” of land in the context of section 9 requires an element of physical activity or human action;
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(b) the spread of wilding pines is not a “use” of land per se as it lacks the necessary element of physical activity or human action;
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(c) consequently, the spread of wilding pines cannot be the subject of a rule under section 76 of the Act that purports to control wilding spread;
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(d) to take an alternative view runs counter to the accepted principles of statutory interpretation and established case law.
Section 9(3) of the RMA — since 2009 — states 10 (relevantly):
9 Restrictions on use of land
…
(3) No person may use land in a manner that contravenes a district rule unless the use—
(a) is expressly allowed by a resource consent; or
(b) is allowed by section 10; or
(c) is an activity allowed by section 10A.
…
Since 2009 the definition of “use” has been removed from section 9(4) and it has been re-defined in section 2 of the Act as follows 11:
use,—
(a) in sections 9, 10, 10A, 10B, 81(2), 176(l)(b)(i), and 193(a), means—
(i) alter, demolish, erect, extend, place, reconstruct, remove, or use a structure or part of a structure in, on, under, or over land:
(ii) drill, excavate, or tunnel land or disturb land in a similar way:
(iii) damage, destroy, or disturb the habitats of plants or animals in, on, or under land:
(iv) deposit a substance in, on, or under land:
(v) any other use of land; and
(b) in sections 9, 10A, 81(2), 176(1)(b)(i), and 193(a), also means to enter onto or pass across the surface of water in a lake or river.
Section 31 sets out the functions of a council as being (relevantly):
31 Functions of territorial authorities under this Act
(1) Every territorial authority shall have the following functions for the purpose of giving effect to this Act in its district:
(a) …
(b) the control of any actual or potential effects of the use, development, or protection of land, including for the purpose of—
(i) …
…
(iii) the maintenance of indigenous biological diversity:
…
Section 76 states (relevantly):
76 District rules
(1) A territorial authority may, for the purpose of—
(a) Carrying out its functions under this Act; and
(b) Achieving the objectives and policies of the plan,—
Include rules in a district plan.
(3) In making a rule, the territorial authority shall have regard to the actual or potential effect on the environment of activities including, in particular, any adverse effect…
(4) A rule may—
(a) Apply throughout a district or part of a district:
(b) Make...
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