Draft Report and Decision - Protecting our way of life | EPA
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Tukituki Catchment Proposal BOARD OF INQUIRY Draft Report and Decision of the Board of Inquiry into the Tukituki Catchment Proposal in relation to matters referred back to the Board by the High Court
Transcript of Draft Report and Decision - Protecting our way of life | EPA
Tukituki Catchment Proposal
BOARD OF INQUIRY
Draft Report and Decisionof the Board of Inquiry into the
Tukituki Catchment Proposal
in relation to matters referred back to the Board by the High Court
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Published by the Board of Inquiry into the Tukituki Catchment Proposal
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BEFORE THE BOARD OF INQUIRY CONCERNING A PROPOSED PLAN CHANGE AND APPLICATIONS FOR A NOTICE OF REQUIREMENT AND RESOURCE CONSENTS MADE BY HAWKE’S BAY REGIONAL COUNCIL AND HAWKE’S BAY REGIONAL INVESTMENT COMPANY LIMITED IN RELATION TO THE TUKITUKI CATCHMENT PROPOSAL
IN THE MATTER of the Resource Management Act 1991 and the deliberations of a Board of Inquiry appointed under section 149J of the Act to consider a request for a proposed plan change and applications for a notice of requirement and applications for resource consents by Hawke’s Bay Regional Council and Hawke’s Bay Regional Investment Company Limited for the Tukituki Catchment Proposal.
DRAFT DECISION OF THE BOARD OF INQUIRY INTO THE TUKITUKI CATCHMENT PROPOSAL IN RELATION TO THE MATTERS REFERRED BACK TO THE BOARD BY THE HIGH COURT
Board: The Honourable Lester Chisholm (Chairperson)
Environment Commissioner Russell Howie (Deputy Chairperson)
Matthew Lawson (Member)
Loretta Lovell (Member)
Alec Neill (Member)
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Contents
Glossary of terms ....................................................................................................... 5
Summary ..................................................................................................................... 7
Introduction ................................................................................................................. 9
High Court decision .................................................................................................... 9
Steps to address matters referred back to the Board ............................................ 12 Initial steps......................................................................................................... 12 Conference on 2 February 2015 ........................................................................ 13 Scope issues ..................................................................................................... 14 Admission of further evidence ............................................................................ 15 Meeting of parties on 26 February 2015 ............................................................ 15 Environment Court decision on Plan Change 5 .................................................. 16
Amendments to Rule TT1(j) ..................................................................................... 17 Introduction ........................................................................................................ 17 10 hectare cap for low intensity farming system ................................................. 18 Exclusion of forestry .......................................................................................... 19 Exclusion of horticulture and viticulture .............................................................. 20 The 80% trigger ................................................................................................. 20 11 Stock Units per hectare ................................................................................. 21 Contributing catchment v sub-catchment ........................................................... 23 Other matters ..................................................................................................... 27 Amendments made by the Board to Rule TT1(j) and Policy TT4(1)(g) ............... 28
RWSS resource consent conditions........................................................................ 29 Introduction ........................................................................................................ 29 Frustration ......................................................................................................... 34 The Augier Proposal .......................................................................................... 37 New Condition 5A proposed by Fish and Game ................................................ 39 Amendments made by the Board to the RWSS consent conditions ................... 40
Appendix 1 – Rule TT1(j), Policy TT4(1)(g) and the definition of low intensity farming systems as determined by the Board ............................. 43
Appendix 2 - Tukituki River Catchment nitrogen allocation status and Ruataniwha proposed irrigation zones ........................................................ 51
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Glossary of terms
Abbreviation Meaning
Beef and Lamb Beef and Lamb New Zealand
The Board The Board of Inquiry
DIN Dissolved Inorganic Nitrogen
EDS Environmental Defence Society
Fish and Game Hawke’s Bay and Eastern Fish and Game Councils
Forest and Bird Royal Forest and Bird Protection Society of New Zealand Incorporated
HBRC Hawke’s Bay Regional Council
HBRIC Ltd Hawke’s Bay Regional Investment Company Limited
IMOA Integrated Management and Offsetting Approach
LUC Land Use Capability
MCI Macroinvertebrate Community Index
NPSFM 2011 National Policy Statement for Freshwater Management 2011
NPSFM 2014 National Policy Statement for Freshwater Management 2014
PC5 Plan Change 5
PC6 Plan Change 6
RMA Resource Management Act 1991
Primary Production Interest Group
Dairy NZ Limited, Federated Farmers of New Zealand Incorporated, Fonterra Co-Operative Group Limited, Horticulture New Zealand Incorporated and Irrigation New Zealand Incorporated.
RPS Regional Policy Statement
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RRMP Hawke’s Bay Regional Resource Management Plan
RWSS Ruataniwha Water Storage Scheme
SU/ha Stock units per hectare
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Summary
[1] As directed by the High Court, the Board of Inquiry into the Tukituki Catchment
Proposal (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.
[2] Rule TT1(j) of PC6 has been changed by:
• deleting the deeming provision which 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.
[3] Consequential amendments have been made to Policy TT4(1)(g) and the Board
has corrected an error in the definition of ‘low intensity farming system’ pursuant to
section 149RA of the Resource Management Act 1991 (RMA).
[4] Finally, the Board has amended the RWSS conditions of consent of by inserting
new Conditions 11(c), 12A and 30(c) into Schedule Three. Condition 11(c) now
provides for the consent holder to report on the monitoring of the effects of nitrogen
leaching required by Condition 6. Condition 12A provides for the land use to be
managed in a manner consistent with achieving a DIN concentration of 0.8mg/l by 31
December 2030. The amendment to the review provision in Condition 30(c) enables
Hawke’s Bay Regional Council (HBRC), as the regulatory authority, to review the Land
Use Capability (LUC) leaching rates if it considers that necessary.
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Introduction
[1] After the Board of Inquiry into the Tukituki Catchment Proposal (the Board)
issued its final report and decisions in June 2014, Hawke’s Bay and Eastern Fish and
Game Councils (Fish and Game), and others, pursued appeals to the High Court which
were partially successful.1 The High Court directed the Board to reconsider and change
Rule TT1(j) in PC6 of the RRMP and to reconsider and amend the conditions of consent
to the RWSS that cover production land use utilising water from the scheme.
[2] This draft decision summarises the High Court judgment and explains the steps
that have been taken by the Board to give effect to that judgment. The final decision,
once released, should be regarded as an addendum to the Board’s final report and
decisions dated 18 June 2014.
High Court decision
[3] A total of twelve questions of law were advanced in the High Court by Fish and
Game, Royal Forest and Bird Protection Society of New Zealand Incorporated (Forest
and Bird), and Environmental Defence Society Incorporated (EDS). These appeals were
opposed by Hawke’s Bay Regional Council (HBRC), Hawke’s Bay Regional
Investment Company Limited (HBRIC Ltd), Primary Production Interest Group,2 and
Hastings District Council.
[4] 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.
[5] In the Board’s draft report farms covered by Rule TT1(j) required resource
consents if they caused or contributed to excesses of specified levels of dissolved
inorganic nitrogen (DIN) in the waters of the catchment. After receiving comments on
the draft report the Board issued a final report in which Rule TT1(j) was amended so
that farms covered by the rule that were meeting the ‘at source’ leaching rates required
1 Hawke’s Bay and Eastern Fish and Game Councils and Ors v Hawke’s Bay Regional Council and Ors [2014]
NZHC 3191. 2 Dairy NZ Limited, Federated Farmers of New Zealand Incorporated, Fonterra Co-Operative Group Limited,
Horticulture New Zealand Incorporated and Irrigation New Zealand Incorporated.
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by Rule TT1(d) were deemed not to be contributing to the specified levels of DIN in the
catchment.
[6] This change in approach between the draft and final reports, which lay at the
heart of the appeals to the High Court, can be illustrated with reference to Rule TT1(j)
as it appears in the final report:
“j. For farm properties or farming enterprises exceeding 4 hectares in area, after 31 May 2020, nitrogen leached from the land shall be demonstrated to be not causing or contributing to any measured exceedence of the Table 5.9.1B limits for the 95th percentile concentration of nitrate-nitrogen or the limit for dissolved inorganic nitrogen in any mainstem or tributary of a river or to any measured exceedence of the Table 5.9.2 groundwater quality limits for nitrate-nitrogen provided that a farm property or farming enterprise shall be deemed to be not contributing to an exceedence of the DIN limit in Table 5.9.1B if it complies with Rule TT1(d).”3 (emphasis added).
The words in bold (the deeming provision) did not appear in the draft report and were
added in the Board’s final report.4
[7] The High Court found that the inclusion of the deeming provision gave rise to
two errors of law:
“[7] … First, the factual deeming provision was not suggested by any party and was devised by the Board without consultation in circumstances in which the Board had a duty to re-consult the parties about the contents of Rule TT1(j).
[8] Second, an effect of the Board’s factual deeming provision in Rule TT1(j) is that the Regional Council will lose an important tool in its management of the amount of DIN that enters significant portions of the Catchment Area. I have concluded the factual deeming provision in Rule TT1(j) does not avoid, remedy or mitigate the adverse effects of activities on the environment or give effect to the National Freshwater Policy Statement 2011.”5
With reference to the second point the High Court reasoned that the deeming provision
created a ‘factual fiction’ that 615 farms were not contributing excessive quantities of
DIN to the waterway ‘when in fact they are likely to be doing so’.6 The High Court
considered that this factual fiction had the practical effect of the Regional Council 3 Footnotes removed. 4 Farming activities that meet Rule TT1(j) and the other requirements of Rule TT1 are permitted activities whereas
those that do not meet those requirements are restricted discretionary activities. 5 Footnote removed. 6 At paragraph [189] of the High Court decision.
