Royal Forest and Bird Protection Society of New Zealand Incorporated v Waitaki District Council
Judicial review application
Farming activities are generally permitted in the Rural Scenic Zone, provided they comply with various site development standards (among other things). The relevant standard in these proceedings concerns the clearance of indigenous vegetation. It provides a land area based clearance threshold (with listed exemptions), beyond which a farming activity ceases to be a permitted activity under the District Plan.
The certificate of compliance which was granted to Five Rivers certified several farming activities on the property as permitted activities, including “irrigation”, “crop production and arable farming” and “ancillary building construction”. The certificate purported to be subject to a condition stating that the permitted status of the activities listed was provisional on compliance with several District Plan standards, including the indigenous vegetation clearance standard. Overall, Forest and Bird argued that in granting the certificate the Council did not properly assess whether the proposed activities were in fact permitted activities under the indigenous vegetation clearance rules in the District Plan.
In assessing the validity of the certificate, three key issues were considered by the Court.
Issue one: does irrigation constitute vegetation clearance?
The first issue was, broadly, whether any of the activities included in the certificate amounted to vegetation clearance under the District Plan. Of particular relevance, Forest and Bird argued that irrigation constituted vegetation clearance and sought a declaration to this effect. It was agreed that sustained irrigation would gradually lead to the loss of indigenous vegetation through species competition (ie irrigation would change the normally dry habitat into an environment in which indigenous vegetation could not compete, and gradually exotic pasture species would replace indigenous vegetation).
The Court held that irrigation did not come within the District Plan’s definition of vegetation clearance. French J gave particular weight to the wording of the definition and undertook a detailed exercise in interpretation, concluding (among other things) that the method of vegetation clearance, as opposed to the outcome, is determinative and that a greater degree of direct physical interference, coupled with a more perceptible effect, is generally required.
Although the Court held that irrigation did not constitute vegetation clearance, Five Rivers accepted that some of the activities specified in the certificate, including crop production and ancillary building construction, did involve vegetation clearance. Therefore, the Court went on to consider the second issue.
Issue two: was the Council entitled to issue a conditional certificate of compliance?
The second issue was whether the Council was under a positive obligation to establish whether the activities listed in the certificate were in fact permitted activities under the indigenous vegetation rule, or whether it could accept the claims by Five Rivers that the proposed activities would not infringe the standard, and grant a certificate framed as being conditional on compliance with the standard.
The Council and Five Rivers submitted that simply because some of the activities authorised by the certificate constituted vegetation clearance, this did not mean that that the certificate authorised the clearance of indigenous vegetation beyond the permitted threshold. The Council and Five Rivers pointed to the wording of the certificate which clearly stated that it was subject to compliance with the indigenous vegetation clearance standard, which, if it was to be breached, would require a resource consent application. On this basis, Five Rivers argued that the Council was obliged to process the application and did not need to investigate hypothetical scenarios in which the proposals could be carried out infringing the standard. Forest and Bird argued that the Council had insufficient information to be satisfied that the indigenous vegetation clearance standard would be complied with, and that further investigations were required before a certificate could be lawfully issued.
The Court began by analysing section 139 of the RMA, and distilling the relevant principles from the authorities. In light of the principles applying to the application of section 139, the Court was satisfied that the Council had acted unlawfully in granting the certificate. In particular, the Court held that, given the nature and scale of the activities that were being proposed, and the amount of indigenous vegetation on the site (as suggested by the plans accompanying the application) “it was incumbent on the Council to do more than just rely on the bare assertion of the applicant.”
French J stated that the Council needed to satisfy itself in terms of what the proposed activities actually involved. This included whether vegetation clearance was to be carried out and, if it was, whether it would infringe the indigenous vegetation clearance standard. In other words, the Council simply did not have enough information to make its decision that the activities specified in the certificate were actually permitted activities, and it “could not overcome that deficiency by inserting a condition in the certificate”. The Court held that only by undertaking further detailed investigations (the likes of which are specifically envisaged under section 139) could the Council properly satisfy itself whether or not the proposal would involve indigenous vegetation clearance exceeding the permitted threshold: “[w]ere a Council not required positively to assess whether any relevant rules will be breached by the activities, compliance certificates would become meaningless…”
Issue three: should Forest and Bird be granted a remedy?
Finally, the Court considered whether any special circumstances existed in this case that would justify the Court exercising its residual discretion to deny Forest and Bird a remedy, despite the fact that the Council’s decision to grant the certificate was unlawful. The Court rejected the argument by Five Rivers that relief should be denied due to the time since the certificate was granted and the significant expenditure incurred by Five Rivers. The Court held that no expenditure had been incurred through reliance on the certificate, and that there was a reasonable explanation for Forest and Bird’s delay in bringing the proceedings, namely, that it needed to gather the necessary evidence, including undertaking a botanical survey. Therefore, the Court held that the appropriate remedy was to quash the certificate and declare it invalid.
In light of the above, the Court granted Forest and Bird’s application for judicial review. The case is notable for a number of reasons. Firstly, the Court’s finding that irrigation does not constitute vegetation clearance will be of wider application and will be welcome news to many high country station operators. Secondly, on the back of the High Court’s decision in Turners & Growers Horticulture Limited v Far North District Council and Northland Waste Limited  NZHC 1142, the decision represents another strong reminder to councils of the scope of their obligations when assessing applications for certificates of compliance. It is not enough for councils to simply rely on bald assertions by an applicant – the onus is on the council to do its own homework in order to satisfy itself that every aspect of every activity within the scope of the certificate is a permitted activity under the plan.
Occasionally, applications for certificates of compliance may require significant work on the part of councils, including the making of additional detailed inquiries as to the precise nature of what is proposed. In affidavit evidence, the Council’s policy planner argued that such further inquiries would be impractical given the fact that the filing fee for a certificate of compliance is $150 and the Council only has 20 working days under the RMA within which to process an application. However, additional work and the seeking of further information by councils when processing certificates of compliance is envisaged by the scheme of section 139 of the RMA. As pointed out by the Court, the RMA provides for situations where processing certificates may impose potentially onerous obligations on councils. Examples cited by the Court include mechanisms such as the ability to request further information (and the impact of such a request in terms of stopping the statutory time limit); the ability to extend the statutory time limit; and the ability to charge the applicant the actual costs of processing the certificate, in additional to the standard filing fee.
All this should come as no surprise to councils. As the Court commented:
… a certificate of compliance is of no use to an applicant if all it does is record what the Plan says are permitted activities. The value of a certificate lies in it being an assessment of a particular application against the Plan provisions to test whether or not an activity contemplated for an area is in fact a permitted activity. It defeats the purpose of a compliance certificate for the point by point analysis to be deferred… The certificate is supposed to certify that every aspect of the proposed activity is in conformity with the relevant rules.
Following the decision by French J, it is understood that Forest and Bird has commenced several similar challenges to certificates of compliance granted to other high country stations. The outcomes in those proceedings will no doubt be keenly watched by station operators throughout the region.