The Waikato Regional Council on the 9th December 2021 adopted Freshwater Policy Review Project Plan. Since that meeting in December 2021 the Review project has been regularly reporting back to the Risk and Assurance committee and the Key Project reference group on their progress.

On the 22nd December 2023 the new government made a change to the legislation; repealed the Natural Built Environments and Spatial Planning Act; and the Resource Management Act to extend the reporting date for the review from 2024 out to the 31st December 2027, which effectively gave the Council another three years to report their findings from the review.

As part of their regular reporting staff had told Council that it was unlikely that they would meet the existing deadline for reporting of December 2024 and that the revised date gave a more realistic timeframe for completing the review.

WRC councillors held workshops in February and April 2024 to discuss the implications from the government changes to the freshwater policy review project where staff highlighted the Minister Chris Bishop’s advice that they were making changes to the National Policy Statement on Freshwater Management which would affect the implementation of the NPSFM.

The Minister advised that the government would review and replace the NPSFM in the current parliamentary term which would take place early next year with the actual enactment of the replacement legislation due in October – December 2025.

A number of councillors questioned the need to continue on with the Freshwater Policy Review Process given the clear advice from government that the national direction will change.

Further questions have been raised by councillors in regard to the ongoing use of ratepayer’s funds given the uncertainty of the national direction at the present time. Councillors have questioned whether the ongoing expenditure was prudent in relation to the uncertainty.

There was an undertaking given at the April 2024 workshop that an independent legal opinion would be sought and this came up with three options and the advantages and disadvantages for each.

Option 1: Status Quo (revised December 2027 notification date)

This option to continue the existing project would comply with councils statutory obligations but may focus on elements in the NPSFM that are not relevant to the region, and may require significant extra costs.

Option 2: Revised project, targeted and prudent investment.

This option is to proceed with a refreshed approach that is risk based and tailored to the needs of the region. It would comply with councils statutory obligations but the legal opinion was that there was a low to medium risk that council could be seen as not complying with statute with a low (but potential) exposure to a judicial review from some sectors. It was thought that the documentation of the rationale behind this risk based approach would mitigate this risk.

There is a risk that time is spent investigating the regulation of activities that are no longer required to be regulated under the new NPSFM.

Has the advantages of low risk of legal action; enables focus on the issues of the region and solutions are developed in conjunction with those most impacted by the issues.

Option 3: Cease freshwater planning review project until new NPSFM in operation.

This option would not be compliant with council’s statutory obligations including the requirements for engagement with Iwi, and would have heightened exposure to judicial review from multiple parties.

Has the advantage of providing time to understand and ensure compliance with the new NPSFM; avoids unnecessary spend on policy development and technical work that may not align with the new national direction; enables staff to be re-assigned to other policy review projects such as the air and geothermal part of the regional plan that require review; and enables a more robust understanding of the implementation and effectiveness of PC1 provisions of the Waikato and Waipa catchments.

Council staff has recommended option 2 as their preferred option.

Although this option will be risk based; tailored to the needs of the region; and developed in conjunction with those most impacted by the issues, there is still the high possibility that the outcomes will be required to be redone as a result of the changes to the NPSFM implemented by the government.

Given the costs that would result for all parties it would seem unlikely that any should wish to start proceedings for a judicial review should the project be put on hold, particularly in light of the fact that the requirements under the new NPSFM will be known in late 2025 which is still 2 years away from the required reporting date for the overall review project.

In light of the above information it would seem strange for the review project to carry on given the lack of knowledge of any definite requirements under the proposed new NPSFM, and the fact that the expenditure of ratepayers funds was being made in the full knowledge that it may in fact be wasted by any changes made by the central government.

For that reason it would in our opinion be the practical solution to put the review on hold until the outcome of the new NPSFM is known as set out in option 3.

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