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‘losing an important tool to control further degradation of a significant portion of the
Catchment Area’.7
[8] In relation to the RWSS the High Court proceeded on the understanding that the
Board believed the terms of consent for the RWSS were ‘inextricably linked’ to the
terms of PC6. Thus any changes made by the Board to Rule TT1(j) would of necessity
require it to reconsider the terms of consent for the RWSS.8
[9] It was common ground in the High Court that if a material error of law was
found, the Court should direct the Board to reconsider the relevant portion of its report
in light of any findings by the Court and that:
“[218] … The Board is seized of significant quantities of evidence and information that could not be properly conveyed to me when dealing with appeals based only on questions of law. I therefore direct the Board to reconsider and change Rule TT1(j). When the Board changes Rule TT1(j) it will also need to amend the conditions of consent to the Ruataniwha Water Storage Scheme project. In making this direction I am not suggesting the Board should necessarily revert to its draft Rule TT1(j). The Board will need to consider a range of possibilities and ensure the parties have had a fair opportunity to comment on the final version of Rule TT1(j).”
The Board was directed to avoid creating a factual fiction and to ensure that Rule TT1(j)
gave effect to all relevant provisions of the National Policy Statement for Freshwater
Management 2014 (NPSFM 2014).9
[10] After the decision was issued Forest and Bird sought to have the judgment
recalled and the Court’s direction concerning the RWSS extended as to whether or not
the consent should have been granted. By minute issued on 18 December 2014, Collins
J declined the recall application on the basis that he had intentionally crafted directions
to the Board to ‘amend the conditions of consent’.10 Consequently it is only the
conditions of consent that are in issue, not the decision to grant the consent.
[11] On 10 March 2015 the Board sought clarification from the High Court as to
whether the Court's direction was intended to: 7 At paragraph [195] of the High Court decision. 8 At paragraph [215] of the High Court decision. 9 At paragraph [220] of the High Court decision. 10 High Court Minute No. 4 dated 18 December 2014 at paragraph [2].
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• compel the Board to amend the conditions of consent irrespective of the
outcome of the Board's reconsideration of Rule TT1(j); or
• provide the Board with discretion to amend, or not amend, the conditions
of consent depending on the outcome of its reconsideration of Rule
TT1(j).
A minute issued by Collins J the same day indicated that the High Court was functus
officio11 and unable to assist unless all parties to the appeal consented.12 The necessary
unanimous consent was not forthcoming.
Steps to address matters referred back to the Board
Initial steps
[12] On 22 December 2014 the Board drew the attention of all parties to the High
Court decision and to a memorandum regarding procedural matters that had been
received by the Board from counsel for HBRC and HBRIC Ltd. Parties were advised
that once the appeal period expired on 16 January 2015 (and assuming no applications
for leave to appeal to the Supreme Court were lodged by that time) the Board would
give consideration to the matters referred back to it by the High Court. The notice stated
that if any parties wished to provide comment in relation to procedural matters, they
should do so by 20 January 2015.
[13] Comments were received from:
• HBRC and HBRIC Ltd;
• Jeremy Dunningham;
• Hawke’s Bay Environmental Water Group;
• Primary Production Interest Group;13
11 Meaning the Court had completed its official functions and would not ordinarily have a further role to perform in
this matter. 12 High Court Minute No. 5 dated 10 March 2015 at paragraph [2]. 13 See footnote 2.
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• Fish and Game;
• Forest and Bird; and
• EDS.
Having considered those comments the Board decided to convene a conference with the
parties.
Conference on 2 February 2015
[14] A minute issued by the Board on 23 January 201514 advised the parties that three
interrelated issues would need to be discussed at the conference:
• the proposed revision of Rule TT1(j) that parties wished to advance as a
result of the High Court decision;
• the scope of the reconsideration that was required as a result of the High
Court decision; and
• whether further evidence should be permitted.
A timetable was set by the Board to enable interested parties to provide their proposed
changes to Rule TT1(j), in indicative form, prior to the conference.
[15] The conference was held in Napier on 2 February 2015. With the exception of
Hastings District Council, all the parties involved in the High Court appeal were
represented by counsel. Three other parties appeared in person and a relatively large
number of people attended the conference as observers.
[16] At the conference the possibility of narrowing issues was explored in detail.
There was considerable debate between the parties about whether some of the proposed
amendments advanced by them were within the scope of the High Court’s referral back
to the Board. There was broad agreement between the parties represented by counsel
that if the Board provided further directions about whether some of the proposed 14 Board Minute No. 33.
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amendments were within scope, it might be possible for a consensus to be reached as to
the rewording of Rule TT1(j).
Scope issues
[17] On 4 February 2015 the Board issued a minute15 advising the parties that the
following proposed amendments to Rule TT1(j) were beyond the scope of the referral
back to the Board:
• deletion of the rule in its entirety;
• confining the DIN limit to circumstances where the Table 5.9.1B
Macroinvertebrate Community Index (MCI) indicator scores in PC6 are
not being met;
• a trigger in Rule TT1(j) that would require a resource consent to be
obtained when 80% of the DIN limit was reached (except for low
intensity farming systems);
• amending the definition of ‘low intensity farming system’;16 and
• amending Policy TT4(2) so that there would be a review in 2025 relating
(amongst other things) to whether the MCI indicator values are likely to
be met.
The Board acknowledged, however, that the rewording of Rule TT1(j) might give rise to
consequential amendments under section 149RA of the RMA.
15 Board Minute No. 34. 16 PC6 includes the following definition:
‘Low intensity farming system Means farm properties or farming enterprises that contain no more than 8 stock units per hectare including permanent horticultural and viticultural crops (such as orchards, vineyards) and lifestyle properties; but does not include a) Properties used for the production of rotational vegetation crops; b) Dairy farms; c) Grazed forage crops.’
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Admission of further evidence
[18] The possibility of further evidence being admitted was also addressed in the
Board’s minute of 4 February 2015.
[19] In the Board’s view the effect of the NPSFM 2014 could be satisfactorily
addressed by submissions. Indeed, this appeared to be conceded by most, if not all the
parties participating in the conference. Consequently the Board declined to admit further
evidence on that topic.
[20] On the other hand the Board was prepared to receive information relating to the
further section 32 analysis that would have to be undertaken:
“…first, the approximate number of farms that might require resource consents under any proposed rewording having regard to the rulings as to scope; secondly, the indicative costs and benefits...”.17
Given the discussion at the conference, the Board expressed the hope that both these
matters could be addressed on an agreed basis (and in the end those matters were dealt
with in that way).
Meeting of parties on 26 February 2015
[21] In addition to the matters already discussed, the minute of 4 February 2015
directed the parties to hold a meeting by 27 February 2015 (including directions as to
the conduct of the meeting). The purpose of the meeting was to enable the parties to
discuss proposals for the rewording of Rule TT1(j) and any consequential amendments
to the RWSS resource consent conditions.
[22] Detailed directions were given by the Board18 to ensure that all of the proposals
to be considered at the meeting (including supporting reasons and comments), as well as
the responses to the proposals, were pre-circulated. Extensive material was provided by
the parties and that material is before the Board.
17 Board Minute No. 34. 18 See Board Minutes No. 34 and 35.
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[23] The parties met on 26 February 2015. Following the meeting they provided the
Board with joint memoranda (one relating to Rule TT1(j) and the other to the RWSS
resource consent conditions) outlining the issues that were able to be resolved and those
that still remained in contention. The Board found these memoranda most helpful.
[24] When arriving at the conclusions that will be outlined shortly, the Board took
into account all the material that was provided as a result of the various steps discussed
above.
Environment Court decision on Plan Change 5
[25] By memorandum to the Board dated 31 March 2015, Counsel for HBRC and
HBRIC Ltd brought to the Board’s attention that the Environment Court had issued its
decision19 on one of the two Plan Change 5 (PC5) appeals that were still outstanding.
That decision relates to the Regional Policy Statement (RPS) objectives concerning
groundwater quality.
[26] For reasons expressed in the memorandum of counsel for HBRC and HBRIC
Ltd it was submitted that the Environment Court decision was not relevant to the
matters now before the Board. By minute dated the 2 April 201520 the Board invited
comments by 10 April 2015 from other parties as to the relevance or otherwise of the
Environment Court decision. Comments were received from 10 parties, with all of those
comments challenging the proposition that the Environment Court decision was
irrelevant. Counsel for HBRIC Ltd lodged a memorandum in reply.21
[27] The effect of the Environment Court’s decision was to return Objectives 21 and
22 of the Proposed RPS to substantially the same form as in the Operative RPS and not
that promoted by PC5. In reconsidering Rule TT1(j) the Board has given effect to the
operative form of the RPS which in turn is consistent with the Environment Court
19 Ngati Kahungunu Iwi Inc v Hawke’s Bay Regional Council [2015] NZEnvC 50. 20 Board Minute No. 42. 21 Extensions of time were granted by the Board in Board Minute No.43 for late comments from two parties and the
memorandum in reply from HBRIC Ltd. The Board declined to consider a further comment from Ngati Kahungunu Iwi Incorporated on the basis that the Iwi had already commented and its further comment was well outside of the timeframe set by the Board.
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decision. When considering amendments to the RWSS resource consent conditions the
Board has had regard to the Environment Court decision on PC5.
Amendments to Rule TT1(j)
Introduction
[28] Given the High Court decision it is accepted that the deeming provision will
have to be removed from Rule TT1(j). It will be deleted accordingly.
[29] As already mentioned, the possibility of deleting Rule TT1(j) in its entirety was
raised at the conference on 2 February 2015. The Board concluded that deletion would
not be in accordance with the High Court direction to ‘reconsider and change’22 the rule.
In the Board’s view it is inherent in the Court’s direction that the Rule should remain in
one form or other.
[30] There was general agreement at the conference on 2 February 2015 that low
intensity farming systems23 should be excluded from the operation of Rule TT1(j) so
that farms in that category would not be required to obtain resource consents. This
reflects that farms and farming enterprises within that category do not represent a
significant threat to the waters within the catchment and there is little (if anything) that
farmers within that category can do to reduce the leaching of nitrogen.
[31] The Board agrees that low intensity farming systems should be excluded from
the operation of Rule TT1(j). Policies TT4(1)(a) and (b) of PC6 expressly recognise that
‘low intensity farming systems have low nitrogen losses’. Significantly Fish and Game,
Forest and Bird, and EDS also supported the exclusion, which is consistent with the
Board’s finding that farmers should not be required to unnecessarily obtain resource
consents.
[32] Given those matters the Board needed to resolve whether:
22 At paragraph [218] of the High Court decision. 23 See footnote 16 for the definition of ‘low intensity farming system’.
