Court and councils swamped with wetland rules
Court and councils swamped with wetland rules
Wednesday 13 July, 2022
Planning authorities can find it highly challenging when just before their proposed plans become fully operative, new national policy direction, standards or regulations are enacted. This is especially a source of frustration (and cost) if their plans will be in conflict with the newly introduced, higher-order planning instruments. It seems every planning authority will be experiencing some level of challenge at present to ensure their plans continue to give effect to or implement the higher-order provisions, amendment acts and or rules, especially in light of the frequent changes in the resource management system.
This was exactly the case in a recent decision of the Environment Court. Just when the remaining appeals to Northland Regional Council’s Proposed Regional Plan (PRP) were prepared or set down for hearings, the new National Policy Statement for Freshwater Management (NPSFM 2020), the Resource Management (National Environmental Standards for Freshwater) Regulations 2020 (NES-F) and the Stock Exclusion Regulations 2020 (SER) all came into force. The PRP is a combined regional planning document for land and water including the Coastal Marine Area. This particular decision concerned remaining appeals on its stock exclusion provisions.
To briefly recap, the SER prohibit the access of cattle, pigs and deer to wetlands, lakes and rivers, with some qualifications around slope degree and existing fencing. Relevant to this case, the SER requires that stock be excluded from natural wetlands identified in a regional policy statement or regional or district plan and any natural wetland that supports a threatened species as described in the NPSFM 2020. In low slope areas, stock must be also excluded from any natural wetland greater than 0.05ha. Notably, sheep are not included in the meaning of “stock” under the SER.
Did the Court have scope to amend the PRP?
The Court first needed to confirm whether it had jurisdiction to grant the relief sought by the parties. This included the Minister of Conservation, who submitted that the PRP provisions should implement the recently enacted regulations and policies. The Court did not agree and expressed concern that it was being asked to “redesign” and “retrofit” the PRP in accordance with the NPSFM 2020, NES-F and SER, noting none of which “existed at the time the Council considered the provisions.” The Court maintained that it only had jurisdiction to amend the decisions version of the PRP within the scope of the parties’ submissions and appeals. Of course, it would attempt where possible and within scope to ensure consistency and avoid conflict. However, if the parties and Council remained concerned about the PRP’s consistency with the newer authorities, then it was the Council’s role (not the Court’s) to resolve that inconsistency via another plan change.
So, what could the Court amend?
Within the scope of the appeals, the Court found that the minimum area of natural wetland which must be fenced under the PRP was 500m2 (rather than 2,000m2 as in the decisions on the PRP). The lower area size would be consistent with the regulations and given a benefits and costs analysis, was the most appropriate method to achieve the purpose of the Act whilst ensuring uptake by the farming community.
However, the Court did not agree that sheep could be included within the definition of “livestock” under the PRP nor that it could change “livestock” to “stock”, as neither of these relief were sought in the submissions on the PRP. It did note that in practical effect, sheep and other types of stock would still be excluded from natural wetlands greater than 500m2 by the amended fencing rule.
Overall, the Court was also gravely concerned that the government arm was overstepping its function under the separation of powers by releasing “guidelines” on how to interpret the recently enacted instruments. The Court stated that the three distinct powers (the Legislative, the Executive and the Judiciary) should remain separate and uninfluenced by the others in fulfilling their separate roles. The Court said that it understood its statutory duty was “… to determine the case devoid of any sector influence” and was troubled by “… the politicisation of the environmental space.”
How can planning authorities resolve plan tensions?
When faced with new standards, regulations and policies prior to a proposed plan change becoming operative, planning authorities should not attempt to retrofit their plans unless there is scope within submissions and appeals.
If there is not any scope, then planning authorities have a number of other tools they can implement to ensure their plans achieve consistency with high-order planning instruments, amendment acts or rules. This usually requires a plan change using Schedule 1 after appeals are resolved, although recent amendments such as the Resource Management (Enabling Housing Supply and Other Matters) Amendment Act 2021 require specific local authorities to adopt a separate process for this. Where new enactments render proposed plan changes ineffective, then sometimes the only option is to withdraw that proposed plan change and start afresh. A final option before proceeding with a plan change or withdrawal is to seek a declaration from the Environment Court. As made clear by the Court in this decision on the PRP, the Judiciary’s separate role is to interpret the legislation and regulations then determine their application (and enforcement, if necessary).
Please talk to one of our experts below if you are facing difficulties, or would like an opinion, on any of your planning provisions and how these may (or may not be) giving effect to the recently enacted instruments or regulations now in force.