Before the Environment Court
At Wellington
I Mua I te Kōti Taiao
Te Whanganui-a-Tara Rohe
ENV-2019-346-103
Under
Clause 14 of Schedule 1, Section 310, and Section 293 of
the Resource Management Act 1991
In the matter of
appeals on the Proposed Natural Resources Plan
And
In the matter of
an application for a declaration and consequential orders
Between
Various
Appellants
ENV-2019-000103, 105-133
And
Wellington Regional Council
Respondent
Memorandum of counsel supporting application for declaration and order
in relation to the definition of river 'mouth'
Date:
6 October 2021
Level 4, 20 Customhouse Quay, Wellington 6011
PO Box 2791, Wellington 6140
DX SP20002, Wellington
Tel +64 4 472 6289
Fax +64 4 472 7429
Solicitor on the record
Kerry Anderson
[email address]
Tel +64 4 474 3255
Contact solicitor
Emma Manohar
[email address]
Tel +64 4 918 3016
7087055.10
MAY IT PLEASE THE COURT
INTRODUCTION
1
The Wellington Regional Council applies for a
declaration under section 310(e) of the Resource
Management Act 1991 (
RMA) determining the location
of unmapped river 'mouths' in the Proposed Natural
Resources Plan for the Wellington Regional (
PNRP).
The declaration sought is:
When determining the location of a
river mouth in the Wellington Region,
not shown on Maps 42 to 48, the mouth
is deemed to be a straight line
representing the continuation of the
line of Mean High-Water Springs on
each side of the river at the river outlet.
2
As consequential relief to implement the declaration (if
granted by the Court), the Council applies for an order
under section 293 of the RMA to insert the following
text into the PNRP in Chapter 13 and placed
immediately above Map 42 (below the heading which
reads: 'Coastal marine area and river mouth
boundaries'):
Maps 42 to 48 show where the Coastal
Marine Area and river mouth
boundaries are located. For the
remaining rivers in the Wellington
Region not shown on Maps 42 to 48,
the mouth is deemed to be a straight
line representing the continuation of
the line of Mean High Water Springs
on each side of the river at the river
outlet.
The Coastal Marine Area means the
foreshore, seabed, and coastal water,
and the air space above the water—
(a) of which the seaward boundary is
the outer limits of the territorial
sea:
(b) of which the landward boundary
is the line of mean high water
springs, except that where that
7087055.101
line crosses a river, the landward
boundary at that point shall be
whichever is the lesser of—
(i) 1 kilometre upstream from
the mouth of the river; or
(ii) the point upstream that is
calculated by multiplying
the width of the river mouth
by 5.
3
The Council applied for directions as to service of this
application, with its submission being that it is served
on the Minister of Conservation, territorial authorities
within the Wellington Region with a coastline and those
parties who filed an appeal or section 274 notice on the
PNRP, but not the broader public. This application was
approved by the Court on 22 September 2021.
4
The reasons for the above applications are set out
below.
IDENTIFICATION OF RIVER MOUTH
Error in the Plan
5
The Operative Regional Coastal Plan for the
Wellington Region includes the following text after its
list of specified river mouths and coastal marine area
boundary locations:1
For the remaining rivers in the
Wellington Region, the mouth is
deemed to be a straight line
representing the continuation of the
line of Mean High Water Springs on
each side of the river at the river outlet.
1 Regional Coastal Plan, p221.
7087055.102
6
As set out in the affidavit of Dr Dawe for the
Wellington Regional Council (
Council), this text, or an
equivalent, has been omitted in error from the PNRP.
7
While the main river mouths boundaries have been
Affidavit of Dr
Dawe from
agreed to and are mapped in the PNRP (Maps 42-48),
[15]
many smaller river mouths and stream boundaries have
not been mapped and the landward extent of the coastal
marine area is not delineated. This is an error that the
Council seeks to address.
8
The main issue with the error relates to the ability to
identify the landward boundary of the coastal marine
area, in relation to the mouth of a river. This has
consequences for determining jurisdiction between the
Council and the territorial authorities, and also in
respect of the jurisdiction of the Regional Coastal Plan
and what provisions of the PNRP apply.
9
The relevant part of the definition of coastal marine
area is:
coastal marine area means the
RMA, section
foreshore, seabed, and coastal water,
and the air space above the water—
2.