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• there should be a 10 hectare cap on the ‘low intensity farming system’
exclusion;
• notwithstanding the definition of ‘low intensity farming system’24 there
should be a further exclusion in Rule TT1(j) for farms carrying fewer
than 11 stock units per hectare (SU/ha);
• forestry should be excluded from the operation of the rule;
• permanent horticulture and viticulture should also be excluded;
• footnote 43 to Rule TT1(j) should make explicit reference to the 80%
trigger; and
• there should be a contributing-catchment or sub-catchment approach.
While a significant measure of agreement was reached on most of these matters, the
parties remained divided about the 11 SU/ha issue and the contributing-catchment
versus sub-catchment approach.
[33] We now consider each of these matters.
10 hectare cap for low intensity farming system
[34] Initially HBRC proposed the 10ha cap because it was concerned that an
unfettered exclusion for low intensity farming would result in around 73% of the
catchment being exempt. However, the Regional Council has now established that the 8
SU/ha threshold in the definition of a ‘low intensity farming system’ means that only
‘hard hill country’ farms would be exempt. These primarily occur on Land Use
Capability (LUC) class VII land and would total around 20 farms. On that basis HBRC
abandoned its proposal for the 10ha cap.25
[35] The cap was not supported by any other parties.
24 See footnote 16 for the definition of ‘low intensity farming system’. 25 At paragraphs 6-8 of the joint memorandum of parties dated 3 March 2015 regarding the proposed wording of Plan
Change 6, Rule TT1(j) and Pol TT4(1)(g).
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[36] In the Board’s view the cap would achieve little, if anything, in terms of
enhancing water quality. Added to that, the cap would almost certainly increase the
number of farms requiring consents and this would be contrary to the Board’s
philosophy that farmers should not be unnecessarily required to obtain consents. Again
the Board finds it significant that Fish and Game, Forest and Bird, and EDS did not
support the cap, and that the cap was ultimately abandoned by HBRC.
[37] Taking all of these matters into account the Board has concluded that the cap
would not represent the most appropriate way of achieving the Objectives and Policies
of PC6. Therefore the Board will not be imposing a 10ha cap in Rule TT1(j) for low
intensity farming.
Exclusion of forestry
[38] At the conference on 2 February 2015 there was relatively strong support for the
exclusion of forestry.26 This reflected that, except during harvesting, forestry is a low
leaching land use and there are limited mitigation options for further reducing any
leaching. Nevertheless, concerns were expressed about how the activity could be
defined and in particular whether wood-lots forming part of a farming operation or
enterprise should qualify.
[39] Following the meeting on 26 February 2015 all but two parties who attended the
conference agreed that only ‘plantation forestry’ should be excluded from Rule TT1(j).
It was contemplated that this exemption would capture stand-alone forestry operations.
In other words, wood-lots would not be excluded from the rule.
[40] The Board believes that the proposed solution is pragmatic and sensible. This
outcome reflects that plantation forestry is a low leaching activity and that Rules 7 and 8
of HBRC’s Operative RRMP will provide the necessary safeguards during harvesting.
Moreover, the exclusion will reduce the number of consents that might otherwise be
required, which is consistent with the Board’s philosophy. Taking all of these matters
into account the Board has concluded that the exclusion of ‘plantation forestry’ from
26 However, Mr Renouf took a contrary view.
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Rule TT1(j) represents the most appropriate way of achieving the Objectives and
Policies of PC6.
Exclusion of horticulture and viticulture
[41] Horticulture New Zealand sought to have permanent horticultural and
viticultural crops specifically excluded from the operation of Rule TT1(j). Given that
those activities are expressly included in the definition of ‘low intensity farming
system’27 the Board does not accept that the exclusion is necessary.
The 80% trigger
[42] As already mentioned, the Board has ruled that inclusion of a trigger in Rule
TT1(j) when 80% of the DIN limit is reached is beyond scope. Such an amendment
would effectively lower the resource consent threshold to approximately 0.64mg/l of
DIN (80% of 0.8mg/l). Given that the 0.8mg/l level set by the Board was not challenged
on appeal it is beyond the Board’s jurisdiction to revisit it now.
[43] The Board left open whether or not the 80% trigger needed to be specifically
referred to in footnote 43 (which is a footnote to Rule TT1(j)). That footnote states:
“By 31 May 2018 HBRC will develop a Procedural Guideline in collaboration with primary sector representatives setting out how POL TT4(1)(h) and conditions (j) and (k) of Rule TT1 will be implemented. The Guideline will include, but not be limited to: the process for monitoring water quality trends and alerting affected farming properties if water quality limits are being approached; delineation of the ‘capture zone’ for the relevant water body (the area of groundwater or surface water contributing to the particular part of the water body in question); and, where Rule TT2 is triggered, an adaptive management process for reducing nitrogen leaching from affected farming properties based on the implementation of progressively more stringent on-farm management practices.” (Emphasis added)
As will be seen by the highlighted portion of this footnote, the Procedural Guideline
must include a process for alerting farmers if water quality limits are being approached.
[44] According to the joint memorandum concerning Rule TT1(j) all parties
participating in the meeting on 26 February 2015 agreed that it was important for
27 See footnote 16 for the definition of ‘low intensity farming system’.
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farmers to receive early warning if limits are being approached. The memorandum also
confirms that the Procedural Guidelines referred to in the footnote will include triggers
prompting HBRC to provide early warning to farmers so that breaches of water quality
limits are avoided.
[45] Originally EDS had proposed that there should be explicit reference in footnote
43 to the 80% trigger. However, that suggestion was opposed by HBRC on a number of
grounds: the 80% trigger would not achieve any resource management benefit; there
was no evidence as to the appropriateness, or otherwise, of a trigger at that particular
level; depending on hydrogeological characteristics the appropriate alert level might
differ throughout the catchment; and if a precise trigger was included for DIN, but not
for the other attributes in Table 5.9.1B, PC6 would lack coherence.
[46] Faced with those arguments, EDS conceded that it was unnecessary to
specifically include the 80% warning trigger in footnote 43. But EDS emphasised that
the procedural guideline needs to be ‘directive and clear’.
[47] Like EDS the Board found the matters advanced by HBRC to be compelling.
The Board is also satisfied that footnote 43 as it stands (together with the other
provisions of PC6)28 will give effect to Policy A1(b) of the NPSFM 2014 which requires
Regional Plans to ‘establish methods (including rules) to avoid over-allocation’. The
Board notes that the same wording was used in the 2011 Freshwater Management
National Policy Statement.
11 Stock Units per hectare
[48] Initially the Primary Production Interest Group29 proposed that farms carrying
fewer than 11 SU/ha should be excluded from the operation of Rule TT1(j). Later that
approach was modified at the meeting on 26 February 2015 in favour of a new proposal
by Federated Farmers and Beef and Lamb New Zealand (Beef and Lamb) which would
reduce the level to 9 SU/ha on ‘an effective farmed area basis’.30
28 For example, on-land nitrogen controls based on the LUC leaching rates. 29 See footnote 2. 30 At paragraph 26 of the joint memorandum of parties dated 3 March 2015 regarding the proposed wording of Plan
Change 6, Rule TT1(j) and Pol TT4(1)(g).
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[49] In support of the new proposal the following points are recorded in the joint
memorandum relating to Rule TT1(j):
“26.1 The Board's intention (paragraphs 390 & 491) that land use consent should only be required where use of production land results in exceedances of instream nitrogen targets;
26.2 The Board's intention (paragraphs 446 & 491) that the majority of farms should not be required to obtain resource consent;
26.3 The effect of the Council's approach to managing exceedances of instream nitrogen limits by managing nitrogen loading on a contributing catchment basis, which will require all but about 20 of the 596 farms greater than 10 hectares in the catchment above Shag Rock to obtain resource consent to farm;
26.4 That farm records are required to be kept, so that nutrient budgets can be calculated and good management practices developed; and
26.5 That the average stocking rate in the area has been about 9.5 SU/ha over the last 25 years or so (based on the area in pasture).”
On that basis Federated Farmers and Beef and Lamb seek an exception for farms able to
demonstrate that they are carrying fewer than 9 SU/ha on an effective farmed area basis.
They expect this would result in approximately 50% of sheep and beef farms in the
catchment being exempt from the requirement to obtain a resource consent.
[50] The Board understands that this proposal was not supported by any other parties
for a number of reasons, including: lack of technical information on leaching rates from
those properties and their ability to avoid or mitigate nitrogen losses; lack of clarity as
to the number of farms that would be exempt; changes to the definition of ‘low intensity
farming system’ had already been ruled out of scope by the Board; and 9 SU/ha on
‘effective farmed area’ basis would roughly equate with the 8 SU/ha on the ‘whole of
farm’ basis currently appearing in PC6.
[51] The Board cannot accommodate the proposed amendment. Policies TT4(1) and
TT6(1)(b) and Rules TT1(d) and TT2(a) specifically adopt a ‘whole of farm property or
whole of farming enterprise’ approach to the management of DIN and nitrate-nitrogen.
The definition of ‘Farm Environmental Management Plan’ also reflects a ‘whole of
farm’ approach, as does paragraph (d) of Schedule XXI of PC6. Consequently it is well
beyond the Board’s jurisdiction to make the fundamental changes that would be
required, especially where there is no evidence supporting the change. In any event
23
there are indications that the 9 SU/ha on an effective area basis is roughly equivalent to
8 SU/ha on a whole of farm basis.
[52] If it becomes apparent in the future (for practical, technical or other reasons) that
the approach to low intensity farming needs to be revisited, it would be open to HBRC
to consider a Plan Change.
Contributing catchment v sub-catchment
[53] HBRC advocated a ‘contributing-catchment’ (also described as a ‘whole of
catchment’) approach to the management of DIN. The Council reasoned that all farms
above a monitoring point where the DIN level is exceeded contribute to that
exceedance. Thus requiring resource consents for all farms that contribute would enable
the Regional Council to impose conditions responding to both the level of contribution
and the ability to reduce a farm’s nitrogen footprint.
