Royal Forest and Bird Protection Society of New Zealand Incorporated v Waitaki District Council and Another

JurisdictionNew Zealand
CourtHigh Court
JudgeHon. Justice French
Judgment Date20 August 2012
Neutral Citation[2012] NZHC 2096
Docket NumberCIV-2011-476-000350
Date20 August 2012

[2012] NZHC 2096

IN THE HIGH COURT OF NEW ZEALAND

TIMARU REGISTRY

CIV-2011-476-000350

Under Judicature Amendment Act 1972

In the Matter of an application for review of certificates of compliance granted under s 139 Resource Management Act 1991

Between
Royal Forest and Bird Protection Society of New Zealand Incorporated
Plaintiff
and
Waitaki District Council
First Defendant

and

Five Rivers Limited
Second Defendant
Appearances:

Q A M Davies for Plaintiff

M R Garbett for First Defendant

E J Chapman and S Goodall for Second Defendant

Application for judicial review of a decision by the first defendant council to issue a certificate of compliance to second defendant under s139 Resource Management Act 1991 (consent authorities to issue certificate of compliance) for farming, construction and irrigation purposes — application for an order under s4(2) Judicature Amendment Act 1972 (an order that a decision was invalid) to have the certificate of compliance set aside — whether irrigation constituted vegetation clearance — whether the first defendant had sufficient information to issue the certificate.

Held: Irrigation did not come with the Plan's definition of vegetation clearance. The definition clearly contemplated that not every activity which involved felling, clearing or modification of vegetation would constitute vegetation clearance for the purposes of the Plan. Had the draftsperson intended that the list of mechanisms was not exhaustive, they would have used the word “includes” rather than “means”. There were a number of farming activities that could impact on indigenous vegetation and yet they were not within the definition.

The words “spraying” and “cultivation” were not defined in the Plan and should be given their ordinary and natural meaning. The natural and ordinary meaning of spraying, in the context of vegetation clearance, had to mean spraying (forcing out of a container in a spray) a liquid preparation of herbicide. Irrigation was a vitally important and highly contentious issue in the Waitaki District. The word “irrigation” was specifically used throughout the Plan and was treated as an activity in its own right. Had irrigation been intended to be included, the draftsperson would have made specific reference to it instead of relying on a strained interpretation of spraying and cultivation that was contrary to general and farming understanding. While sustained irrigation was not a natural occurrence, the other mechanisms involved a far greater degree of direct physical interference, and the point at which clearance or modification had occurred was generally clear and easy to identify.

Before a certificate could be issued under s139 RMA, a consent authority had to be satisfied there was compliance and that it had to have sufficient information in order to be able to make a thorough comparison of the proposal with the applicable rules. What amounted to sufficient information depended on the nature of the proposal and the particular rules in question. A thorough comparison of the proposal with the applicable rules required the authority to undertake a point by point scrutiny of the proposal against the rules pertaining to it. Every aspect of the activity had to be in conformity with the relevant rules. Certifying the activity amounted to holding out that it complied fully in every respect. If the activity did not comply, a certificate could not be issued.

The Council had been presented with an application and accompanying plans which suggested at least the possibility of vast tracts of indigenous vegetation in areas where the proposed activities were to be undertaken. The plans were not detailed and did not use the term “indigenous vegetation” but did refer to “native pasture”. Having regard to the nature and scale of the proposed activities and the scale of possible indigenous vegetation suggested by the plans, it was incumbent on the Council to do more than just rely on the bare assertion of the applicant. All that Five Rivers had asserted was that indigenous vegetation clearance would not occur but without explaining why.

The Council was required to satisfy itself as to the activities actually involved, including whether any vegetation clearance was proposed and, if so, whether it would breach the Plan. The Council had not had sufficient information to support its decision that the activities described in the application were permitted activities. The Council should have sought clarification as to why Five Rivers had asserted the Plan would not be breached. It should have inquired as to what particular activities were covered by crop production and arable farming and, if that included removal of any existing indigenous vegetation, how those activities complied.

The certificate had been issued two years previously as past of its long term development strategy and Five Mile said that it had incurred significant expenditure. However, any expenditure which had been incurred by Five Rivers had either been incurred prior to the certificate being issued or not incurred specifically in reliance on the certificate. Further, Forest and Bird had not been guilty of any disqualifying conduct and had filed its proceeding promptly once it had obtained evidence that the sites contained indigenous vegetation. The Council had acted unlawfully in issuing the conditional certificate to Five Rivers. The only appropriate remedy was to quash the certificate.

