Summary
Otago Regional Council (“ORC”) was unsuccessful in an application for a declaratory judgment that the whole of their proposed regional statement was a freshwater planning instrument, and subject to the freshwater planning process.
Background
In 2020, the Resource Management Act 1991 (“RMA”) was amended to require all freshwater planning instruments prepared by a regional council to undergo a freshwater planning process (“FPP”) under s 80A. The FPP established a process for regional councils when introducing freshwater provisions in their regional policy statements and regional plans (excluding coastal plans). The FPP noted if only part of the planning instrument has freshwater provisions, Councils should only use the planning process for the freshwater part. The amendment resulted in a new National Policy Statement for Freshwater Management (“Policy”) which provided standards and objectives for water quality which must be implemented by regional councils.
In June 2021, ORC determined the whole of its proposed regional statement was a freshwater planning instrument under s 80A(2), thus subject to the freshwater planning process.
In response, the defendant, Forest and Bird, claimed that only part of the proposed regional statement was a freshwater planning instrument under s 80A(3).
ORC applied for a declaration on how s 80A should be applied.
The Case
ORC submitted their interpretation was correct due to the regional statement’s recognition of integrated management as prescribed by the RMA’s guiding concepts: Te Mana o te Wai and ki uta ki tai, which recognise the importance of clean and healthy water. Their interpretation was supported by Otago iwi and Canterbury Regional Council.
Forest and Bird submitted that s 80A(3) confines the scope of a freshwater planning instrument, thus provisions not relating to freshwater cannot constitute part of a freshwater planning instrument. They submitted their interpretation is consistent with the scheme and purposes of the RMA.
How should s 80A be correctly applied?
Section 80A(3) states that when applying s 80A, the regional council must decide which parts of the planning documents relates to freshwater. However, the key issue arising from this direction is understanding the meaning and application of “relates to freshwater.”
The Court acknowledged the lack of clarity in the legislation’s wording as to what “relates to freshwater.” Therefore, the Court looked at various interpretations by regional councils and the dictionary definition of “relate to.” However, the legislation’s ambiguity meant the correct interpretation was not conclusive when considering the term’s ordinary meaning. The Court looked to the sections’ purpose to identify the correct interpretation.
Section 80A’s supporting policy noted the amendment’s purpose was to provide an expedited process for addressing the decline in freshwater quality. The policy also required that all local authorities recognise the interconnectedness of the environment through an integrated management system, prescribed by Te Mana o te Wai.
The Court concluded that subjecting a greater scope of matters to the freshwater planning process would consequentially delay Parliament’s desired purpose. Therefore, s 80(2)(a) is to be interpreted and applied as it reads: issues unrelated to the freshwater management should not follow the freshwater planning process. Parts of the regional policy statement will qualify as “parts” of a freshwater planning instrument if they directly relate to “the maintenance or enhancement of the quality or quantity of freshwater.” Additionally, s 80A(2) means parts of a regional policy statement that implement the National Freshwater Policy’s direction of maintenance or enhancement of freshwater quality or quantity will qualify.
How should connections to Te Mana o te Wai be addressed?
The Court noted that mere connections to freshwater through Te Mana o te Wai, ki uta ki tai or the integrated management of these resources, does not mean the whole of a proposed regional statement will be treated as a freshwater planning instrument. Parliament’s intentions were to create a dual planning process which limited the application of a freshwater planning process to parts of a regional policy statement directly related to freshwater.
Result
The Court declared that ORC erred when determining the whole of the proposed 2021 Otago Regional Policy Statement was a freshwater planning instrument, as this determination was inconsistent with s 80A’s requirements. Further declarations were made instructing ORC to reconsider which elements of their proposed regional policy statement relate to freshwater, and once the provisions are notified, to restart the freshwater planning process for those parts.
For further information, please contact Director Brigitte Morten.
