ROYAL FOREST AND BIRD PROTECTION SOCIETY OF NEW ZEALAND INCORPORATED V WAITAKI DISTRICT COUNCIL & Anor HC TIM CIV-2011-476-000350

ROYAL FOREST AND BIRD PROTECTION SOCIETY OF NEW ZEALAND INCORPORATED V WAITAKI DISTRICT COUNCIL & Anor HC TIM CIV-2011-476-000350 [20 August 2012]IN THE HIGH COURT OF NEW ZEALANDTIMARU REGISTRYCIV-2011-476-000350[2012] NZHC 2096UNDER Judicature Amendment Act 1972IN THE MATTER OF an application for review of certificates ofcompliance granted under s 139 ResourceManagement Act 1991BETWEEN ROYAL FOREST AND BIRDPROTECTION SOCIETY OF NEWZEALAND INCORPORATEDPlaintiffAND WAITAKI DISTRICT COUNCILFirst DefendantAND FIVE RIVERS LIMITEDSecond DefendantHearing: 17 July 2012Appearances: Q A M Davies for PlaintiffM R Garbett for First DefendantE J Chapman and S Goodall for Second DefendantJudgment: 20 August 2012JUDGMENT OF HON. JUSTICE FRENCHIntroduction[1] Royal Forest and Bird challenges the validity of a certificate of compliance granted by the Waitaki District Council to Five Rivers Limited under s 139 of the Resource Management Act 1991.[2] The certificate purported to certify as permitted activities a number offarming activities including "crop production and arable farming", "irrigation" and "ancillary building construction."[3] According to Forest and Bird, the Council failed to assess whether those activities are permitted activities in terms of the rules of the District Plan controlling indigenous vegetation clearance.[4] The key issues for determination are:(i) do any of the activities in question constitute vegetation clearance under the Plan?(ii) was the Council required to positively determine whether the activities were permitted in terms of the indigenous vegetation clearance rule or could it rely on the assurances of Five Rivers and issue a certificate that was conditional on compliance with the rule?(iii) even if the Council's decision to issue the certificate was unlawful, should the Court exercise its residual discretion and deny Forest and Bird a remedy?Factual Background[5] Five Rivers Limited is the registered proprietor of a 5,149 hectare high country station situated south of Lake Ohau and known as Ohau Downs. It is currently used for cattle and merino grazing. Parts of Ohau Downs have previously been developed by mechanical cultivation, oversowing and top-dressing, although the extent of former development varies and large parts of the property are undeveloped grassland.[6] Under the Waitaki District Plan, the property is zoned rural scenic.[7] The Plan describes the rural scenic zone in the following terms:The Rural S (Scenic) Zone generally covers the high country, rangelands and inland basin areas and is predominantly used for extensive pastoral farming with pockets of forestry and arable farming. The Rural Scenic Zone has a particular visual amenity associated with the dominance of open-space vistas and landforms and the lack of intensive subdivision and landuse and the overall absence of buildings and structures. Parts of the upper Waitaki contain landscapes that are outstanding due to their high degree of unity, coherence and naturalness.[8] The scheme of the Plan is that farming activities are permitted activities in the rural scenic zone, provided they comply inter alia with all the Site Development Standards. Non compliance with any one of the Site Development Standards has the effect of rendering the activity a discretionary activity rather than a permitted activity.[9] On 13 May 2010, Five Rivers applied to the Waitaki District Council under s 139 for a certificate of compliance for a number of existing and proposed farming activities.[10] The purpose of a certificate of compliance is to provide confirmation that an activity which the applicant seeks to carry out is permitted by the District Plan and does not require resource consent. It is not necessary to obtain a certificate of compliance before undertaking a permitted activity. However, the benefit of obtaining a certificate is that it preserves the status of the activity in question for five years, and so protects the applicant against a subsequent plan change. This was the key driver behind Five Rivers making its application. Five Rivers had purchased the Ohau Downs property with a view to future long term development and was worried about the Plan process which it saw as being in a state of flux.