ELLESMERE SUSTAINABLE AGRICULTURE INCORPORATED v CANTERBURY REGIONAL COUNCIL [2015] NZHC 3011

ELLESMERE SUSTAINABLE AGRICULTURE INCORPORATED v CANTERBURY REGIONAL COUNCIL [2015] NZHC 3011 [1 December 2015]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYCIV-2015-409-333[2015] NZHC 3011BETWEEN ELLESMERE SUSTAINABLEAGRICULTURE INCORPORATEDAppellantAND CANTERBURY REGIONAL COUNCILRespondentCIV-2015-409-327BETWEEN NORTH CANTERBURY PROVINCE OFFEDERATED FARMERS OF NEWZEALAND INCORPORATEDAppellantAND CANTERBURY REGIONAL COUNCILRespondentHearing: 1 December 2015 (On the papers)Appearances: J M Appleyard for AppellantPAC Maw for RespondentJudgment: 1 December 2015JUDGMENT OF DUNNINGHAM J[1] This judgment deals with the proposed settlement of two appeals against Variation 1 to the Canterbury Land and Water Regional Plan ("Variation 1"). The appellants and the respondent, the Canterbury Regional Council ("CRC"), have reached agreement on the resolution of the appeals and have filed a full consent memorandum outlining the basis for settlement of these appeals. That agreement is supported by the other parties to the appeals being:(a) Ellesmere Sustainable Agriculture Incorporated;(b) Federated Farmers of New Zealand;(c) Royal Forest and Bird Protection Society of New Zealand Incorporated; and(d) Te Runanga o Ngai Tahu.[2] Having reviewed the memorandum I am satisfied that the appeals should be granted on the basis of the consent order filed. In particular, I am satisfied that:(a) the proposed amendments are consistent with the purpose and principles of the Environment Canterbury (Temporary Commissionersand Improved Water Management) Act 2010 ("ECan Act"), and with the relevant provisions of the RMA, in particular its purpose and principles;(b) I have jurisdiction to make the orders sought under r 20.19 of the High Court Rules and ss 300-307 of the RMA, which apply "with necessary modifications" under the provisions of the ECan Act;1(c) the consent orders sought are within the scope of the appeals;(d) in the circumstances as set out in the consent memorandum it is preferable for this Court to amend the rules of Variation 1 rather than refer the matter back to the CRC for rehearing as the amendments proposed are agreed by the parties and achieve the reasoning intended by the CRC.The appeals[3] The appeals relate to rr 11.5.8 and 11.5.9 of Variation 1, which included a decision to remove the 15kg/ha/yr permitted threshold for nitrogen loss within the Phosphorous Sediment Risk Area or the Lake Area in the Cultural Landscape/Values1 As was the approach adopted by Whata J in North Canterbury Fish and Game Council v Canterbury Regional Council, HC Christchurch CIV-2013-409-00980, 2 December 2013, and decisions cited therein.Management Area ("the relevant areas"). The appellants both say this amounted to an error of law as no submission on Variation 1 sought that change.[4] Both appeals sought that the appeal be allowed, and that either the relevant rules were amended so that they remained within scope, or that the matter be referred back to the Council for reconsideration in light of the findings of this Court.[5] The CRC agrees with the appellants that there was no jurisdiction to remove the ability for farming activities to increase their leaching up to 15kg/ha/yr in the relevant areas, because there was no submission on Variation 1 which sought the removal of that provision.[6] The parties have therefore reached agreement that, to correct this error, the wording of r 11.5.9(3) of Variation 1 should be amended to read as follows:(3) the nitrogen loss calculation for the property has not increased above either 15 kg per hectare per annum or the nitrogen baseline, whichever is greater.[7] The CRC is satisfied that this would enable farmers in the relevant areas to leach up to 15kg/ha/yr of nitrogen as a controlled activity. However, r 11.5.8 would remain unchanged so that farming in the relevant areas could not occur as a permitted activity, and this is consistent with the reasoning given in the Commissioners' recommendations (which formed the CRC's decision) regarding theappropriateness of certain activities being within a consenting framework.[8] The other parties to the appeals have agreed to the amendments proposed.Outcome[9] I am satisfied that it is appropriate to exercise the Court's power underr 20.19 to amend the text of Variation 1 as proposed in the parties' jointmemorandum. Accordingly, I order that the text of Variation 1 be amended in accordance with Appendix B attached to the memorandum of joint counsel recording settlement dated 25 November 2015.[10] The parties are also agreed that there is no issue as to costs in respect of these appeals.Solicitors:Chapman Tripp, ChristchurchWynn Williams, Christchurch