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

• Jurisdiction: New Zealand
• Judge: Hon. Justice French
• Judgment Date: 20 August 2012
• Neutral Citation: [2012] NZHC 2096
• Docket Number: CIV-2011-476-000350
• Court: High Court
• Date: 20 August 2012

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

[2012] NZHC 2096

CIV-2011-476-000350

IN THE HIGH COURT OF NEW ZEALAND

TIMARU REGISTRY

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.

Appearances:

Q A M Davies for Plaintiff

M R Garbett for First Defendant

E J Chapman and S Goodall for Second Defendant

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 earthworks;Fencing and stock yard construction for stock management;

• • Ancillary building construction – including but not limited to dairy sheds, woolsheds, hay barns, and calf rearing sheds, including their ongoing expansion (if required) and maintenance;

• • The installation of electricity supply associated with farm activities, both overhead and underground;

• • The fencing off of riparian margins and the planting of native vegetation within the margins; and

• • The harvesting and storage of grass for the feeding of stock.

12 The certificate was expressed to be subject to a condition. It stated that the Waitaki District Council accepted the activities listed above were permitted activities within the property “provided the conditions in rules 4.4 and 4.5 of the Plan are complied with.” The certificate concluded: “These activities can therefore be done lawfully on this site without a resource consent …”

13 Rule 4.4 contains the Site Development Standards. Rule 4.5 contains the Critical Zone Standards.

14 For the purposes of this proceeding, 1 it is the Site Development Standards that are in issue and more particularly Standard 4.4.8 which controls the clearance of indigenous vegetation. It relevantly provides:

4.4.8 General Indigenous Bush Vegetation Clearance

…

2. On any site there shall, over any five year continuous period, be no clearance of:

(a) more than 5000 square metres of indigenous vegetation generally, except where the vegetation clearance is carried out within, and for the purposes of, maintaining an area of improved pasture; or:

…

Exemption to Rule 4.4.8

Rule 4.4.8 shall not apply to vegetation clearance for the purposes of maintaining existing tracks, irrigation infrastructure, electricity transmission infrastructure, irrigation infrastructure yards, fence lines or existing firebreaks …

15 In order for Site Development Standard 4.4.8 to apply to an activity,

• (i) it must be or involve vegetation clearance.

• (ii) the site where the activity will be carried out must contain indigenous vegetation.

• (iii) the activity must involve clearance on a scale greater than the threshold specified in the rule for the type of indigenous vegetation that will be cleared.

16 In its application for the compliance certificate, Five Rivers had stated that indigenous vegetation as defined in the District Plan “will not be cleared in association with activities applied for in this application, except as required for the maintenance of existing tracks, irrigation infrastructure, yards and fencelines. Accordingly [Site Development Standard 4.4.8] will be complied with.”

17 It is common ground that Ohau Downs does contain indigenous vegetation although, in the absence of a full site vegetation survey, the exact extent and location of it is unknown.

18 Forest and Bird's position is that three of the farming activities listed in the application and certificate, either individually or in combination with the other activities, are forms of vegetation clearance. That being so, Forest and Bird argues that the Council was required to consider whether the proposal was consistent with Site Development Standard 4.4.8. It failed to do so and, accordingly, its decision to issue the certificate is invalid. Forest and Bird argues the Council had insufficient information to enable it to be satisfied that Standard 4.4.8 would be complied with and that further inquiries should have been made before the certificate could lawfully issue.

19 The three activities in question are crop production and arable farming, ancillary building construction (including ongoing expansion) and irrigation by way of a central pivot irrigator and k-lines.

20 Forest and Bird seek an order setting aside the decision to grant the certificate under s 4(2) Judicature Amendment Act 1972 and a declaration pursuant to s 4(1) that the certificate is invalid.

21 In addition, Forest and Bird also seeks what was described as a generic declaration that irrigation may be clearance of indigenous vegetation for the purposes of Site Development Standard 4.4.8.

22 For their part, the Council and Five Rivers dispute that irrigation constitutes vegetation clearance within the meaning of the Plan. As regards the other two activities (crop production and arable farming, ancillary building construction), they accept those activities may involve vegetation clearance but...