[54] Under this approach the whole of the Tukituki Catchment above the Shag Rock
monitoring point (which is towards the bottom of the catchment) would be over-
allocated. HBRC acknowledges that if this approach is adopted it is likely that several
hundred farms will require resource consents by 2020.
[55] This approach is supported by Fonterra, Dairy NZ, Horticulture NZ, Federated
Farmers, Fertilizer Association of New Zealand, Beef and Lamb, Ruataniwha Water
Users Group, and Ian McIntosh.31
[56] On the other hand Fish and Game, Forest and Bird, and EDS support a sub-
catchment approach. They contend that this approach is flagged by Policy TT4(1)(g), to
which we will return shortly. They reason that their ‘fine grained’ approach (which they
contrast with the ‘blunt’ approach advocated by HBRC and its supporters) would
capture those properties that are responsible for cumulatively causing an exceedance of
the DIN limit. Such an approach would therefore promote efficiency because it would
31 In the case of Mr McIntosh, subject to a reservation concerning sampling points for DIN as outlined in the joint
memorandum of parties dated 3 March 2015 regarding the proposed wording of Plan Change 6 Rule TT1(j) and Pol TT4(1)(g).
24
be directed towards those properties that should carry responsibility. It would have the
added advantage that fewer farms would be required to obtain resource consents.
[57] Subject to a qualification that will be explained shortly, the Board does not see
any justification for departing from the approach already reflected by PC6.
[58] In its final report the Board said:
“[397] …we should acknowledge that Fish and Game and EDS contended that nutrient management should be on a sub-catchment basis. While this may be ideal in a perfect world, the Board is conscious of the practical difficulties of achieving this in the Tukituki catchment and believes that these difficulties cannot be overstated. The Board therefore concluded that such a requirement would be too onerous.”32
That finding, which relates to the management of nitrogen, was not disturbed by the
High Court. The Board cannot now arrive at a different finding, even in the narrow
context of Rule TT1(j).
[59] It was suggested by those supporting a sub-catchment approach that Policy
TT4(1)(g) provides the springboard for such an approach. That policy, which relates to
the implementation of nitrogen limits and targets, states that HBRC will:
“(g) Require the use of production land in those Tukituki River sub-catchments where there are exceedances of Table 5.9.1B (surface water) or Table 5.9.2 (groundwater) nitrate-nitrogen limits and targets to be subject to a land use consent under Rule TT2 if the targets are still exceeded or become exceeded after 1 June 2020;”33 (emphasis added)
The Board agrees with HBRC that, rather than defining the scale of analysis, the words
‘Tukituki River sub-catchments’ describe the geographic location of production land
uses.
[60] Any thought that the Board intended to adopt a contributing-catchment or sub-
catchment approach to DIN is effectively dispelled by Policy TT1 of PC6:
32 Footnotes removed. 33 Footnotes removed.
25
“POL TT1 SURFACE WATER QUALITY LIMITS, TARGETS, AND STATE INDICATORS
1. In surface water bodies in Water Management Zones 1, 2, 3 and 5 Hawke’s Bay Regional Council will (in Table 5.9.1B):
(a) Set instream water quality concentration limits and targets for dissolved inorganic nitrogen (DIN) to provide for maintenance or enhancement of the habitat and health of aquatic ecosystems, macroinvertebrates, native fish and trout (with the targets to be met by 1 July 2030);
(b) Set instream water quality concentration limits and targets for nitrate-nitrogen (NO3-N) to protect aquatic fauna from toxicity effects (with the targets to be met by 1 July 2030);
(c) Set instream water quality concentration limits and targets for dissolved reactive phosphorus (DRP) and instream targets for periphyton biomass and cover (with the targets to be met by 1 July 2030).
2. In surface water bodies in Water Management Zone 4 Hawke’s Bay Regional Council will (in Table 5.9.1B) set dissolved inorganic nitrogen and dissolved reactive phosphorus limits that reflect existing instream water quality concentrations in recognition that the existing level of periphyton biomass and cover is currently acceptable and it should not be permitted to increase due to that Zone’s existing high biodiversity values.
…”.34 (Emphasis added)
In-stream water quality limits and targets for DIN are set for each of the Water
Management Zones mapped in Schedule XV of PC6,35 not by reference to a
contributing-catchment or sub-catchments.
[61] This same approach is adopted in Table 5.9.1B, which states DIN limits and
targets for each Water Management Zone.36 Similarly, Policy TT6(2), which describes
the decision-making criteria for land associated with a community irrigation scheme,
reflects the Water Management Zone approach.
[62] It follows that either the contributing-catchment or sub-catchment approach
would require (at the very least) a significant restructuring of Policy TT1 and Table
34 Footnotes removed. 35 This approach was recorded by Collins J at paragraph [57] and [71] of the High Court decision without any
suggestion that it should be changed. 36 In the case of Zones 1, 2, 3 and 5 the DIN level is 0.8mg/l and for Zone 4 the DIN level is 0.150mg/l.
26
5.9.1B. The Board has concluded that this would be well beyond the scope of the
matters referred back to it by the High Court.
[63] There is also another reason for staying with the Water Management Zone
approach already adopted by the Board. In their agreed statement, which was provided
in response to Board Minute No. 34, the Water Quality experts comment:
“Spatial framework for determining allocation status: we have highlighted some of the limitations of the sub-catchment and whole contributing catchment (i.e. upstream of Shagrock) approaches to determining allocation status …. We believe there is merit in a considered exploration of other approaches that could reduce these limitations.”37
Those observations reflect evidence already before the Board about the limitations in
knowledge regarding the movement of groundwater (and any DIN in that water)
beneath the Ruataniwha Plains.
[64] The Board is not therefore prepared to depart from the Water Management Zone
approach. However, as already foreshadowed, the proposals before the Board have
prompted it to make a refinement to Rule TT1(j).
[65] As it stands Rule TT1(j) refers to the measurement of DIN ‘in any mainstem or
tributary of a river’.38 Included in the amendments suggested by Fish and Game is a
rewording that would result in DIN being measured ‘at the nearest downstream HBRC
monitoring site in the relevant mainstem or tributary’.39
[66] Adoption of the wording suggested by Fish and Game will improve Rule TT1(j)
in a number of ways:
• compared with the current wording it defines much more accurately
where the measurement of DIN is to take place;
37 At paragraph 6(d)(v) of Agreed Joint Statement to the Board of Inquiry from the Water Quality Experts, dated 10
February 2015. 38 Rule TT1(j) is quoted at paragraph [6] above. 39 At paragraph 3 of the Fish and Game memorandum dated 12 February 2015.
27
• while attempting to establish a connection between leaching from
individual farms and in-stream DIN is fraught,40 the rewording will more
accurately reflect cause and effect; and
• more accurate targeting of cause and effect will reduce the number of
farms requiring a resource consent.
Other matters
[67] Five other matters need to be mentioned.
[68] First, an error in the definition of ‘low intensity farming system’ has been
identified (reference to ‘rotational vegetation crops’ instead of ‘rotational vegetable
crops’). None of the parties participating in the meeting on 26 February 2015 had any
objection to the error being corrected. It is accordingly corrected under section 149RA
of the RMA. A track changed version of the definition is contained in Appendix 1.
[69] Secondly, Policy TT4(1)(g) will need to be amended to reflect the changes made
to Rule TT1(j). Those amendments are also to be made under section 149RA of the
RMA.
[70] Thirdly, with the benefit of the additional information supplied in response to
Board Minutes No. 34 and 35 (the number of resource consents and the indicative costs
and benefits),41 the Board has conducted a further section 32 analysis in relation to the
changes it has made to Rule TT1(j). It is satisfied that, in conjunction with the other
provisions of PC6 and within the constraints of the High Court directions, Rule TT1(j)
as now amended is the most appropriate way of achieving the Objectives and Policies of
PC6.
[71] Fourthly, as directed by the High Court the Board has considered whether the
reworded Rule TT1(j) gives effect to all relevant provisions of the NPSFM 2014. It is
satisfied that it does. Indeed, no comments received from the parties relating to the
meaning and effect of the NPSFM 2014 have led the Board to consider otherwise. 40 See paragraph [449] of the Board’s final report which is quoted at paragraph [84] below. 41 See paragraph [20] above.
28
[72] Finally, at the request of the Primary Production Interest Group42 the Board
emphasises that the foregoing assessment is limited to its reconsideration of Rule
TT1(j). Any wider finding that PC6 as a whole gives effect to the NPSFM 2014 would
have been beyond the scope of the High Court’s referral back to the Board. Thus the
Board has not attempted to assess whether the DIN limit or the LUC approach gave
effect to that NPSFM.
Amendments made by the Board to Rule TT1(j) and Policy TT4(1)(g)
[73] The amendments that the Board has made to Rule TT1(j) and Policy TT4(1)(g)
give effect to the foregoing conclusions that it has reached. In all other respects they
reflect the proposed rewording advanced in the joint memorandum relating to Rule
TT1(j) which was supported by most of the parties participating in the meeting on 26
February 2015.
[74] As amended Rule TT1(j) now reads:
“j. After 31 May 2020, for farm properties or farming enterprises exceeding 4 hectares in area excluding:
(i) low intensity farming systems; and
(ii) those that solely comprise plantation forestry (being forestry operations deliberately established for commercial purposes),
nitrogen leached from the land shall be demonstrated to be not causing or contributing to any measured exceedence of the Table 5.9.1B limits for the 95th percentile concentration of nitrate-nitrogen or the limit for dissolved inorganic nitrogen at the downstream HBRC monitoring site nearest to the farm property or farming enterprise in the relevant mainstem or tributary of a river or to any measured exceedence of the Table 5.9.2 groundwater quality limits for nitrate-nitrogen.”43
[75] As a consequence Policy TT4(1)(g) now reads:
“(g) Require the use of production land on properties greater than 4 hectares in area in those Tukituki River sub-catchments where there are exceedences of Table 5.9.1B (surface water) or Table 5.9.2 (groundwater) nitrate-nitrogen limits and targets to be subject to a land use consent under Rule TT2 if the targets are still exceeded or become exceeded after 1 June 2020 unless the farm property or farming
42 See footnote 2. 43 Footnotes removed.
29
enterprise is a low intensity farming system or solely comprises plantation forestry;”44
[76] Tracked change versions of Rule TT1(j) and Policy TT4(1)(g) are contained in
Appendix 1.