[11] On 28 May 2010, the Council granted Five Rivers' application and issued a certificate of compliance. The certificate purported to certify the following as permitted activities:Pastoral grazing for cattle (dairy), and sheep;Crop production and arable farming;Irrigation by way of central pivot irrigators and k-lines, includingancillary infrastructure;The creation and management of ponds for the purpose of storage and supply of stock water where the scale of earthworks meets the permitted activity earthworks rule;Application to land of fertilizers including nitrogen;Construction of roads, tracks and culverts for access to farm infrastructure and the farm in general where the scale of earthworks meets the permitted activity earthworks rule;Ongoing road/track maintenance and associated earthworks;Fencing and stock yard construction for stock management;Ancillary building construction – including but not limited to dairy sheds, woolsheds, hay barns, and calf rearing sheds, including their ongoing expansion (if required) and maintenance;The installation of electricity supply associated with farm activities, both overhead and underground;The fencing off of riparian margins and the planting of native vegetation within the margins; andThe harvesting and storage of grass for the feeding of stock.[12] The certificate was expressed to be subject to a condition. It stated that the Waitaki District Council accepted the activities listed above were permitted activities within the property "provided the conditions in rules 4.4 and 4.5 of the Plan are complied with." The certificate concluded: "These activities can therefore be done lawfully on this site without a resource consent ..."[13] Rule 4.4 contains the Site Development Standards. Rule 4.5 contains the Critical Zone Standards.[14] For the purposes of this proceeding,1 it is the Site Development Standards that are in issue and more particularly Standard 4.4.8 which controls the clearance of indigenous vegetation. It relevantly provides:4.4.8 General Indigenous Bush Vegetation Clearance...2. On any site there shall, over any five year continuous period, be no clearance of:(a) more than 5000 square metres of indigenous vegetation generally, except where the vegetation clearance is carried out within, and for the purposes of, maintaining an area of improved pasture; or:...Exemption to Rule 4.4.8Rule 4.4.8 shall not apply to vegetation clearance for the purposes of maintaining existing tracks, irrigation infrastructure, electricity transmission infrastructure, irrigation infrastructure yards, fence lines or existing firebreaks ...[15] In order for Site Development Standard 4.4.8 to apply to an activity,(i) it must be or involve vegetation clearance.(ii) the site where the activity will be carried out must contain indigenous vegetation.(iii) the activity must involve clearance on a scale greater than the threshold specified in the rule for the type of indigenous vegetation that will be cleared.[16] In its application for the compliance certificate, Five Rivers had stated thatindigenous vegetation as defined in the District Plan "will not be cleared inassociation with activities applied for in this application, except as required for the maintenance of existing tracks, irrigation infrastructure, yards and fencelines. Accordingly [Site Development Standard 4.4.8] will be complied with."1 Forest and Bird accept that in most other respects the activities described in the application havebeen appropriately assessed against the relevant District Plan rules.[17] It is common ground that Ohau Downs does contain indigenous vegetation although, in the absence of a full site vegetation survey, the exact extent and location of it is unknown.[18] Forest and Bird's position is that three of the farming activities listed in theapplication and certificate, either individually or in combination with the other activities, are forms of vegetation clearance. That being so, Forest and Bird argues that the Council was required to consider whether the proposal was consistent with Site Development Standard 4.4.8. It failed to do so and, accordingly, its decision to issue the certificate is invalid. Forest and Bird argues the Council had insufficient information to enable it to be satisfied that Standard 4.4.8 would be complied with and that further inquiries should have been made before the certificate could lawfully issue.[19] The three activities in question are crop production and arable farming, ancillary building construction (including ongoing expansion) and irrigation by way of a central pivot irrigator and k-lines.[20] Forest and Bird seek an order setting aside the decision to grant the certificate under s 4(2) Judicature Amendment Act 1972 and a declaration pursuant to s 4(1) that the certificate is invalid.[21] In addition, Forest and Bird also seeks what was described as a generic declaration that irrigation may be clearance of indigenous vegetation for the purposes of Site Development Standard 4.4.8.[22] For their part, the Council and Five Rivers dispute that irrigation constitutes vegetation clearance within the meaning of the Plan. As regards the other two activities (crop production and arable farming, ancillary building construction), they accept those activities may involve vegetation clearance but submit the Council was entitled to accept the statement made by Five Rivers in its application regarding compliance with Standard 4.4.8.