25 June 2015

2015 Final decision of the Tukituki Catchment Proposal Board of Inquiry in relation to the matters referred back to them by the High Court

The Tukituki Catchment Proposal Board of Inquiry (the Board) has today released its final decision in relation to the matters referred back to them by the High Court.

As directed by the High Court, the Board has reconsidered and changed Rule TT1(j) in Plan Change 6 (PC6) of the Hawke’s Bay Regional Resource Management Plan (RRMP). It has also reconsidered and amended the Ruataniwha Water Storage Scheme (RWSS) resource consent conditions covering production land use utilising water from the scheme in light of the changes made to Rule TT1(j).

The Board considered the comments they received on the draft report and the comments on the responses expressed by other parties and then made its decision and produced a final report.

The Board has amended Rule TT1(j) by: deleting the deeming provision that gave rise to the High Court appeal; including exceptions for low intensity farming systems and plantation forestry; and more accurately identifying where the measurement of dissolved inorganic nitrogen (DIN) is to take place. The Board has also made consequential amendments to Policy TT4(1)(g) and corrected errors in the definition of ‘low intensity farming systems’ and Rule TT1(k).

The Board also amended the RWSS conditions by inserting new Conditions 11(c), 12A and 30(c) and (d) into Schedule Three. In addition, it made consequential amendments to Condition 20, added Condition 23(g)(iv) and made other minor amendments to the conditions in Schedule Three.

The Environmental Protection Authority’s (EPA) Chair Ms Kerry Prendergast says the Board, in coming to a decision in relation to the matters referred back to them by the High Court, has taken a considered approach and during the process has given parties opportunities to comment.

Ms Prendergast thanked the Chair of the Board, the Hon Lester Chisholm and the other Board members – Russell Howie, Matthew Lawson, Loretta Lovell and Alec Neill for their work.

The final decision has been sent to all parties involved in the application. It is also available on the EPA website at the link below: http://www.epa.govt.nz/Resource-management/Tukituki/Pages/default.aspx

Background notes

1. The Tukituki Catchment Proposal is made up of two parts, which are together considered a proposal of national significance.

· One part is the Hawke’s Bay Regional Council’s (HBRC) Proposed Plan Change 6 (PC6), which covers a suite of changes to rules for land and water management in the Tukituki River catchment;

· The other is the Hawke’s Bay Regional Council Investment Company Limited’s (HBRIC Ltd) application for 17 resource consents and a notice of requirement for the construction of a water storage dam and associated structures in the upper reaches of the Tukituki River catchment, relating to the Ruataniwha Water Storage Scheme (RWSS).

2. On 5 June 2013, the Minister for the Environment, Hon Amy Adams and Minister of Conservation, Hon Dr Nick Smith directed a request for a call-in from the HBRC, and an application from the HBRIC Ltd to be considered jointly by an independent Board of Inquiry as a proposal of national significance.

3. The Final Report and Decisions on the Tukituki Catchment Proposal (dated 18 June 2014) were publicly released on 26 June 2014.

4. Two appeals by Hawke’s Bay and Eastern Fish and Game Councils (Fish and Game) and the Royal Forest and Bird Protection Society of New Zealand (Forest and Bird) and a cross appeal by the Environmental Defence Society (EDS) were lodged to the High Court on the Board’s Final Report and Decisions.

5. A total of twelve questions of law were advanced in the High Court by Fish and Game, Forest and Bird, and EDS. These appeals were opposed by HBRC, HBRIC Ltd, Primary Production Interest Groups (Dairy NZ Limited, Federated Farmers of New Zealand Incorporated, Fonterra Co-Operative Group Limited, Horticulture New Zealand Incorporated and Irrigation New Zealand Incorporated) and Hastings District Council. All the questions before the High Court related to the Board's approach to the management of nitrogen in surface waters within the Tukituki Catchment.

6. On 12 December 2014, Justice Collins of the High Court delivered his judgment on the two appeals and cross appeal lodged on the Board of Inquiry’s Final Report and Decisions. Justice Collins determined that the Board had made a material error of law by including a factual deeming provision in Rule TT1(j) into the final decision without giving parties a chance to comment on it.