…
(b) of which the landward boundary
is the line of mean high water
springs, except that where that
line crosses a river, the landward
boundary at that point shall be
whichever is the lesser of—
(i) 1 kilometre upstream from
the mouth of the river; or
(ii) the point upstream that is
calculated by multiplying
the width of the river mouth
by 5
7087055.103
10
'Mouth' for the purpose of this definition is also defined
in section 2 of the RMA:
mouth, for the purpose of defining the
landward boundary of the coastal
marine area, means the mouth of the
river either—
(a)
as agreed and set between the
Minister of Conservation, the
regional
council,
and
the
appropriate territorial authority
in
the
period
between
consultation on, and notification
of, the proposed regional coastal
plan; or
(b)
as declared by the Environment
Court under section 310 upon
application made by the Minister
of Conservation, the regional
council,
or
the
territorial
authority prior to the plan
becoming operative,—
and once so agreed and set or declared
shall not be changed in accordance
with Schedule 1 or otherwise varied,
altered, questioned, or reviewed in any
way until the next review of the
regional coastal plan, unless the
Minister of Conservation, the regional
council, and the appropriate territorial
authority agree.
11
Without identifying the river mouths in the PNRP and
in light of the period which allows for agreement
having expired (ie, the period between consultation on,
and notification of, the proposed regional coastal plan)
it is impossible to determine the landward boundary of
the coastal marine area (for the unidentified rivers)
where it crosses a river, unless a declaration is sought
from the Environment Court in respect of the same.
12
The consequences of this are uncertainty for both local
Affidavit of Dr
Dawe [25] to
authorities and plan users in terms of the extent of the
[29]
coastal marine area.
7087055.104
Process for remedy
13
In terms of the process for remedying this error, the
definition of 'mouth' in the RMA, as set out above,
provides guidance about how a river mouth should be
included in a plan.
14
Based on the definition, the location of a river 'mouth'
can be as agreed between the Minister of Conservation,
the Council, and the appropriate territorial authority
prior to notification of the PNRP, or via declaration by
the Environment Court under section 310 before the
PNRP becomes operative. As the PNRP has been
notified, and advanced to the point that the majority of
appeals on the PNRP have been resolved, with the error
only subsequently being discovered, the first option is
no longer available.
15
The remaining option is a declaration from the
Environment Court under section 310 of the RMA.
16
As a consequence, the Council seeks a declaration from
the Environment Court regarding the location of the
river 'mouths', on a regional basis, as opposed to it
being sought on a river-by-river basis as and when
issues arise.
17
This declaration power is expressly provided for under
section 310(e) of the RMA, which states:
A declaration may declare—
…
(e) the point at which the landward
boundary of the coastal marine
area crosses any river; or
7087055.105
18
Previous caselaw confirms that this approach, seeking a
Re Auckland
Regional
declaration from the Court, is appropriate. In
Re
Council Environment
Auckland Regional Council the Court has stated:
Court,
Auckland
3/4/1997
A046/97 at
… the definition of the term “mouth”
page 2
shows an intention that where
agreement among the relevant public
authorities is not reached before
notification of the proposed regional
coastal plan, the only other way of
establishing the mouth is by
declaration by the Environment Court
prior to the plan becoming operative.
19
Given this, the Council seeks a declaration from the
Environment Court as to the location of river mouths in
the Wellington Region, not already mapped by Maps 42
to 48, as follows:
When determining the location of a
river mouth in the Wellington Region,
not shown on Maps 42 to 48, the mouth
is deemed to be a straight line
representing a continuation of the line
of Mean High Water Springs on each
side of the river at the river outlet.
CONSEQUENTIAL RELIEF
20
If the Council's application for declaration is successful, To be located
in Chapter 13
the Council also seeks that the PNRP be amended
and placed
through the insertion of the following text:
immediately
above Map 42
Maps 42 to 48 show where the Coastal
(below the
Marine Area and river mouth
heading which
boundaries are located. For the
reads: 'Coastal
remaining rivers in the Wellington
marine area and
Region not shown on Maps 42 to 48,
river mouth
the mouth is deemed to be a straight
line representing the continuation of
boundaries').
the line of Mean High Water Springs
on each side of the river at the river
Affidavit of Dr
outlet.
Dawe at [30]
The Coastal Marine Area means the
foreshore, seabed, and coastal water,
and the air space above the water—
(a) of which the seaward boundary is
the outer limits of the territorial
sea:
7087055.106
(b) of which the landward boundary
is the line of mean high water
springs, except that where that
line crosses a river, the landward
boundary at that point shall be
whichever is the lesser of—
(i) 1 kilometre upstream from
the mouth of the river; or
(ii) the point upstream that is
calculated by multiplying
the width of the river mouth
by 5
21
The Court's powers under section 310 of the RMA are
declaratory in nature. They give the Court to power to
determine what the appropriate location of the 'mouth'
is, but it is submitted it is unclear whether the Council
can simply amend its PNRP in response to such a
declaration.
22
Accordingly, the Council applies for an order under
section 293 of the RMA, to make the amendment
sought above to the PNRP, to give effect to the
declaration, if granted.
23
Section 293 of the RMA provides:
293 Environment Court may order
change
to
proposed
policy
statements and plans
(1) After hearing an appeal against,
or an inquiry into, the provisions
of any proposed policy statement
or plan that is before the
Environment Court, the court
may direct the local authority
to—
(a) prepare changes to the
proposed policy statement
or plan to address any
matters identified by the
court:
(b) consult the parties and other
persons that the court
directs about the changes:
(c) submit the changes to the
court for confirmation.