[23] I turn now to deal with the key issues.Does irrigation constitute vegetation clearance?[24] Under the Plan, irrigation is a permitted farm activity in the rural scenic zone except within areas identified as an "outstanding landscape" where it is a noncomplying activity.[25] The application for the compliance certificate described parts of the area to be irrigated as "existing improved dryland pasture." Other parts were described as"existing undeveloped dryland pasture." Plans accompanying the application showed where irrigation was to occur. This has been calculated to involve approximately 2000 hectares. The application excluded any part of the site that fell within an outstanding landscape area.[26] As mentioned above, in order for Standard 4.4.8 to apply to an activity, the activity must be or involve vegetation clearance.[27] Vegetation clearance is defined in the Plan in the following terms:means the felling, clearing or modification of trees or any vegetation by cutting, crushing, cultivation, spraying or burning.[28] Both the Council and Forest and Bird provided expert ecological evidence regarding the effect of irrigation on indigenous vegetation. The ecologists agree that sustained irrigation will change the structure and composition of plant species, transform a naturally dry habitat into one in which indigenous vegetation cannot compete, and that over time the indigenous vegetation will be replaced by exotic species. Thus, irrigation affects the indigenous dry land vegetation through competition rather than by water directly killing the indigenous plants, although the loss of indigenous species is the eventual outcome.[29] Where the ecologists part company is the length of time required before there would be any discernible differences. According to one expert, the changes in vegetation structure and composition would be detectable after one to two months, while two other experts say only that it would be rapid. As for the exclusion of indigenous species, the estimates of time vary between one and two years.[30] I accept that the process described by the ecologists is capable of constituting modification if not clearance of vegetation. I should also note that I disagree with Mr Chapman's submission that modification only occurs for the purposes of the definition if "it is on its way to clearance." His own example of modification, namely native trees being chopped down to a certain height, undermines that contention, illustrating as it does that death need not be inevitable before modification can be held to have occurred. In my view, modification can be less than something that will eventually and inexorably lead to clearance. Ultimately, it is a question of degree.[31] The more contentious issue is the application of the second part of the definition of vegetation clearance "by cutting, crushing, cultivation, spraying orburning."[32] Forest and Bird submits there are two ways in which irrigation can be considered to be vegetation clearance. First, that the five mechanisms specified in the definition are not intended to be exhaustive but rather comprise examples of a class, namely human induced action. Under this interpretation, all that is required is human intervention. Irrigation would thus qualify but not grazing. Secondly, even if the words are intended to limit the types of actions which the Plan controls, irrigation is spraying and/or cultivation.[33] In support of those submissions, counsel referred me to the dictionarydefinitions of "spraying"2 and "cultivation",3 as well as the Plan's objectives andpolicies regarding nature conservation and maintenance of biodiversity.4 Mr Davies argued that, in order to achieve those objectives and policies, activities which will in fact clear or modify indigenous vegetation should be assumed to be captured by the definition unless clearly excluded. He urged a broad interpretation in order to avoid anomalies and prevent the underlying purpose of the Standard being frustrated. In his submission, the focus should be on outcome, not means. Mr Davies contended2 "Apply in a spray", "water or other liquid flying in small drops."3 "Prepare and use lands for crops or gardening", "grow plants especially on a large commercialscale."4 The provision of rules to control clearance of indigenous vegetation is described as animplementation method to achieve the policies for nature conservation.there was nothing that made the five specified mechanisms so special they should be singled out over other methods which have the same detrimental effect on indigenous vegetation.[34] I have carefully considered those submissions which were well made, but Iam not persuaded that irrigation does come within the Plan's definition of vegetation clearance.