Application granted. The certificate was quashed and declared invalid.

JUDGMENT OF Hon. Justice French

Introduction
1

Royal Forest and Bird challenges the validity of a certificate of compliance granted by the Waitaki District Council to Five Rivers Limited under s 139 of the Resource Management Act 1991.

2

The certificate purported to certify as permitted activities a number of farming activities including “crop production and arable farming”, “irrigation” and “ancillary building construction.”

3

According to Forest and Bird, the Council failed to assess whether those activities are permitted activities in terms of the rules of the District Plan controlling indigenous vegetation clearance.

4

The key issues for determination are:

  • (i) do any of the activities in question constitute vegetation clearance under the Plan?

  • (ii) was the Council required to positively determine whether the activities were permitted in terms of the indigenous vegetation clearance rule or could it rely on the assurances of Five Rivers and issue a certificate that was conditional on compliance with the rule?

  • (iii) even if the Council's decision to issue the certificate was unlawful, should the Court exercise its residual discretion and deny Forest and Bird a remedy?

Factual Background
5

Five Rivers Limited is the registered proprietor of a 5,149 hectare high country station situated south of Lake Ohau and known as Ohau Downs. It is currently used for cattle and merino grazing. Parts of Ohau Downs have previously been developed by mechanical cultivation, oversowing and top-dressing, although the extent of former development varies and large parts of the property are undeveloped grassland.

6

Under the Waitaki District Plan, the property is zoned rural scenic.

7

The Plan describes the rural scenic zone in the following terms:

The Rural S (Scenic) Zone generally covers the high country, rangelands and inland basin areas and is predominantly used for extensive pastoral farming with pockets of forestry and arable farming. The Rural Scenic Zone has a particular visual amenity associated with the dominance of open-space vistas and landforms and the lack of intensive subdivision and landuse and the overall absence of buildings and structures. Parts of the upper Waitaki contain landscapes that are outstanding due to their high degree of unity, coherence and naturalness.

8

The scheme of the Plan is that farming activities are permitted activities in the rural scenic zone, provided they comply inter alia with all the Site Development Standards. Non compliance with any one of the Site Development Standards has the effect of rendering the activity a discretionary activity rather than a permitted activity.

9

On 13 May 2010, Five Rivers applied to the Waitaki District Council under s 139 for a certificate of compliance for a number of existing and proposed farming activities.

10

The purpose of a certificate of compliance is to provide confirmation that an activity which the applicant seeks to carry out is permitted by the District Plan and does not require resource consent. It is not necessary to obtain a certificate of compliance before undertaking a permitted activity. However, the benefit of obtaining a certificate is that it preserves the status of the activity in question for five years, and so protects the applicant against a subsequent plan change. This was the key driver behind Five Rivers making its application. Five Rivers had purchased the Ohau Downs property with a view to future long term development and was worried about the Plan process which it saw as being in a state of flux.

11

On 28 May 2010, the Council granted Five Rivers' application and issued a certificate of compliance. The certificate purported to certify the following as permitted activities:

  • • Pastoral grazing for cattle (dairy), and sheep;

  • • Crop production and arable farming;

  • • Irrigation by way of central pivot irrigators and k-lines, including ancillary infrastructure;

  • • The creation and management of ponds for the purpose of storage and supply of stock water where the scale of earthworks meets the permitted activity earthworks rule;

  • • Application to land of fertilizers including nitrogen;

  • • Construction of roads, tracks and culverts for access to farm infrastructure and the farm in general where the scale of earthworks meets the permitted activity earthworks rule;

  • • Ongoing road/track maintenance and associated...

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2 cases
  • Fraser v Central Hawke’s Bay District Council
    • New Zealand
    • High Court
    • 4 November 2021
    ...be in conformity with the relevant rules. 11 12 13 At [48]–[50]. Royal Forest and Bird Protection Society v Waitaki District Council [2012] NZHC 2096, NZRMA 507. At [49] (footnotes omitted). Issue 1: Was the first certificate of compliance granted on the basis of inadequate information? [30......
  • Royal Forest and Bird Protection Society of New Zealand Incorporated v Waitaki District Council & Anor HC Tim
    • New Zealand
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    ...HIGH COURT OF NEW ZEALAND TIMARU REGISTRY CIV-2011-476-000350 [2012] NZHC 2096 Hearing: UNDER Judicature Amendment Act 1972 IN THE MATTER OF an application for review of certificates of compliance granted under s 139 Resource Management Act 1991 BETWEEN ROYAL FOREST AND BIRD PROTECTION SOCI......

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