Before the Environment Court
At Wellington
I Mua I te Kōti Taiao
Te Whanganui-a-Tara Rohe
ENV-2019-346-103
Under
Clause 14, Schedule 1 of the Resource Management Act
1991
In the matter of
appeals on the Proposed Natural Resources Plan
Between
Various
Appellants
ENV-2019-000103, 105-133
And
Wellington Regional Council
Respondent
Memorandum of counsel on behalf of Wellington Regional Council:
Updating Court as to consent order process
Date: 23 April 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
6992236.3
MAY IT PLEASE THE COURT:
Introduction
1
The purpose of this memorandum is to provide the Court with an update
on the consent orders as directed by the Court in its Minute of 21 April
2021. In addition, this memorandum seeks directions on an issue with
the Proposed Plan's approach to defining river mouths in the region.
Consent orders
2
At paragraph [4] of its Minute of 21 April 2021, the Court directed the
following:
The Respondent is to file a memorandum, by 5pm, 23
April 2021, listing matters that are subject to consent
memoranda that are being distributed or drafted, and
timeframes for their lodgement with the Court.
3
At this stage, there are sets of consent order documentation outstanding
on 37 appeal topics. Of those 37 topics:
3.1
3 sets have been filed with the Court and are pending
determination.
3.2
9 sets are with the parties for comment. This includes topic
40, which following receipt of the memorandum from
dated 22 April 2021, cannot yet be sent in final.
Subject to any comments received, the others should be sent
in final for signing by the end of next week.
3.3
7 sets are with the parties for signing. This includes a set
originally sent in mid-February and one on 24 March that are
yet to be signed by all parties.
3.4
14 sets are currently being drafted by the Council for
circulation to the parties. 7 of which have been drafted and
should be circulated to parties for comment within the next
two weeks.
1
3.5
4 sets cannot yet be drafted but will be drafted following
confirmation of the outstanding issues on topics 42, 44 and
NZCPS 11(a), which also has implications on topic 16.
Council understands these issues are largely resolved subject
to confirmation of final drafting by the parties.
4
The relevant consent order status and topics they relate to are set out in
Appendix 1 to this memorandum.
5
The Council cannot confirm a timeframe for lodgement of the
outstanding consent orders, as it is reliant on the parties signing and
returning documentation.
6
In that regard, the Council requests that the Court direct a timetable for
finalising consent documentation as follows:
6.1
once circulated by the Council in draft, the parties have 5
working days to provide comment or confirm agreement with
the documentation; and
6.2
once circulated by the Council in final, the parties have 5
working days to sign and return or be deemed to have
accepted. At which point, the Council will file, confirming
who has signed, and who has not.
Definition of River Mouth - proposed section 293 application
7
The Council wishes to advise the Court that a new issue has arisen
related to the identification of river mouths in the Proposed Plan.
Council intends to file a section 293 application to seek this is remedied.
2
8
In summary, the Operative Regional Coastal Plan (
RCP) included the
following statement after its list of specified river mouth 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.
9
This statement enabled the Council and plan users to determine where
the mouth of a river was for the purpose of defining the landward
boundary of the coastal marine area where that river mouth was not
expressly listed in the RCP.
10
This is important given the RMA defines the CMA as:
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
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
11
'Mouth' is also defined in the RMA:
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
1 Regional Coastal Plan, p221.
3
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
12
Similar to the RCP, the Proposed Plan expressly identifies some, but not
all, river mouths in the region. Unlike the RCP, there is no equivalent
general statement as to location for the remaining rivers in the region.
As a result, in some cases the Proposed Plan does not identify the
location of all river mouths in the region. That, in the Council's view,
provides an area of uncertainty for the Council and plan users as
determining where the coastal marine area is (and therefore, where the
RCP provisions apply) is not possible.
13
The failure to include the text was an inadvertent error. The text was not
included in the notified version of the PNRP or picked up during the
decision-making process. Therefore, the clause 16 correction process is
unavailable as the correction goes beyond scope of that provision.
14
In addition, the Council has reviewed the scope of all appeals filed and
does not consider the addition of the above text to be within scope of
any appeal or appeal point. As the Proposed Plan was a replacement for
the five existing regional plans, including the RCP, the change is
considered to be within the scope of the Proposed Plan.
15
Given the appeals on the Proposed Plan remain live, the Council would
like to rely on the section 293 process to address this issue. It does not
wish to delay resolution of the appeals by notifying a variation to the
Proposed Plan, or by waiting until the conclusion of the appeals process
to notify a new plan change to address this issue.
16
The Council has contacted the Minister and the territorial authorities
within the Wellington region. All support the inclusion of the amended
text as the method to identify river mouths in the region.
17
The Council intends to formally apply to the Court for the utilisation of
this process, which would include the specific amendment sought, why
it is necessary and an assessment against section 32. However, in the
4
interests of transparency, the Council wished to draw the Court's
attention to this issue now.
18
The Council is aware of the limitations of the section 293 process, and
the necessity for it to follow a hearing on the Proposed Plan. In
addition, as noted above, while this is not directly related to a specific
appeal, the Council is raising it in the context of the appeals more
generally. These matters will be addressed in further detail at the time
of formal application.
Date:
23 April 2021
. . . . . . . . . . . . . . . . . . . . . . . . . .
K M Anderson / E L Manohar / K H Rogers
Counsel for Wellington Regional Council
5
