High Court dismisses challenge to Canterbury nutrient discharge rule, despite finding error under the RMA

Environment Law Initiative v Canterbury Regional Council [2025] NZHC 4156

The High Court has dismissed The Environmental Law Initiative’s (ELI) application for judicial review of the Canterbury Regional Council’s (Council) decision to include rule 5.63 in the Canterbury Land and Water Regional Plan (Regional Plan). The Court found the Council had not properly applied section 70(1) of the Resource Management Act 1991 (RMA) when the rule was made, but held the challenge was ultimately barred by statutory time limits.

 

What rule 5.63 does

Rule 5.63 concerns the incidental discharge of nutrients from farming activities.

In summary, the rule provides that the discharge of nutrients onto or into land (in circumstances that might result in a contaminant entering water and otherwise contravening section 15(1) of the RMA) is a permitted activity, provided specified conditions are met. In practical terms, the rule allows certain nutrient discharges incidental to an authorised farming land use to proceed as a permitted activity.

 

Background to the Regional Plan process

The Regional Plan was notified in August 2012 and was supported by a section 32 report. The plan included nutrient management provisions intended to address declining freshwater quality in Canterbury, including nutrient losses leaching through soil as a result of land use activities.

The Schedule 1 process under the RMA was used to develop the Regional Plan. Following submissions and a hearing process, the final section 42A report recommended inclusion of rule 5.63 (as part of its recommendations to the previously proposed rules).

On 13 August 2015, the Council resolved to partially approve the proposed Regional Plan as recommended by its hearing panel, including rule 5.63.

 

ELI’s judicial review challenge

ELI sought orders quashing the Council’s decision to include rule 5.63. ELI argued the decision was ultra vires because the Council failed to consider and apply section 70(1) of the RMA.

Section 70(1) requires a regional council to be satisfied that specified adverse environmental effects are not likely to arise from a discharge of a contaminant (after reasonable mixing) before including a rule in a regional plan that allows that discharge as a permitted activity.

ELI submitted that, before the Council could be “satisfied” for the purposes of section 70(1), it was necessary for the Council to have:

• identified each proposed permitted activity rule requiring a section 70(1) assessment
• considered sufficient evidence of the likely effects of the discharge (after reasonable mixing)
• assessed the likelihood of the effects listed in section 70(1) occurring by reference to evidence, and be satisfied those effects were not likely to occur after reasonable mixing, and
• provided reasons explaining why and how it was satisfied the requirements of section 70(1) were met.

One of the effects ELI said the Council needed to be satisfied would not be likely to arise was any significant adverse effect on aquatic life in receiving waters after reasonable mixing. ELI argued the Council’s records did not demonstrate proper consideration of the section 70(1) requirements when deciding to implement rule 5.63.

 

The Council’s response, including the statutory bar issue

The Council opposed the application on the basis ELI’s challenge was statutorily barred by section 83 of the RMA.

Section 83 provides that a policy statement or plan held out by a local authority as being operative is deemed to have been prepared and approved in accordance with Schedule 1, and cannot be challenged except by an application for an enforcement order under section 316(3) of the RMA. An application of that type must be lodged no later than three months after the policy statement or plan becomes operative.

Alternatively, the Council argued the requirements of section 70(1) were complied with. The Council submitted that:

• section 70 does not prescribe specific steps a regional council must take to become satisfied for the purposes of section 70(1)
• the Council was not obliged to undertake that inquiry separately for each permitted activity rule, and
• it was entitled to take a holistic approach, considering the totality of the information before it through the Schedule 1 process.

 

The Court’s approach to section 70(1)

The Court considered the statutory bar question could not be assessed in isolation, and turned first to the section 70(1) issue.

Justice Mander considered the meaning of “satisfied” in section 70(1), referring to the Supreme Court’s decision in Westfield (NZ) Ltd v North Shore City Council and the Court of Appeal’s decision in Southland Regional Council v Southland Fish and Game Council. Justice Mander noted that, for a council to be “satisfied” under section 70, it must have sufficient evidence before it. The Court considered:

• the Council’s conclusion needed to be discernible from the record, and
• it needed to be apparent from that material that the decision-maker satisfied itself it had adequate information to undertake the assessment.

The Court observed that mere reference to a statutory requirement, conclusory statements, or listing relevant factors may be insufficient to show the decision-maker has substantively addressed the issue.

 

Evidence relied on and the finding of error

In relation to the decision-making record, the Council relied on submissions and evidence filed by the Director-General of Conservation (DOC) and South Island branches of Fish and Game during the Schedule 1 process.

DOC and Fish and Game were two of 18 submitters. Both raised concerns about the discharge rule, including:

• DOC’s submission that a precautionary approach was required and that the evidence indicated unacceptable damage to aquatic environments, and
• Fish and Game’s submission that the proposed plan did not adequately give effect to section 70 and that the rule should be amended or given an alternative activity status (for example, with matters of control or discretion).

The hearing panel stated it received a great deal of evidence during the Schedule 1 process and weighed that evidence in reaching its findings. However, the panel also noted that, given the volume of material and breadth of relief sought, it did not discuss or summarise each submitter’s position or the efficiency, effectiveness, benefits or costs of specific relief sought. The panel did not articulate reasons demonstrating that the effects identified in section 70 would not arise.

Justice Mander held that the Council did not provide reasons explaining why it was satisfied rule 5.63 complied with section 70(1). The Court considered that the absence of reasons addressing compliance with section 70 significantly undermined the Council’s position. Justice Mander concluded the Council erred in its consideration and application of section 70(1) when deciding to include rule 5.63, because the record did not enable the Court to conclude the Council properly addressed the issue or had an adequate evidential basis for its decision.

 

Why the challenge still failed

Despite finding an error, Justice Mander held section 83 operates as an exclusive alternative remedy clause.

As a result, a challenge to an element of an operative plan produced through a Schedule 1 process must be pursued through the prescribed statutory appeal pathways and the time-limited procedure for enforcement orders. Because ELI’s challenge did not meet those requirements (including the relevant time limits), the application was dismissed.

 

Key takeaways

This decision highlights:

• the importance of challenging plan provisions using the RMA’s prescribed processes and within statutory timeframes, and
• the importance for councils of clearly documenting how section 70 requirements are addressed when making permitted activity rules for discharges, including identifying the evidential basis for being ”satisfied” and recording reasons.