7. Justice Collins ordered the Board to reconsider their decision on this specific point (Rule TT1(j)). This included giving parties a fair opportunity to comment. The Board was also required to reconsider the conditions of consent for RWSS in light of the changes that were made to Rule TT1(j).

8. The Resource Management Act 1991 (the RMA) does not prescribe timeframes and a process when a Proposal of National Significance is referred back from the High Court.

9. On 1 May 2015, the Board invited the applicants, relevant local authorities, submitters, relevant Ministers and the landowners and occupiers directly affected by the decision that was granted previously by the Board on 18 June 2014, to make any comments on minor or technical aspects of the draft report in relation to including the factual deeming provision in Rule TT1(j) of PC6 and the conditions of consent for the RWSS in light of the changes the Board made to Rule TT1(j).

10. Nine comments were received by the EPA by the close of the comments period (15 May 2015). Most of the comments received related to the RWSS consent conditions. The Board gave parties who had already commented an opportunity to respond to the views expressed by other parties (by 5 June 2015).

11. The Board, in coming to its final decision, considered the comments they received on the draft report and the comments on the responses expressed by other parties.

12. In summary, the Board has:

· amended Rule TT1(j) of PC6 by:

o deleting the deeming provision which gave rise to the High Court appeal (as detailed in paragraph 30 of the report);

o including exceptions for low intensity farming systems and plantation forestry (as detailed in paragraphs 32, 33 and 40 to 42 of the report); and

o more accurately identifying where the measurement of dissolved inorganic nitrogen (DIN) is to take place (as detailed in paragraphs 67 and 68 of the report).

· made consequential amendments to Policy TT4(1)(g) and corrected errors in the definition of ‘low intensity farming system’ and in Rule TT1(k) (as detailed in paragraphs 70, 71 and 75 to 78 of the final report). Other minor amendments to PC6 are detailed in Appendix 1 of the report.

· amended the RWSS conditions by inserting new Conditions 11(c), 12A and 30(c) and (d) into Schedule Three:

o Condition 11(c) provides for the consent holder to report on the monitoring of the effects of nitrogen leaching required by Condition 6 (as detailed in paragraphs 113 and 114 of the report).

o Condition 12A provides that if the RWSS is a material (significant) contributor to an exceedance of the DIN limits and targets in Table 5.9.1B of PC6, the use component of the consents is be managed in a manner consistent with achieving those targets and limits by 31 December 2030 (as detailed in paragraphs 91 and 116 to 120 of the report).

o Condition 30(c) and (d) enables HBRC, as the regulatory authority, to review the Land Use Capability (LUC) leaching rates or Farm Environmental Management Plan (FEMP) process in specified circumstances (as detailed in paragraph 121 of the report).

· made consequential amendments to Conditions 20 and 23(g), as well as other minor amendments:

o Condition 20 ensures that the Irrigation Environmental Management Plan (IEMP) is also updated to reflect any changes required under Condition 12A or following a review under Condition 30 (as detailed in paragraph 114 of the report).

o Condition 23(g) (iv) has been added by the Board so that a review of the Farm Environmental Management Plan will be required if the consent holder identifies that specific actions for the relevant farm property or farming enterprise are required to be implemented under Condition 12A (as detailed in paragraph 114 of the report).

o Other minor amendments have been made to the consent conditions as detailed in Appendix 1 of the report.

13. The Board’s decision on the two matters referred back to them by the High Court can only be appealed to the High Court by the applicants, the local authority, other relevant local authorities, submitters, the Minister for the Environment and the Minister of Conservation and only on a question of law. A notice of appeal must be filed within 15 working days after the date the appellant is notified of the decision. Appeals should be filed with the Registrar of the Napier High Court.

14. The Tukituki Catchment Proposal is chaired by the retired High Court Judge, the Hon Lester Chisholm who is a Companion of the New Zealand Order of Merit. The other four members are Environment Court Commissioner Russell Howie, Matthew Lawson, Loretta Lovell and Alec Neill.

15. The Board makes its decisions independently of the EPA and of Ministers. Its decision can be appealed to the High Court on points of law only, and it cannot be overturned by Ministers.

16. You can read more about this proposal and the process followed on the EPA website: http://www.epa.govt.nz/Resource-management/Tukituki/Pages/default.aspx

ENDS

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