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 directions as to service
Date: 17 September 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
7278691.4
MAY IT PLEASE THE COURT
INTRODUCTION
1
The Wellington Regional Council intends to apply 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 to be 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 also intends to apply
for an order under section 293 of the RMA to amend
the PNRP to include a provision setting out how the
location of unmapped river mouths are determined in
Chapter 13 of the PNRP, placed immediately above
Map 42 (below the heading which reads: ‘Coastal
marine area and river mouth boundaries’). The
provision is as follows:
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—
1
(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 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 has also applied for directions as to service
of these applications. It is submitted that the
requirements of the RMA will be satisfied if it is served
on the Minister of Conservation, territorial authorities
within the Wellington Region and those parties who
filed an appeal or section 274 notice on the PNRP, but
not the broader public.
SERVICE
Requirements
4
For a declaration, under section 312(1) of the RMA, the
Council must serve notice of the declaration on every
person 'directly affected' by the application.
5
The Environment Court in
Canterbury Regional
EnvC C081/04.
See also High
Council v Department of Conservation held that the
Court in
BP Oil
Ltd v Taupo
term 'affected' meant an 'appreciable effect more than
District
Council HC
minimal, one that differentiates the person from a
Hamilton
M300/85, 31
generality in order to define the direct effect'. Whether
January 1989
a party is directly affected is a matter requiring
examination in every case.
2
6
For a section 293 application, the Court can direct
Section
293(1)(b) of the
consultation with the 'parties and other persons that the
RMA
Court directs'.
Consultation
7
As set out in the affidavit of Dr Dawe, some
Affidavit of Dr
Dawe at [35] &
consultation has already taken place. The Minister of
[36]
Conservation and Territorial Authorities within the
Wellington Region have been contacted by the Council,
to provide an update on the issue and the proposed
amendment to the PNRP to address the issue. Those
parties have confirmed agreement that an error has
occurred in terms of the definition of river mouth in the
PNRP and agreed with the Council's proposed
amendment to the PNRP to address the error.
However, there is still the issue of service of this
application for declaration and consequential order
under section 293 to provide for the amendment.
8
A Memorandum of Counsel on behalf of the
Wellington Regional Council updating the Court on this
matter (23 April 2021) identified the error and the
Council's intention to seek that the Court utilise section
293 of the RMA to correct the PNRP through the
inclusion of the paragraph set out at paragraph 2 above.
That memorandum gave the Court and all parties to the
PNRP appeals process notice of the Council's
intentions. No responses or correspondence was
received in relation to this issue.
Parties that are directly affected
9
The Council submits that the people that should be
served with this application are:
3
9.1
The Minister of Conservation.
9.2
All Territorial Authorities in the Wellington
Region with a coastline, being Hutt City
Council, Porirua City Council, Wellington
City Council, Carterton District Council,
Kapiti Coast District Council, Masterton
District Council, South Wairarapa District
Council, and part of Tararua District Council.
The only Territorial Authorities not included
is the Upper Hutt City Council, as its district
does not include a coastline.
9.3
All appellants and section 274 parties on the
PNRP.
10
It is submitted that this group will capture the
authorities who may be impacted by the change of
geographical jurisdiction.
11
It also provides notification to those parties who are
involved in the proceedings which provide a basis for
this application.
12
In terms of any other party which may be 'affected',
Affidavit of Dr
Dawe at [25] -
Council has considered what the impact might be on a
[29]
person who might be contemplating an activity which
this may impact on. The affidavit of Dr Dawe also
considers which parties are affected by the error.
13
It is submitted that the only change will be for an
activity which is occurring in a river, or the bed of a
river near the river mouth, where that river mouth is not
mapped by the PNRP. Under the PNRP, there is no
way of determining where the landward boundary of
mean high water springs is in those situations, and a
4
declaration would need to be sought to provide that
certainty.
14
However, as the Operative Regional Coastal Plan is still
in effect, it provides useful guidance as to where this is,
and the sensible approach, and one that has been
adopted by Council, is that the river mouth is a straight
line representing the continuation of the line of mean
high water springs on each of the river.
15
This is the same approach as is now sought through
these applications. As such, general plan users will not
be adversely affected and therefore do not need to be
notified of this application. Regardless, given that the
appeals are live, the Council is suggesting that the
appellants and section 274 parties be notified as they
have shown to be invested in the PNRP more generally.
Directions sought
16
Accordingly, directions are sought from the Court that
this matter should be served on the Minister of
Conservation, the Territorial Authorities in the
Wellington Region, and all appellants and section 274
parties on the PNRP.
Date:
17 September 2021
. . . . . . . . . . . . . . . . . . . . . . . . . .
K Anderson/K Rogers
Solicitor for Wellington Regional
Council
5