[35] My reasons for coming to that conclusion are as follows:(i) The definition clearly contemplates that not every activity which involves felling, clearing or modification of vegetation will constitute vegetation clearance for the purposes of the Standard. The mechanism or method by which it occurs is determinative.Otherwise, the definition would simply have read "the felling, clearing or modification of trees or any vegetation."(ii) Had the draftsperson intended that the list of mechanisms was notexhaustive, they would have used the word "includes" rather than "means".5 Other provisions in the plan such as the definition of"visitor accommodation" show an awareness of the distinctionbetween "includes" and "means."(iii) There are a number of farming activities, such as grazing, over- sowing and topdressing, which could impact on indigenous vegetation yet they are not within the definition.6(iv) The words "spraying" and "cultivation" are not defined in the Planand should be given their ordinary and natural meaning.5 Haynes v McKillop (1905) 24 NZLR 833; Caldow Properties Ltd v HJG Low and Associates Ltd[1971] NZLR 311 (CA).6 Mr Davies argued that topdressing and over-sowing were cultivation, but elsewhere in Standard4.4.8 cultivation and topdressing and over-sowing are used as distinct terms.(v) The natural and ordinary meaning of spraying in the context of vegetation clearance must mean spraying (forcing out of a container in a spray) a liquid preparation of herbicide.(vi) Similarly, cultivation in its natural and ordinary meaning in the context of vegetation clearance must mean physical turning of the soil. This is consistent with the use of the word "cultivation" when itappears elsewhere in the Plan. It is also consistent with the expectations of property owners.(vii) Irrigation is a vitally important and highly contentious issue in theWaitaki District. The word "irrigation" is specifically usedthroughout the Plan including in Standard 4.4.8 itself. Irrigation is treated as an activity in its own right. Had irrigation been intended to be included, the draftsperson would have made specific reference to it instead of relying on a strained interpretation of spraying and cultivation that is contrary to general and farming understanding.(viii) Cutting, crushing, burning, tilling the soil and spraying with herbicide can be differentiated from irrigation, in that they are capable on one application7 of directly modifying or clearing vegetation. Water, in contrast, is a natural occurrence. While sustained irrigation is not a natural occurrence, the other mechanisms involve a far greater degree of direct physical interference, and the point at which clearance or modification has occurred is generally clear and easy to identify. The practicality of administration by Council officers is a relevant consideration in interpreting the provisions of a District Plan.[36] For completeness, I should add that in considering the competing interpretations of the vegetation clearance definition, I have also considered what significance, if any, should attach to the fact irrigation is a permitted activity in the rural scenic zone.7 I use the word "capable" advisedly because I accept that there will be herbicides that may have adelayed effect and require more than one application.[37] This was an issue that attracted a great deal of argument at the hearing and accordingly it is appropriate that I address it, although, for reasons which will become apparent, it is a factor which I have treated as neutral in the interpretation exercise.[38] During a Plan variation process in 2006, Forest and Bird made a submission seeking to control irrigation and make it a non-complying activity in the rural scenic zone requiring a resource consent. One of the reasons Forest and Bird advanced in support of that position was the need to protect indigenous vegetation in the zone. The Council, however, decided on balance that such a policy and rule would not be appropriate for the rural scenic zone, apart from the outstanding landscape area. Five Rivers and the Council argue that Forest and Bird is now trying in this proceeding to achieve through the back door what it failed to achieve in the Plan variation process. In their submission, to hold that irrigation constitutes vegetation clearance for the purposes of Standard 4.4.8 would be to subvert the Council's policydecision, convert a permitted activity into one which requires a consent and undermine the distinction drawn between the rural scenic zone and the outstanding natural landscape overlay.[39] However, the Council's decision appears to have been based on the effect ofirrigation on visual amenity, rather than protection of indigenous vegetation.