(2) The court—
7087055.107
(a) must state its reasons for
giving a direction under
subsection (1); and
(b) may give directions under
subsection (1) relating to a
matter that it directs to be
addressed.
…
24
Determining whether or not the Court will exercise its
Friends of
Nelson Haven
section 293 powers requires consideration at two levels:
and Tasman
Bay (Inc) v
Tasman
24.1
First, does the Court have jurisdiction to
District
exercise the powers in question; and
Council EC
Wellington
W013/08, 13
24.2
Second, if the Court does have jurisdiction,
March 2008
should it exercise its discretion to do so on
(Nelson Haven)
the merits.
at [22].
Jurisdiction
25
In
Federated Farmers New Zealand (Inc) Mackenzie
Federated
Farmers New
Branch v Mackenzie District Council (which related to
Zealand (Inc)
Mackenzie
the protection of the Mackenzie Basin as an outstanding
Branch v
Mackenzie
natural landscape), the High Court held that the
District
Council [2014]
'orthodox' jurisdictional test is:
NZHC 2616 at
[156].
…that the matter sought to be
addressed must be 'on' the plan change,
within the scope of submissions to the
council, and be within the scope of the
appeals to the Environment Court and
the relief there sought. However, this
orthodox position is not without
exception.
26
It is submitted that this matter is 'on' the plan change,
Affidavit of Dr
Dawe at [34]
given the plan review is on the entire plan. It is,
however, acknowledged that it is not within
submissions or any appeal, as if it was, the Council
would be seeking the amendment in response to that
specific appeal.
7087055.108
27
However, in the above decision the Court held that
At [148]
there may be some exceptions to this general approach
in certain circumstances, including (but not limited to)
an inadequate section 32 report, matters under section
74 (which relate to matters to be considered by a
territorial authority in preparing a district plan, and
presumably also extends to the corresponding section
66 for a regional council), or a matter under 293(3)
(which relates to deviation from higher order
documents).
28
It is submitted that this is a situation where the
exception to the general jurisdictional requirements
should apply. Allowing the above error to be corrected
(to identify the boundaries of the coastal marine area)
will ensure that the Council fulfils its functions under
section 30(1)(d) of the RMA in relation to control of the
coastal marine area, as referenced in section 66(1)(a).
It will also assist in ensuring that the requirements of
the NZCPS are met, as it will clarify the extent of the
coastal marine area.
29
Given this, it is submitted that this is a situation where
it is appropriate for the Court to exercise its powers
under section 293 of the RMA to correct the defect in
the PNRP.
Exercise of discretion
30
It is submitted that the Court should exercise its
discretion in this matter. It will resolve an error that has
arisen in the plan review process and will allow for
greater plan certainty for users and all local authorities
(territorial and regional).
7087055.109
31
Dr Dawe provides a section 32 analysis for this
Affidavit of Dr
Dawe, from
amendment and concludes that the above would be an
[38]
appropriate outcome.
Other options
32
For completeness, the Council has considered what
other options may be available to implement the Court's
declaration (if one is made).
33
Section 292 of the RMA provides:
(1) The Environment Court may, in
any proceedings before it, direct
a local authority to amend a
regional plan or district plan to
which the proceedings relate for
the purpose of—
(a) remedying any mistake,
defect, or uncertainty; or
(b) giving full effect to the
plan.
(2) The local authority to whom a
direction
is
made
under
subsection (1) shall comply with
the direction without using the
process in Schedule 1.
34
It is submitted that this section is more 'on point' for
implementing the declaration sought by the Council, as
it relates to remedying a mistake in a Plan.
35
However, section 292 relates to a 'regional plan', which
is defined in the RMA as an operative plan:
regional plan—
Section 43AA
(a) means
an
operative
plan
of the RMA
approved by a regional council
under Schedule 1 (including all
operative changes to the plan
(whether arising from a review or
otherwise)); and
(b) includes a regional coastal plan.
7087055.1010
36
The definition refers to 'operative plan' - whether made
Section 43AA
of the RMA
operative under clause 20 of Schedule 1 or under
section 86F (when appeals have been resolved). The
PNRP is not yet operative and will not become
operative until the resolution of the outstanding appeals
on water quality, and the grant of consent orders on the
other topics. Given this, the Council considers that
section 292 of the RMA is not yet available to the
Court.
CONCLUSION
37
The Council applies for a declaration as to the location
of river mouths in the Wellington Region, with
consequential relief of an order under section 293 to
amend the PNRP.
Date: 6 October 2021
. . . . . . . . . . . . . . . . . . . . . . . . . .
K Anderson/K Rogers
Counsel for Wellington Regional
Council
7087055.1011
