The legal stoush over a Canterbury water pollution rule is headed to the Court of Appeal.<\/p>\n
In a December 22 judgment, High Court Justice Cameron Mander found the province\u2019s regional council, Environment Canterbury (ECan), didn\u2019t properly include a rule in its Land and Water Regional Plan in 2015 that permitted farm pollution under certain circumstances.<\/p>\n
Despite that finding, Justice Mander rejected the judicial review taken by Environmental Law Initiative, a charitable trust. He said section 83 of the Resource Management Act blocked the challenge, and relief would have been \u201climited to a declaratory remedy\u201d given the long delay in taking the case, and the prejudice to farmers who relied on the plan, as well as the potential costs to the council and ratepayers.<\/p>\n
Now, Environmental Law Initiative confirms it has filed a notice of appeal.<\/p>\n
The initiative\u2019s senior researcher Anna Sintenie\u00a0says the wider issue is water pollution in Canterbury that, in large part, comes from intensive agriculture like dairy farming.<\/p>\n
\u201cWe were really concerned that there is a minimum standard in the [Resource Management] Act that ECan was required to work to when it was introducing that rule, and that standard provides for pollution but only when it doesn\u2019t give rise to grossly, egregious environmental outcomes that are specified in there,\u201d she says.<\/p>\n
(The list of minimum standards in section 70 of the act includes ensuring permitted activities don\u2019t cause: significant adverse effects on aquatic life, objectionable odours, and a \u201cconspicuous change in the colour or visual clarity\u201d.)<\/p>\n
\u201cOur argument was that ECan was required to look at those things, and it was required to satisfy itself that those weren\u2019t going to happen as a result of allowing the nitrogen discharge that the rule allowed.\u201d<\/p>\n
It was a \u201csignificant failing\u201d ECan didn\u2019t do that, Sintenie says.<\/p>\n
The legal thrust of the initiative\u2019s appeal is to challenge the finding that section 83 blocked the judicial review and prevented the court from making declarations, and the decision not to quash the rule.<\/p>\n
Sintenie says the Government\u2019s replacement legislation proposes to carry over the RMA\u2019s section 83, which means the precedent set by the High Court decision \u2013 blocking legal challenges on an error of law \u2013 remains.<\/p>\n
\u201cThat\u2019s why it\u2019s still going to be an important question.\u201d<\/p>\n
ECan has been approached for comment.<\/p>\n
Section 83 of the RMA is headed: \u2018Procedural requirements deemed to be observed\u2019. It says, effectively, once a plan is operative it\u2019s deemed to have been prepared and approved correctly, and can only be challenged by an enforcement order, which has a statutory time limit of three months.<\/p>\n
ECan\u2019s defence in the High Court was the section was a \u201cstatutory bar\u201d to the claim. The charity, meanwhile, said the section was concerned with procedural non-compliance, and its judicial review was a \u201csubstantive\u201d challenge to the council\u2019s failure to assess compliance with the environmental minimum standards in section 70 of the act.<\/p>\n
In his decision, Justice Mander pointed to another High Court decision, in a case taken by Protect Pauanui Inc, to say there are strong policy reasons for restricting challenges to regional plans after they become operative.<\/p>\n
\u201cThere is a need for certainty,\u201d Mander wrote in his December 22 judgment. <\/p>\n
\u201cArguably, the present application for judicial review is a case in point, with the proceeding having been brought only very many years after the regional plan became operative. Over that period, both the council and a multitude of stakeholders have relied on its terms and been entitled to depend on the validity of its provisions.\u201d<\/p>\n
If the ECan rule had been quashed, farmers said they might find themselves operating illegally, and open to prosecution. If new consent applications were required, the council said it would take years to clear the backlog, at considerable cost and with very little benefit for the environment.<\/p>\n
The charity said whatever the cost or inconvenience, the council had to follow the law, and if the rule was quashed it was a consequence of ECan unlawfully including the rule in its regional plan in the first place. Keeping the rule would have a \u201cconsequential deleterious impact\u201d on the environment, it said \u2013 a claim rejected by ECan, which said there was \u201cno evidence of any causal impact\u201d.<\/p>\n
Justice Mander said in his decision the rule\u2019s impact had diminished over the years because the plan had been, in some at-risk catchments, superseded by plan changes.<\/p>\n
It\u2019s unclear when the appeal might be heard.<\/p>\n","protected":false},"excerpt":{"rendered":"The legal stoush over a Canterbury water pollution rule is headed to the Court of Appeal. In a…\n","protected":false},"author":2,"featured_media":286108,"comment_status":"","ping_status":"","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[22],"tags":[273,6712,5008,111,43,7439,139,69,53667,147,11219],"class_list":{"0":"post-286107","1":"post","2":"type-post","3":"status-publish","4":"format-standard","5":"has-post-thumbnail","7":"category-environment","8":"tag-environment","9":"tag-legal","10":"tag-local-government","11":"tag-new-zealand","12":"tag-news","13":"tag-newsroom-pro","14":"tag-newzealand","15":"tag-nz","16":"tag-primary-industries","17":"tag-science","18":"tag-sustainable-future"},"_links":{"self":[{"href":"https:\/\/www.newsbeep.com\/nz\/wp-json\/wp\/v2\/posts\/286107","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.newsbeep.com\/nz\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.newsbeep.com\/nz\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.newsbeep.com\/nz\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/www.newsbeep.com\/nz\/wp-json\/wp\/v2\/comments?post=286107"}],"version-history":[{"count":0,"href":"https:\/\/www.newsbeep.com\/nz\/wp-json\/wp\/v2\/posts\/286107\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.newsbeep.com\/nz\/wp-json\/wp\/v2\/media\/286108"}],"wp:attachment":[{"href":"https:\/\/www.newsbeep.com\/nz\/wp-json\/wp\/v2\/media?parent=286107"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.newsbeep.com\/nz\/wp-json\/wp\/v2\/categories?post=286107"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.newsbeep.com\/nz\/wp-json\/wp\/v2\/tags?post=286107"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}