[40] In the absence of any evidence about the extent of indigenous vegetation in the rural scenic zone generally, I do not accept there is necessarily any inconsistency between irrigation per se being a permitted activity but requiring a resource consent if it impacts on indigenous vegetation.[41] My decision about the application of Standard 4.4.8 to irrigation turns not on the activity status of irrigation8 but rather on the wording of the definition of vegetation clearance. In my view, the wording permits of only one conclusion, namely that irrigation is outside the definition.8 Mr Davies argued that because the Plan does not address biodiversity values in setting theactivity status of irrigation throughout the zone, this shows the indigenous vegetation clearanceStandard must have been intended to address the indigenous biodiversity effects of irrigation.However, I am not persuaded that one is a necessary logical corollary of the other, especially inlight of the clear wording of Standard 4.4.8.Was the Council entitled to issue a conditional certificate of compliance?[42] As I have mentioned, the Council and Five Rivers accept that the activities of"crop production and arable farming" and "ancillary building construction" involve vegetation clearance.[43] The acknowledgement is properly made. In relation to crop production andarable farming, the application, for example, refers to "cut and carry systems" androtational cropping. Mechanical cultivation of the soil or, alternatively, direct drilling of seed accompanied by chemical spraying is contemplated. The crop production and arable farming covers an area of at least 2000 hectares.[44] As for construction of ancillary buildings, the undisputed evidence is that the construction and use of ancillary buildings would require clearing or modification of vegetation by cutting or crushing. The application also proposes the creation of ponds, roads, tracks and culverts, all of which would require removal of vegetation from the surface of the land.[45] The plan shows the indicative location of proposed buildings, with seven buildings identified as indicative infrastructure including hay barns and calf rearing sheds. It is not possible to tell from the application what the maximum area of the ancillary buildings might be.[46] While the Council and Five Rivers accept some of the activities authorised by the certificate involved vegetation clearance, that does not mean, in their submission, that the certificate authorises indigenous vegetation clearance. On the contrary, they say the certificate expressly states it is subject to compliance with Standard 4.4.8 and that if Five Rivers did undertake crop farming or building construction involving clearance of more than 5000 square meters of indigenous vegetation, then it would need to apply for a resource consent as it itself acknowledged in its application. Both emphasised that the Five Rivers application had been prepared by professional planners and showed that Five Rivers had clearly turned its mind to the issue of indigenous vegetation clearance. In their submission, the Council was entitled, indeed obliged, to process the application it received and was not required toinvestigate hypothetical ways in which the proposal could be carried out in breach of the rules.Discussion[47] Section 139 of the Resource Management Act relevantly states:139 Consent authorities ... to issue certificates of compliance(1) This section applies if an activity could be done lawfully in a particular location without a resource consent.(2) A person may request the consent authority to issue a certificate of compliance.(3) A certificate states that the activity can be done lawfully in a particular location without a resource consent.(4) The authority may require the person to provide further information if the authority considers that the information is necessary for the purpose of applying subsection (5).(5) The authority must issue the certificate if—(a) the activity can be done lawfully in the particular location without a resource consent; and(b) the person pays the appropriate administrative charge.(6) The authority must issue the certificate within 20 working days of the later of the following:(a) the date on which it received the request:(b) the date on which it received the further information under subsection (4).(7) The certificate issued to the person must—(a) describe the activity and the location; and(b) state that the activity can be done lawfully in the particular location without a resource consent as at the date on which the authority received the request.(8) The authority must not issue a certificate if—(a) the request for a certificate is made after a proposed plan is notified; and(b) the activity could not be done lawfully in the particular location without a resource consent under the proposed plan....