RWSS resource consent conditions
Introduction
[77] When considering the appeals relating to the RWSS the High Court commented:
“[212] …it is clear that the Board wanted to ensure that the terms of consent for the Ruataniwha Water Storage Scheme mirrored the terms of Proposed Plan 6 prepared by the Board.”
Some parties claimed that this compelled the Board to reinstate the requirement in the
draft decision for the RWSS to immediately meet the 0.8mg/l DIN limit.
[78] By its very nature an application for a resource consent arises when an activity
does not comply with the relevant rules in a plan. If it complies the activity would
mirror the Plan and constitute a permitted activity.
[79] In this case the RWSS application was before the Board because the proposed
scheme did not qualify as a permitted activity under PC6. The Board had to determine
whether or not consent should be granted – a discretionary exercise. When discharging
that function the Board was required to ‘have regard to’ the matters listed in section 104
of the RMA, which included any relevant provisions of PC6.
[80] Given that the RWSS application concerned a community irrigation scheme,
Policy TT6(2) of PC6 was of particular relevance:
“POL TT6 DECISION-MAKING CRITERIA – USE OF PRODUCTION LAND
…
Land Associated with the Operation of a Community Irrigation Scheme
44 Footnotes removed.
30
2. When considering an application for a land use consent to authorise use of production land on multiple farm properties or farming enterprises taking water from a Community Irrigation Scheme, the consent authority must have regard to the extent to which management plan and/or contractual mechanisms governing the Scheme’s operation ensure that:
(a) In each respective Water Management Zone, the farm properties or farming enterprises serviced by the Scheme will not collectively leach an amount of nitrogen that, in combination with nitrogen leached from non-Scheme farm properties or farming enterprises as a result of production land use activities permitted by this Plan or authorised by consents already granted, cause the nitrate-nitrogen and dissolved inorganic nitrogen limits in Table 5.9.1B to be exceeded;
(b)Where the farm property or farming enterprise is in Water Management Zone 5, appropriate riparian management and wetland enhancement measures are implemented to minimise nutrient losses and reduce macrophyte growth in order to improve the life-supporting capacity of the river or stream;
(c) In each respective Water Management Zone, the farm properties or farming enterprise serviced by the Scheme will collectively:
(i) In Water Management Zones where the Table 5.9.1B DRP concentration targets are exceeded, not cause DRP concentrations in the Tukituki River or its tributaries to increase compared with a baseline measured or modelled at the time of any resource consent application and ensure that all reasonable and practicable opportunities have been taken to reduce phosphorus losses;
(ii) In Water Management Zones where the Table 5.9.1B DRP concentration limits are not exceeded, not cause those limits to be exceeded;
(d) Any farm property or farming enterprise serviced by the Scheme prepares and maintains a Farm Environmental Management Plan prepared in accordance with Schedule XXII which:
(i) Adequately describes the farm property or farming enterprise (including soils, climate, topography and environmental risks) and the proposed production land use on the farm property or farming enterprise;
(ii) Contains a Nutrient Budget for the farm property or farming enterprise;
(iii) Contains a Phosphorus Management Plan for the farm property or farming enterprise;
(iv) Describes how industry good practices will be implemented to minimise nutrient (nitrogen and phosphorus) losses, sediment losses and faecal bacteria discharges from the farm property or
31
farming enterprise appropriate to the production land use and land type;
(e) Any farm property or farming enterprise serviced by the Scheme is operated in accordance with its Farm Environmental Management Plan;
(f) Scheme-wide nutrient loss compliance modelling, auditing and enforcement procedures are implemented for nitrogen and phosphorus.” (emphasis added)
This policy required the Board to carry out an evaluative exercise involving a range of
matters, including the extent to which the DIN limits in Table 5.9.1B would be met. It
did not, however, impose a rigid requirement for those limits to be mirrored by the
terms of the RWSS consent.
[81] In the High Court it was argued that the Board had failed to have regard to this
policy by permitting the RWSS to exceed the DIN limit in Table 5.9.1B.45 That
argument was rejected by the Court on the basis that the obligation under section 104 to
‘have regard to’ is less prescriptive then the duty created by section 67(3)(a) to ‘give
effect to’ a National Policy Statement.46 This reflects the point that has just been made.
[82] Apart from taking into account the relevant provisions of PC6 the Board was
required by section 104 to have regard to:
“(a) any actual and potential effects on the environment of allowing the activity.”
As is apparent from the Board’s final report, this obligation required the Board to
consider a wide range of effects if the RWSS was allowed. These included both positive
and adverse effects.
[83] It seems the Judge’s impression that the Board wanted to ensure the terms of the
RWSS consent ‘mirrored’ PC6 arose from the manner in which the Board addressed the
problem47 in its draft report (which gave rise to the deeming provision in Rule TT1(j))
and made consequential amendments to the RWSS consent conditions.
45 At paragraph [209] of the High Court decision. 46 At paragraph [211] of the High Court decision. 47 See paragraph [5] above.
32
[84] As the Board explained in its final decision:
“[449] Given the wording of Rule TT1(j) as it stood in the draft report, the Board acknowledges that the outcome flagged by HBRC in its comment is correct. HBRC is also correct in surmising that this outcome reflected an error and was not intended by the Board. It is inappropriate to require individual farmers or applicants for consent to meet a DIN limit in the receiving water for the following reasons:
• the DIN concentration in the receiving water will be the result of many discharges and it is impractical for an individual farmer to be held responsible for effects arising from other farmers’ activities;
• the DIN concentration in the receiving water will vary as stream flows vary and as natural processes like denitrification occur. Both of these factors are beyond the control of an individual farmer;
• attenuation of nitrogen concentrations will occur between nitrogen release at the root zone and arrival in the receiving water, a natural process not controlled by the farmer which may take some time;
• it is the responsibility of HBRC to avoid the exceedence of DIN limits in the receiving water by regulating the level of nitrogen discharged at the root zone by the farmer and monitoring the subsequent DIN concentration in the receiving water. If observed DIN levels are too high then future adjustment by HBRC of the LUC root zone leaching rates may be required; and
• it is then clear that the responsibility of the farmer is simply to comply with the LUC root zone leaching rates set in a resource consent or as permitted by Rule TT1.
Having considered possible solutions, including those proposed by HBRC, the Board decided to add a proviso to Rule TT1(j) to the effect that a farm property or farming enterprise shall be deemed to be not contributing to an exceedence of the DIN limit in Table 5.9.1B if it complies with the LUC leaching rates in Rule TT1(d).”
This explanation comprises two discrete components: first, an explanation as to why it
was inappropriate to require individual farmers or applicants for consent to meet a DIN
limit in the receiving water; secondly, the solution the Board adopted (inserting the
deeming provision).
[85] The High Court decided that the solution adopted by the Board (inserting the
deeming provision) was unlawful, and that provision has been removed accordingly.
However, the underlying findings that explained why the Board had adopted an LUC
leaching rate regime, which are fundamental to the Board’s approach, were not
disturbed.
33
[86] This is apparent when the High Court decision is read in its entirety.48 As
recorded in the judgment all the grounds of appeal relating to Rule TT1(j) were
confined to the deeming provision.49 When identifying themes arising from the appeals
Collins J specifically stated that all of them ‘relate to the factual deeming provision of
Rule TT1(j)’,50 which reflected his approach to each ground of appeal. And the High
Court’s conclusions51 about the errors that had been made by the Board are confined to
the deeming provision.
[87] Having decided to include the deeming provision in PC6, the Board needed to
determine in the final report whether any changes needed to be made to the terms of the
RWSS:
“[1253] We have already accepted in relation to PC6 that it is not appropriate for farm properties or farming enterprises to be made responsible for achieving DIN limits in the receiving water which may be the result of other activities. Given that the same philosophy should apply to farms within the RWSS, we have deleted reference to the 0.8mg/l DIN limit in Table 5.”
Rather than wanting the RWSS to ‘mirror’ PC6, the Board was applying its philosophy
that applicants for consent should not be required to meet a DIN limit in the receiving
water and that the LUC leaching regime should be applied as the means of controlling
nitrogen leaching at source.
[88] Some parties maintained that a number of paragraphs in the final report52
illustrated that the Board intended the RWSS to ‘mirror’ the DIN standards in Table
5.9.1B of PC6. Those paragraphs refer to the Board being satisfied that ‘the RWSS is
consistent with the provisions of PC6’; the farming industry ‘can operate within the
parameters of nitrogen and phosphorous limits that are set in PC6’; such intensification
will have to satisfy ‘the strict controls imposed by PC6’; and land use consent was
granted on the basis that it was ‘subject to conditions that reflect PC6’. All of those
statements were in the context of the deeming provision in Rule TT1(j) and the Board’s
approach to the management of nitrogen through LUC controls. 48 Indeed, while Collins J quoted the ‘solution’ component of paragraph [449] he did not make reference to the other
component: See paragraph [86] of the High Court decision. 49 At paragraphs [134] - [140] of the High Court decision. 50 At paragraph [140] of the High Court decision. 51 At paragraph [216] of the High Court decision. 52 Paragraphs [842], [892], [901] and [910] of the Board’s final report and decisions.
34
[89] For those reasons the Board is satisfied that the High Court decision does not
compel the Board to reinstate the requirement for the RWSS to immediately comply
with the 0.8mg/l DIN limit. Indeed, as we are about to discuss, that approach would
frustrate the grant of consent.
Frustration
[90] It is well settled that a condition of consent cannot negate the consent:53 see for
example Taranaki Regional Council v Willan;54 Lyttelton Port Company Limited v The
Canterbury Regional Council;55 Westfield (New Zealand) Limited and ors v Hamilton
City Council;56 and The Director-General of Conservation v Marlborough District
Council.57
[91] Forest and Bird asked the High Court to recall its judgment and direct
reconsideration of the grant of consent:58
“... due to the difficulties inherent in a condition requiring that Ruataniwha Water Storage Scheme irrigation be undertaken so as to ensure that it does not cause the DIN limit to be exceeded or further exceeded. In an already over-allocated water body, such a condition is likely to be unlawful on the basis that it would frustrate the grant of consent. It appears that the Court may have overlooked the option of the Board reconsidering and declining the Ruataniwha Water Storage Scheme consents.” (emphasis added)
The Court confirmed that it had not overlooked the option of the Board reconsidering
and declining the consents, and that it had deliberately confined its direction to the
conditions.
