Forest & Bird wins Ruataniwha appeal

The High Court has released a judgement today that agrees with Forest & Bird that a Board of Inquiry made a material error of law in its decision on the Tukituki plan change and Ruataniwha dam consent.

The plan change, known as “Plan Change 6,” set policies and rules for integrating land and water management in the Tukituki Catchment in the Hawke’s Bay. The Ruataniwha Dam’s resource consents were premised on meeting Plan Change 6.    

Forest and Bird’s appeal related to the effects on water quality of increased nitrogen from irrigated farming. 

“We were motivated by concerns that despite the Board setting a clear limit for in-stream nitrogen levels, the methods it set in Plan Change 6 did not ensure that limit could be achieved,” says Forest & Bird’s Group Manager Campaigns and Advocacy Kevin Hackwell. 

“The same issue arose in the terms of consent for the Ruataniwha dam.”

The High Court held that the Board’s error on Plan Change 6 also impacted on its decision on the Ruataniwha Dam consent, because the Board “believed that the terms of consent for the Ruataniwha Water Storage Scheme were inextricably linked with the terms of Proposed Plan 6”.  As a result, the Court directed the Board to reconsider the challenged part of Plan Change 6 and the terms of consent for the Ruataniwha Dam after hearing the parties’ submissions. 

The Board of Inquiry’s draft decision required compliance with the in-stream limit. However, following comments from the Hawke’s Bay Regional Council the Board inserted a new deeming” provision in its final decision that “deemed” compliance with on-farm leaching rates was equivalent to compliance with the in-stream limit.

The High Court held that the parties should have been given the opportunity to comment on that material change.

“Forest & Bird is pleased that the Court also agreed with our argument that the National Policy Statement on Freshwater Management required the Board to create a regulatory regime that was capable of achieving the water quality limits that were set. The deeming provision did not provide that mechanism,” Kevin Hackwell says.

The deeming provision created "a factual fiction" that "approximately 615 farms are deemed ... not to be contributing to excessive quantities of [dissolved inorganic nitrogen] entering waterways in the catchment area when in fact they are likely to be doing so", the High Court said.

“The Board will now need to grapple with the difficult issue of whether the Ruataniwha Dam project can achieve the nitrogen limit set in Plan Change 6,” Kevin Hackwell says.

The High Court judgement states that when the Board reconsiders and changes the rules around nitrogen management, “it should avoid creating a factual fiction and ensure [the new rule] gives effect to all relevant provisions of the Freshwater Policy Statement”.

“The great thing about this decision is that it sends a clear signal to all regional councils that their regional plans must include methods that will ensure that the agreed water quality limits will be met,” Kevin Hackwell says. 

Forest & Bird, Fish & Game and the Environmental Defence Society were all parties to the appeal. Fish and Game and Forest & Bird were awarded costs.