(10) A certificate is treated as if it were an appropriate resource consent that—(a) contains the conditions specified in an applicable national environmental standard; and(b) contains the conditions specified in an applicable plan....[48] Section 139 has featured in a number of decisions.[49] It is possible to distil the following principles from the authorities:(i) Before issuing a certificate of compliance, a consent authority must first be satisfied that there is compliance.9(ii) Before it can be properly satisfied, it must have had sufficient information in order to be able to make a thorough comparison of the proposal with the applicable rules.10(iii) What amounts to sufficient information will depend on the nature of the proposal and the particular rules in question.11(iv) A thorough comparison of the proposal with the applicable rules requires the authority to undertake a point by point scrutiny of the proposal against the rules pertaining to it.12 Every aspect of the activity must be in conformity with the relevant rules.13(v) If it is certified that an activity complies with the District Plan, that is a holding out by the consent authority that the activity complies fully9 Pring v Wanganui District Council & AMI Holdings Ltd (1999) 5 ELRNZ 464 (CA).10 Ibid.11 Ibid.12 Turners & Growers Horticulture Limited v Far North District Council & Northland WasteLimited [2012] NZHC 1142; Queenstown Casinos Ltd v Dunedin City Council & Ors [1998]NZRMA 209 (HC); United Seadown Incorporated & Anor v Timaru District Council [2010]NZEnvC 313; Nigro v Far North District Council & Anor [2012] NZEnvC 76; New ZealandWineries Ltd v Marlborough District Council [2001] NZRMA 445 (HC).13 Mawhinney v Waitakere City Council [2009] NZCA 335; Wawatai v Hamilton City CouncilPlanning Tribunal Hamilton W17/96, 26 February 1996..and in every respect.14(vi) If the activity can be carried out lawfully in the location without a resource consent, the authority must issue the certificate.(vii) On the other hand, if the activity does not comply with the requirements of the District Plan in all respects, a certificate under s 139 may not be issued. The authority does not have a discretion as to whether or not to issue a certificate. The activity either conforms with all applicable rules or it does not.15[50] Applying those principles to the facts of this case, I am satisfied that the Council has acted unlawfully in issuing the conditional certificate to Five Rivers.[51] The Council was presented with an application and accompanying plans. The plans appeared to suggest at least the possibility of vast tracts of indigenous vegetation in areas where the proposed activities were to be undertaken. The plans were not detailed and did not use the term "indigenous vegetation" as such, but did refer to "'native' pasture." In my view, having regard to the nature and scale of the proposed activities and the scale of possible indigenous vegetation suggested by the plans, it was incumbent on the Council to do more than just rely on the bare assertion of the applicant. All that Five Rivers was asserting was that indigenous vegetation clearance would not occur but without explaining why. This in circumstances where the Council did not know exactly where the indigenous vegetation was, the extent of it and how Five Rivers was going to comply.[52] The Council was required to satisfy itself as to what the activities actually involved, including whether any vegetation clearance was proposed and, if so, whether it would breach Site Development Standard 4.4.8.14 Havelock North Citizens Incorporated v Hastings District Council (2008) 14 ELRNZ 384 (HC).15 Turners & Growers Horticulture Limited v Far North District Council & Northland WasteLimited [2012] NZHC 1142.[53] Put another way, the Council did not have sufficient information to support its decision that the activities described in the application were permitted activities, and it could not overcome that deficiency by inserting a condition in the certificate.[54] In the face of the information in the Plans, the Council should have sought clarification as to why was Five Rivers asserting that Site Development Standard 4.4.8 would not be breached. Was it because Five Rivers considered there was no indigenous vegetation,16 or that the activities would be carried out in a way that did not involve clearance of indigenous vegetation, or that the scale would not exceed the thresholds taking into account the exemptions?[55] The council should also have sought a quantitative botanical survey detailing the indigenous vegetation present on the sites, together with an assessment of those findings in terms of the indigenous vegetation clearance rules under the Plan. As contended by Forest and Bird, the council also needed to know (possibly in conjunction with a site visit):(a) what particular activities were covered by crop production and arable farming and, if this included removal of any existing indigenous vegetation, how these activities complied with Site Development Standard 4.4.8.