[92] Whether or not the RWSS consent would be frustrated revolves around the
following amendments to Condition 5 and Table 5 of Schedule Three proposed by
Forest and Bird and others (which are shown in red below):59
53 When that situation arises the consent is said to be frustrated. 54 Environment Court decision W150/96 dated 23 October 1996 at page 5. 55 Environment Court decision 8/2001 dated 26 January 2001 at [11]. 56 CIV 2003 485 000953, CIV 2003 485 000954, and CIV 2003 485 000956, 17 March 2004 at [53]-[55] (High
Court). 57 CIV 2003-485-2228, 3 May 2004 at [22] and [23] (High Court). 58 Memorandum of Counsel for the Royal Forest and Bird Protection Society of New Zealand Inc seeking recall of
judgment, dated 18 December 2014 at paragraph 2. 59 Annexure A to memorandum of counsel for Forest and Bird, dated 16 February 2015, footnotes removed.
35
“5. In each sub-catchment, tThe activities authorised by the ‘use’ component of Resource Consents WP120373T and WP120375T, and by Resource Consent LU120382L shall be undertaken so as to ensure that those activities do not cause or contribute to exceedance of the following in-river nitrate-nitrogen and dissolved inorganic nitrogen concentration limits as defined in Table 5 below to be exceeded or further exceeded at any of the monitoring locations defined in Condition 6 the nearest downstream HBRC monitoring site defined in Condition 6.
Table 5
Tukituki Water Management Zone (as defined in Proposed Regional Plan Change 6)
Median (mg NO3-N/L)
95th Percentile (mg NO3-N/L)
Dissolved Inorganic
Nitrogen (mg N/L)
Zones 1 and 5 2.4 3.5 0.8 Zones 2 and 3 3.8 5.6 0.8
If the proposed amendments are adopted the RWSS will have to immediately comply
with the 0.8mg/l DIN limit at the monitoring sites.
[93] According to HBRIC Ltd: reinstating an obligation to comply with the DIN limit
would render the consents incapable of performance and thereby frustrate them; this
reflects that wide areas of the catchment in respect of which consent has been granted
are over-allocated in relation to DIN; in some cases the scale of reduction required is
large, e.g. on the Mangaonuku River; and there is nothing that the RWSS consent holder
could do to immediately overcome the current situation which has arisen at some
unknown point in the past. HBRIC Ltd contrasts that situation with nitrate-nitrogen.
While there are some localised hotspots, the nitrate-nitrogen limits are not currently
exceeded at any monitoring point. Moreover, HBRIC Ltd has the means to manage and
control its farming operations around those existing hotspots to ensure compliance at
the monitoring points.
[94] Fish and Game and EDS support the proposed amendments by Forest and Bird
and deny that they would result in the consents being frustrated. To support the
proposition that there would be no frustration, Fish and Game provided a map showing
36
the allocation status of the catchment with the RWSS consent area overlaid (Appendix 2
to this decision), together with the explanation:60
“The evidence and information regarding the allocation status of the catchment remains the same as what was put before the Board. All that Fish and Game has done is taken that evidence and information and shown it spatially on maps on a sub-catchment basis...”
It is the Board’s understanding that the purpose of the map is to illustrate that not all of
the RWSS consent area is over-allocated in terms of DIN.
[95] Having considered these competing arguments the Board has concluded that the
proposed amendments to Condition 5 and Table 5 would frustrate the land use consents
and water permits. The land use consents cover the properties within the RWSS zones
A-D and M that are to receive water from the scheme. This is, of course, a fundamental
component of the scheme. HBRIC Ltd is entitled to fully utilise its consents. From the
evidence before the Board, which is confirmed by the Tables in the Agreed Statement of
the Water Quality Experts,61 it is clear that large sections of the consent area are
currently over-allocated in terms of DIN. This is reinforced by the Fish and Game map
(Appendix 2). If the land use consents cannot be fully utilised the RWSS as a whole
would almost certainly be incapable of performance.
[96] The Board does not accept an alternative argument from Fish and Game that the
frustration argument is contrary to the Board’s findings that the 0.8mg/l DIN limit
would enable more intensive land use by high performance farmers.62 Those findings
were made against the background that the deeming provision formed part of PC6.
When arriving at the limit of 0.8mg/l the Board was aware that measured limits might
be the result of activities 10 or even 100 years ago, hence the need to progressively
retrieve the situation by working towards that limit. This was to be accomplished by
addressing leaching ‘at source’ using LUC leaching rates.
60 Proposed amendments to Ruataniwha Water Storage Scheme Conditions – memorandum of counsel for the
Hawke’s Bay and Eastern Fish and Game Councils, dated 16 February 2015 at paragraph 19. 61 Agreed Joint Statement to the Board of Inquiry from the Water Quality Experts, dated 10 February 2015. 62 Paragraphs [401] and [440] of the Board’s final report and decisions.
37
[97] Although the Board has not adopted the amendments to Condition 5 and Table 5,
it has nevertheless made amendments to the RWSS resource consent conditions by
inserting new Conditions 11(c), 12A and 30(c) which will be discussed shortly.
The Augier Proposal
[98] In response to the amendments proposed by some submitters, HBRIC Ltd
offered some additional conditions on an Augier basis. The proposed conditions involve
a monitoring and adaptive management tool for the Integrated Management and
Offsetting Approach (IMOA) in the conditions with specific reference to Project D.63
[99] The Augier principle derives from a United Kingdom decision Augier v
Secretary of State for the Environment.64 In broad terms an applicant for planning
permission who gives an undertaking to a planning authority which is relied on when
consent is granted, is estopped (prevented) from later asserting that there was no power
to grant the consent subject to the condition as proposed.
[100] Within a New Zealand context the Augier principle has been applied in Mora v
Te Kohanga Reo Trust.65 In that case Judge Willy held that a statement by parties to a
consent order in the Environment Court gave rise to an estoppel by representation. The
parties making the statement were estopped from going back on their undertaking by
subdividing a site when they had stated that only a single family dwelling would be
constructed.
[101] That decision was considered by the High Court in Springs Promotions Limited
v Springs Stadium Residents Association Incorporated.66 Randerson J noted that in
Mora the principle had been relied on to settle an appeal involving a consent order. He
considered that Mora should not be taken for any more general proposition beyond its
specific factual setting.
63 Project D is the Ruataniwha Plains Spring-fed Stream Enhancement and Priority Sub-Catchment Phosphorus
Mitigation and Central/Southern Hawke’s Bay Wide Native Fish Passage Project. 64 Augier v Secretary of State for the Environment [1978] 38 P & CR 219 (Queen’s Bench Division). 65 Mora v Te Kohanga Reo Trust [1996] NZRMA 556. 66 Springs Promotions Limited v Springs Stadium Residents Association Incorporated, CIV-2005-485-85, 7 October
2005 at [76] and [77].
38
[102] Subsequently the High Court conducted a detailed analysis of the principle in
Frasers Papamoa Ltd v Tauranga City Council.67 Having expressed the view that great
care is required in the application of the principle lest it be extended beyond its proper
role, Allan J said:
“[33] The Court is told that the principle is widely relied upon in determining resource consent appeals which are able to be settled by agreement; it assists in enabling applicants to offer attributes or mitigation beyond the jurisdiction of the Court in order to settle appeals; and it provides security for other parties in that undertakings and representations subsequently embodied in Court orders can thereafter be enforced by resort to standard enforcement mechanisms. But all of that occurs in the context of formal agreements and undertakings. None of the cases to which I have referred involved a representation or undertaking determined simply by inference or an assessment of the evidence as a whole.
[34] I accept Ms Barry-Piceno’s submission that in order to activate the rule in Augier four separate elements must be established:
(a) a clear and unequivocal undertaking to the Court and/or the other parties;
(b) receipt of the grant of resource consents in reliance on that undertaking;
(c) the imposition of a condition on those resource consents which broadly encompassed the undertaking; and
(d) detriment to the Court or other parties if the undertaking is not complied with.”
Allan J concluded that the undertaking under consideration did not fall within the
Augier principle.
[103] Forest and Bird, Fish and Game, and EDS oppose the HBRIC Ltd proposal.
They say that the IMOA conditions were not appealed and the proposed conditions are
beyond scope of the High Court referral; the principle has never been used in a situation
like this; and if HBRIC Ltd wishes to add conditions to enhance Project D of the IMOA,
it can do so by applying to vary the consent conditions.
[104] Unlike a consent order in the Environment Court, inclusion of the proposed
Augier conditions in the RWSS is strongly opposed. Consequently use of the principle
here would be novel, to say the least. Apart from that it is difficult to see how the
67 Frasers Papamoa Ltd v Tauranga City Council (2009) 15 ELRNZ 279 at [22]-[34].
39
proposed conditions are within the scope of the matters referred back to the Board. It is
noted that in the passages quoted from Frasers Papamoa Ltd68 it is contemplated that
the matters comprised in an Augier offer will be ‘beyond the jurisdiction of the Court’, a
point also noted in Kirton v Napier City Council.69 The conditions offered by HBRIC
Ltd are not in this category because they could have been imposed by the Board.
Finally, in terms of the four elements stated by Allan J,70 this is not a situation where the
grant of consent would be in reliance on the undertaking. As the High Court has made
clear, the granting of the consent is not a matter for reconsideration by the Board.
[105] While the Board accepts that the conditions proffered by HBRIC Ltd would be
beneficial, it does not have the power to impose them in the absence of agreement by
other parties.
New Condition 5A proposed by Fish and Game
[106] No doubt with the frustration argument in mind Fish and Game proposed the
following condition:71
“5A. In each sub-catchment where the in-river nitrate-nitrogen or dissolved inorganic nitrogen concentration limits as defined in table 5 below are exceeded at any of the monitoring locations defined in condition 6, the ‘use’ component of Resource Consents WP120373T and WP120375T, and by Resource Consent LU120382L shall be undertaken in such a way as to ensure that the contribution of nitrogen leaching from the consented activities is reduced to a level consistent with achieving the limits in table 5 by 2030.”
