Don’t fire up the bulldozers in the McKenzie Basin just yet. Land use consents for cubicle dairy farms granted by the Waitaki District Council may need to be reheard
This is not widely understood, and was only belatedly understood: all of the publicity around cubicle dairy farming proposals stems from only one aspect of the proposals.
Effluent discharge applications have now been called in by Environment Minister Nick Smith, for hearing by a board of inquiry. But other key consents for land use proceeded effectively in secret, without any public notice, and were granted by the Waitaki District Council in September and October last year.
This decision may have been incorrect, rendering the process followed by the Council unlawful, and the consents invalid. If so, they would need to be reheard.
Judicial review ensures that public decision-makers do not abuse their powers. They must follow the law that regulates their decisions. If they have misunderstood the law, or failed to give effect to it -- perhaps failing to consider everything relevant, or improperly taking into account things that are irrelevant, or following the wrong procedure -- the decision may be reviewable. One key objective of the law is to provide proper opportunity for people to participate in decision-making.
I envisage a happy day out for lawyers, arguing about whether / which judicial review grounds might be engaged in the circumstances of this case. But to kick things off, there are at least a couple of problems.
Under section 93 of the Resource Management Act, Waitaki District Council was required to publicly notify the consent applications, unless satisfied that the adverse effects of the activity on the environment would be minor. “Environment” is defined in the Act as follows:
environment includes -- (a) ecosystems and their constituent parts, including people and communities; and (b) all natural and physical resources; and (c) amenity values; and (d) the social, economic, aesthetic, and cultural conditions which affect the matters stated in paragraphs (a) to (c) of this definition or which are affected by those matters.
By contrast, as explained on their website and reproduced above, the Council seems to have focused almost solely on whether effects on people would be minor. That’s an aspect of the definition, but ecosystems and their constituent parts, natural and physical resources, and so on, are protected in their own right.
Secondly, this conference paper by Charles Chauvel, delivered when he was a public lawyer and partner at Minter Ellison Rudd Watts, notes that in the specialist jurisdiction of the Resource Management Act, “Applications for judicial review have been of particular use in challenging decisions under s94 RMA by an authority that an application for resource consent under the RMA need not be notified.” And according to the Court of Appeal, “There is a policy evident upon a reading of Part VI of the Act, dealing with the grant of resource consents, that the process is to be public and participatory. ... Care should be taken by consent authorities before they remove a participatory right of persons who may by reason of proximity or otherwise assert an interest in the effects of the activity proposed by an applicant on the environment generally or on themselves in particular.”
You might well wonder, what were the Council planners thinking? We’ve been hearing a lot about this iconic landscape, and the nationally significant nature of the proposal: how could the effects of it be regarded by any rational person as “no more than minor”?
One possible answer is this: the consents and certificates of compliance linked to above show that on the district plan, the land in question is designated as “rural scenic” (as opposed to, for example, “outstanding landscape”). And permitted activities within such a zone already include farming activities, and in particular, the intensive farming of pigs and poultry. It has to be asked: if those two other forms of intensive farming are regarded as acceptable for the location, how is intensive dairy farming unacceptable? One may well have a problem with the district plan -- but if the rules are insufficiently robust from an environmentalist’s point of view, that is not individual farmers’ problem, when all they have done is comply with the law. And it was no doubt in the Council’s mind, in determining that these applications were not a significant departure from the norm.
However, under section 94A of the Act, when forming an opinion as to whether the adverse effects of an activity on the environment will be minor or more than minor, a consent authority may disregard an adverse effect of the activity on the environment if the plan permits an activity with that effect. But this is discretionary: not in itself an answer to the necessary assessment of the effects, and a determination whether to publicly notify the applications.
The Environmental Defence Society (EDS), comprising Resource Management Act experts, has called on the government to file judicial review proceedings. The called-in applications relating to effluent discharge must surely be, from an environmental perspective, a high hurdle to clear; the government may think it has done enough. But if there was any risk at all that these consents might need to be granted, then it would be important for the government not to neglect this other aspect.