Although there is also an accompanying advisory note which explains the intention
underlying Condition 5A, for present purposes it is unnecessary to quote that advisory
note.
[107] While Forest and Bird and EDS do not oppose the underlying purpose of this
condition as a matter of principle, they consider that as now worded it is uncertain.
68 Frasers Papamoa Ltd v Tauranga City Council (2009) 15 ELRNZ 279 at paragraph [33]. 69 Kirton v Napier City Council [2013] NZEnvC 66 at [57]. 70 Frasers Papamoa Ltd v Tauranga City Council (2009) 15 ELRNZ 279 at paragraph [34]. 71 Memorandum of counsel for Fish and Game, dated 16 February 2015, Appendix 2.
40
[108] HBRC considers that the proposed condition is unnecessary because it would not
achieve any aim that is not already effectively required of the consent holder under
Conditions 7 and 8 of Schedule Three. The Regional Council also argued that the
proposed condition lacks clarity, would be difficult to enforce, and if a condition along
these lines was to be included it would need to be reworded.
[109] HBRIC Ltd considers that the condition bears no resemblance or consequential
relationship to any of the suggested amendments to Rule TT1(j) and is thereby out of
scope. It also contends that as currently drafted the rule is uncertain and unclear, and
that it is also invalid to the extent that it relies on the cooperation of third parties.
[110] The Board agrees that there are problems with Condition 5A proposed by Fish
and Game. Nevertheless, that proposed condition identified the need for amendments to
the conditions, and this has led to the Board inserting new Conditions 11(c), 12A and
30(c). Having declined to adopt Condition 5A, the Board has not adopted the
amendments proposed by Fish and Game and Forest and Bird to Conditions 7-9.
Amendments made by the Board to the RWSS consent conditions
[111] As a result of the High Court decision the Board has reviewed the relevant
RWSS conditions in Schedule Three. Having applied the relevant provisions of section
104 of the RMA (including having regard to the NPSFM 2014, PC5 and PC6), the
Board has decided that it is appropriate to amend the conditions in Schedule Three by
adding Conditions 11(c), 12A and 30(c).
[112] Condition 11(c) now provides for the consent holder to report on the monitoring
of the effects of nitrogen leaching required by Condition 6. Condition 12A provides for
the land use to be managed in a manner consistent with achieving a DIN concentration
of 0.8mg/l by 31 December 2030. The amendment to the review provision in Condition
30(c) enables HBRC, as the regulatory authority, to review the LUC leaching rates if it
considers that necessary.
[113] The new conditions are shown in red below:
“11. Each year in the month of June, the consent holder shall submit to the HBRC Group Manager, Resource Management, a Scheme Operation Water Quality Monitoring Annual Report that:
41
a) Summarises the monitoring undertaken under Condition 6 of this Schedule for the previous 12 months, including results, and details of the sampling and laboratory methods used, including detection limits;
b) Comments on the E. coli data in comparison to the limits and targets set out in Table 5.9.1A of Proposed Plan Change 6 and the likely causes of any elevated levels relative to those standards; and
c) Comments on Dissolved Inorganic Nitrogen (DIN) data in comparison to the limits and targets set out in Table 5.9.1B of Proposed Plan Change 6 and the likely contribution of the use component of the RWSS consents to any elevated levels of DIN; and
d) Reports on trends in the monitoring results from each monitoring site specified in Table 6, over the previous 12 months and from the commencement of monitoring. The report shall also comment on possible causes of any trends detected, and any potential adverse environmental effects that may result if the trends continue.”
…
12A. In the event that the assessment undertaken pursuant to Condition 11(c) above identifies that the activities authorised by the ‘use’ component of Resource Consents WP120373T and/or WP120375T, and/or by Resource Consent LU120382L are a material contributor to any exceedence of a DIN of 0.8 mg/L at any of the HBRC monitoring sites identified in condition 6, the consent holder shall identify specific actions required to be taken by land owners supplied by the Scheme upstream from the monitoring site(s) where the exceedences have been measured in order to ensure that the land ‘use’ component of Resource Consents WP120373T and or WP120375T is managed in a manner consistent with achieving a DIN concentration of 0.8mg/l by 31 December 2030.
…
Review
30. The Consent Authority may, during the March to June period within every year that these consents are current, serve notice on the consent holder under section 128(1) of the Resource Management Act 1991, of its intention to review the conditions of one of more of the consents for the following purposes:
a) To review the effectiveness of the conditions of the consents in avoiding, remedying or mitigating any adverse effects on the environment from the exercise of the consents and if necessary to avoid, remedy or mitigate such effects by way of further or amended conditions;
b) To ensure that the conditions are consistent with any policies or rules in a regional plan or National Environmental Standard or Regulation that becomes legally effective after grant of consent and in particular to align the conditions with any increased regulatory approach for phosphorus management notified in any review of Policy TT5(1)
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promulgated after the 2020 and 2025 reviews of this policy required by Policy TT5(2) (c) of the Hawke’s Bay Regional Resource Management Plan; or
c) To review the LUC leaching rates in Table 4A in order to meet the DIN concentration of 0.8mg/l by 31 December 2030.
d) To review the adequacy of and the necessity for monitoring undertaken by the consent holder.
…”
Dated this 28th day of April 2015
Hon. Lester Chisholm
Chairperson
Environment Commissioner
Russell Howie
Deputy Chairperson
Matthew Lawson
Member
Loretta Lovell
Member
Alec Neill
Member
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Appendix 1
Rule TT1(j), Policy TT4(1)(g) and the definition of low intensity farming systems as determined by the Board
The changes by the Board have been tracked into the Rule, Policy and definition below.
Text to be deleted is shown in red and has been strike through. New text has been shown
in red and underlined.
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6.9 Tukituki River Catchment Rules 6.9.1 Land Use and Water Quality
Rule Activity Classification Conditions/Standards/Terms/Matters of Control and Discretion /Notification
TT1* Production land use Refer to POLs TT1 to TT5
The use of production land on farm properties or farming enterprises in the Tukituki River catchment pursuant to s9(2) RMA.
Permitted Conditions/Standards/Terms a. For farm properties or farming enterprises exceeding 4 hectares in area:
(i) the records specified in Schedule XXI shall be retained for each year (1 June to 31 May) from 1 June 2013 onwards to enable a Nutrient Budget to be prepared, or
(ii) copies of Nutrient Budget input and output files that have been prepared in accordance with an industry programme approved by Hawke’s Bay Regional Council shall be kept; and
those records or files shall be provided to the Hawke’s Bay Regional Council upon request.72
b. For farm properties exceeding 4 hectares in area a Farm Environmental Management Plan shall be prepared in accordance with Schedule XXII by 31 May 2018 and thereafter implemented by 31 May 2020. The Farm Environmental Management Plan shall be updated at 3 yearly intervals from 1 June 2018 and include; (i) a Nutrient Budget73, incorporating the measurement or modelling of whole of property nutrient
losses (kg/ha/year) calculated using the annual records specified in Schedule XXI and the Overseer Nutrient Budget model (or an alternative model approved by Hawke’s Bay Regional Council); and
(ii) a Phosphorus Management Plan including details specified in Schedule XXII; and (iii) All other information relevant to the farm property required for Farm Environmental Management
72 If this condition is not complied with, Nutrient Budget inputs will be determined in accordance with the methodology specified in Schedule XXI. 73 A Nutrient Budget is defined in the Glossary. * Rule TT1(c), TT1(f) and TT1(j) were amended under section 149RA of the Resource Management Act (1991) on 29 August 2014 following the Board of Inquiry issuing Board Minute No. 32.
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Rule Activity Classification Conditions/Standards/Terms/Matters of Control and Discretion /Notification
Plans by Schedule XXII. c. The records kept in accordance with condition (a) (i) and (a) (ii) shall be reviewed annually in accordance
with an industry programme approved by Hawke's Bay Regional Council (or in the absence of an industry programme, as directed by Hawke's Bay Regional Council) to assess whether any farm system changes are evident. If such a change is evident, the Nutrient Budget for the farm system and from 31 May 2018 the Farm Environmental Management Plan must be updated to determine whether the nitrogen leached from the land exceeds the Tukituki LUC Natural Capital; Nitrogen Leaching Rates in Table 5.9.1D on a whole of farm property or whole of farming enterprise basis. All reviews and amended Nutrient Budgets must be made available to the Hawke's Bay Regional Council upon request.
d. For farm properties or farming enterprises exceeding 4 hectares in area, after 1 June 2020 the nitrogen leached from the land (measured or modelled as a loss from the root zone using Overseer or an alternative model approved by Hawke’s Bay Regional Council) shall not exceed Tukituki LUC Natural Capital; Nitrogen Leaching Rates in Table 5.9.1D on a whole of farm property or whole of farming enterprise basis, estimated using a 4 year rolling average;
e. For single paddocks on land delineated in Schedule XX74 as having a slope of 15 degrees or less all livestock (other than sheep) shall be excluded from the beds and margins of any lake, wetland and flowing river (whether intermittent or permanent) by 31 May 2020;
f. For single paddocks on production land delineated in Schedule XX74 as having a slope of greater than 15 degrees and where the stocking rate of livestock excluding sheep exceeds 18 stock units per hectare either: (i) all livestock (other than sheep) shall be excluded from the beds and margins of any lake, wetland
and any flowing river (whether intermittent or permanent) by 31 May 2020; or (ii) Outside of the Papanui, Porangahau, Maharakeke, Tukipo, Kahahakuri and upper Tukituki corridor
74 Schedule XX is based on slope classifications contained within the NZLRI and is at a coarse catchment scale. To determine compliance with Rule TT1 at a paddock scale, upon
request HBRC will use the highest resolution Digital Elevation Model or LIDAR image available to determine the proportion of slope by using standard triangulation methods.
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Rule Activity Classification Conditions/Standards/Terms/Matters of Control and Discretion /Notification
catchments (as shown in Schedule XIV), for individual farm properties or farming enterprises exceeding 4 hectares in size, by 31 May 2020 a Phosphorus Management Plan shall be prepared as part of a Farm Environmental Management Plan and it shall include stock exclusion requirements where stock exclusion is reasonably practicable and alternative phosphorus loss mitigation measures where stock exclusion is not reasonably practical.
(iii) Within the Papanui, Porangahau, Maharakeke, Tukipo, Kahahakuri and upper Tukituki corridor catchments (as shown in Schedule XIV) Rule TT1(f)(i) must be complied with.
g. Notwithstanding conditions (e) and (f), grazing of a permanently fenced riparian margin may occur for weed control purposes provided that: (i) The total period of grazing in any year does not exceed 7 days; (ii) The fenced riparian margin shall be grazed no more than twice in any year during the period 1
November to 30 April. h. Notwithstanding conditions (e) and (f), stock may continue to utilise managed stream crossing points
(where stock are usually excluded from the surface water body but are actively herded across the surface water body by the farmer).
i. Permanent and intermittent rivers that are crossed by formed stock races shall be bridged or culverted by 31 May 2020.
j. After 31 May 2020, Ffor farm properties or farming enterprises exceeding 4 hectares in area excluding: (i) low intensity farming systems; and (ii) those that solely comprise plantation forestry (being forestry operations deliberately established for
commercial purposes), after 31 May 2020 nitrogen leached from the land shall be demonstrated75 to be not causing or contributing to any measured exceedence of the Table 5.9.1B limits for the 95th percentile concentration of nitrate-nitrogen or the limit for dissolved inorganic nitrogen in any at the downstream HBRC monitoring site nearest to the farm property or farming enterprise in the relevant mainstem or tributary of a river or to
75 “Demonstrated” means as a result of monitoring and/or modelling undertaken by the Hawke’s Bay Regional Council. Individual land owners seeking Certificates of Compliance
under Rule TT1 will not be required to undertake any modelling or water quality monitoring themselves.
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Rule Activity Classification Conditions/Standards/Terms/Matters of Control and Discretion /Notification
any measured exceedence of the Table 5.9.2 groundwater quality limits for nitrate-nitrogen provided that a farm property or farming enterprise shall be deemed to be not contributing to an exceedence of the DIN limit in Table 5.9.1B if it complies with Rule TT1(d).76
k. For farm properties or farming enterprises exceeding 4 hectares in area, contaminants leached from the land shall not be demonstrated75 to be causing or contributing to any breach of the Resource Management (National Environmental Standards for Human Drinking Water) Regulations 2007 or the guideline values or maximum acceptable values for determinands in the Drinking Water Standards of New Zealand (2005 Revised edition 2008) or subsequent version for any registered drinking water supply takes. (Note: Hawke’s Bay Regional Council is satisfied that this permitted activity rule will not cause or contribute to any such breach for any registered drinking water supply but condition k. is included here for completeness.)
l. Notwithstanding conditions (a) to (d) and (j) to (k) above, where a farm property or farming enterprise meets the Glossary definition of a low intensity farming system the requirements of conditions (a) and (b) above, shall only apply where the farm property or farming enterprise exceeds 10 hectares in area.
76 By 31 May 2018 HBRC will develop a Procedural Guideline in collaboration with primary sector representatives setting out how POL TT4(1)(h) and conditions (j) and (k) of Rule
TT1 will be implemented. The Guideline will include, but not be limited to: the process for monitoring water quality trends and alerting affected farming properties if water quality limits are being approached; delineation of the ‘capture zone’ for the relevant water body (the area of groundwater or surface water contributing to the particular part of the water body in question); and, where Rule TT2 is triggered, an adaptive management process for reducing nitrogen leaching from affected farming properties based on the implementation of progressively more stringent on-farm management practices.
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POL TT4 IMPLEMENTING THE NITROGEN LIMITS AND TARGETS
1. To ensure that the Table 5.9.1B nitrate-nitrogen and dissolved inorganic nitrogen surface water
quality limits and the Table 5.9.1D Tukituki LUC Natural Capital Leaching Rates are not exceeded on a whole of farm property or whole of farming enterprise basis:
(a) From 1 June 2013 onwards farm properties or farming enterprises exceeding 4 hectares in area shall be required to either: (i) Keep the records specified in Schedule XXI so that Nutrient Budgets can be
calculated using Overseer77 (or an alternative model approved by Hawke’s Bay Regional Council78) prior to 31 May 2018; or
(ii) Keep copies of Nutrient Budget input and output files that have been prepared in accordance with an industry programme approved by Hawke’s Bay Regional Council;
Except that for low intensity farming systems the property size threshold shall be 10 hectares. This exception is to recognise that low intensity farming systems have low nitrogen losses. The farming systems included in this category may be further developed and included in the Regional Resource Management Plan via a plan change prior 31 May 2018.
(b) By 1 June 2018 farm properties or farming enterprises exceeding 4 hectares in area shall prepare and maintain a Farm Environmental Management Plan prepared in accordance with Schedule XXII. The Farm Environmental Management Plan (FEMP) should be in proportion to the complexity or intensity of the particular farming operation. The FEMP shall be updated at three yearly intervals from 1 June 2018. Except that for low intensity farming systems the property size threshold shall be 10 hectares. This exception is to recognise that low intensity farming systems have low nitrogen losses. The farming systems included in this category may be further developed and included in the Regional Resource Management Plan via a plan change prior 31 May 2018.
(c) Require industry good practices to be implemented on farm properties or farming enterprises in order to minimise nitrogen losses;
(d) Until 31 May 2018 the managers of farm properties and farming enterprises shall be required to measure or model nitrogen leaching rates to support the preparation of Nutrient Budgets79 to be included in a Farm Environmental Management Plan. The Nutrient Budgets must be updated thereafter at least 3 yearly. The initial Nutrient Budget must be provided to Hawke’s Bay Regional Council while the three yearly updates need only be provided to the Council upon written request.
(e) Require that the records kept in accordance with POL TT4(1)(a), (b) and (d) are to be reviewed annually in accordance with an industry programme approved by Hawke's
77 Overseer is a Nutrient Budget model that calculates and estimates the nutrient flows in a productive
farming system. It is owned and administered by the Ministry of Primary Industry, Fertiliser Association of New Zealand and AgResearch. The Overseer model is available at http://www.overseer.org.nz/Home.aspx. The application of Overseer or an alternative model is set out in the procedural guideline to be developed by HBRC.
78 To be approved by Hawke’s Bay Regional Council any alternative nitrogen loss model would need to be fit for purpose for the production land use, have a demonstrable repeatability of results, be field tested, and be validated to accepted scientific standards.
79 A Nutrient Budget is defined in the Glossary.
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Bay Regional Council (or in the absence of an industry programme, as directed by Hawke's Bay Regional Council) to assess whether any farm system changes are evident in the previous 12 months. If such a change is evident, the Nutrient Budget for the farm system must be updated to determine whether the nitrogen leached from the land exceeds the relevant limit in Table 5.9.1D on a whole of farm property or whole of farming enterprise basis and the updated Nutrient Budget must be provided to the Hawkes Bay Regional Council.
(f) Allow until 31 May 2020 farm properties or farming enterprises to implement any necessary changes to their farming systems to achieve the Table 5.9.1D Tukituki LUC Natural Capital Nitrogen Leaching Rates on a whole of farm property or whole of farming enterprise basis.
(g) Require the use of production land80 on properties greater than 4 hectares in area in those Tukituki River sub-catchments where there are exceedences of Table 5.9.1B (surface water) or Table 5.9.2 (groundwater) nitrate-nitrogen limits and targets81 to be subject to a land use consent under Rule TT2 if the targets are still exceeded or become exceeded after 1 June 2020 unless the farm property or farming enterprise is a low intensity farming system or solely comprises plantation forestry;
(h) By 31 May 2018 HBRC will develop a Procedural Guideline in collaboration with primary sector representatives to aid in the implementation of POL TT4. The Guideline will include, but not be limited to: the methodology for estimating a Nutrient Budget using Overseer (or an alternative model approved by Hawke’s Bay Regional Council), the process for monitoring water quality trends and alerting affected farming properties if water quality limits are being approached; delineation of the ‘capture zone’ for the relevant water body (the area of groundwater or surface water contributing to the particular part of the water body in question); and, where Rule TT2 is triggered, an adaptive management process for reducing nitrogen leaching from affected farming properties based on the implementation of progressively more stringent on-farm management practices.
(i) After 1 June 2020 manage activities with leaching rates that exceed those specified in Table 5.9.1.D through a resource consent process under Rule TT2 where such exceedence is 30% or less or Rule TT2A where leaching rates in Table 5.9.1D are exceeded by more than 30%.
(j) For the purposes of achieving compliance with Table 5.9.1D, the estimated leaching rate shall be a 4 year rolling average of the estimated nitrogen leaching rates derived from Nutrients Budgets prepared after 1 June 2013.
2. To assist with monitoring the effectiveness of POL TT4(1) the Hawke’s Bay Regional Council will:
(a) Monitor instream water quality at existing State of the Environment monitoring sites to assess compliance with Table 5.9.1B dissolved inorganic nitrogen (DIN) and nitrate-nitrogen limits and targets; and
(b) Incorporate that information in its regular state of the environment reporting and report on it annually.
80 POL TT4(1)(g) does not apply to discharges of industrial and trade wastewater to land. Those activities
are managed under POLs 16 and 17 and Rules 49 and 52 of the RRMP. 81 At the time of Plan Change notification, based on two discrete sampling exercises, there were localised
exceedences in the Kahahakuri and Mangapohio tributaries.
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ADDITIONAL TERMS FOR THE GLOSSARY IN SECTION 9 OF THE REGIONAL RESOURCE MANAGEMENT PLAN
Low intensity farming system Means farm properties or farming enterprises that contain no more than 8 stock units per hectare including permanent horticultural and viticultural crops (such as orchards, vineyards) and lifestyle properties; but does not include a) Properties used for the production of rotational vegetatableion crops; b) Dairy farms; c) Grazed forage crops.
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Appendix 2
Tukituki River Catchment nitrogen allocation status and Ruataniwha proposed irrigation zones
MeehanA
Typewritten Text
MeehanA
Typewritten Text
52