(b) the scale of ancillary buildings and evidence to demonstrate that the construction of these buildings (either by themselves or together with other activities such as the construction of roads and culverts) would not clear indigenous vegetation beyond the thresholds specified in Site Development Standard 4.4.8.(c) proof that any clearance beyond the thresholds specified in Site Development Standard 4.4.8 was in accordance with the maintenance of existing tracks exemption referred to by Five Rivers.16 There is a suggestion in the affidavit of a company director that Five Rivers understood(erroneously) that the land did not contain indigenous vegetation, at [67].[56] Only then could the Council be properly satisfied whether or not the proposal involved clearance of indigenous vegetation beyond the permitted threshold.[57] In affidavit evidence, the Council's policy planner suggests that these furtherinquiries would be impractical having regard to the fact that the filing fee payable on an application for a compliance certificate is only $150 and that Council is subject to a legislative timeframe of 20 working days in which to issue the certificate.[58] However, there was uncontested evidence that in fact the Council has, at least in one other case, called for a vegetation survey. Further and more importantly, s 139 itself provides that if the Council requests further information then the 20 days only starts running once the further information is received. The very existence of that provision shows the legislature clearly contemplated there would in appropriate cases be a need for further information and inquiries. The Council also has the power under s 37 of the Resource Management Act to extend the time limit and is entitled to charge the applicant not only the standard filing fee but also the actual costs of processing.[59] Were a Council not required positively to assess whether any relevant rules will be breached by the activities, compliance certificates would become meaningless. As Mr Davies submitted, a certificate of compliance is of no use to an applicant if all it does is record what the Plan says are permitted activities. The value of a certificate lies in it being an assessment of a particular application against the Plan provisions to test whether or not an activity contemplated for an area is in fact a permitted activity. It defeats the purpose of a compliance certificate for the point by point analysis to be deferred.[60] The certificate is supposed to certify that every aspect of the proposed activity is in conformity with the relevant rules.[61] In coming to this conclusion, I have not overlooked two further arguments raised by the defendants.[62] The first is a submission that most of the cases which I have cited were decided before s 139 was amended in 2009.17 In particular, the cases predate s 139(10) on which the Council relies heavily in this proceeding. Section 139(10) states:(10) A certificate is treated as if it were an appropriate resource consent that—(a) contains the conditions specified in an applicable national environmental standard; and(b) contains the conditions specified in an applicable plan.[63] However, I am satisfied that the 2009 amendments to s 139 including subs10 were purely stylistic drafting changes, and not substantive. It has been said of the predecessor to s 139(10) that it did not absolve a local authority from full consideration of an application before the issue of a certificate.18 Neither, in my view, does s 139(10). All s 139(10) does is record the self evident legal consequences of the deemed resource consent which is granted by the issue of a certificate under s 139.[64] The second further argument raised by the defendants was that Forest and Bird was being inconsistent. The defendants pointed out that the application by Five Rivers contained a number of other undertakings that define the terms of the certificate, relating to compliance with the maximum height, setbacks from the boundaries and noise. In the defendants' submission, it is inconsistent for Forest andBird to challenge the Council's reliance on the undertaking about compliance withStandard 4.4.8 while, at the same time, apparently accepting the Council was entitled to rely on these other undertakings.[65] However, in my view, the criticism is unfair. Forest and Bird's focus onStandard 4.4.8 simply reflects its special interest in the environment. Moreover, as Mr Davies submitted, there is an important distinction between the undertaking regarding compliance with Standard 4.4.8 and the other undertakings. Complying with setback, for example, is akin to drawing a line, which is fundamentally different17 Resource Management (Simplifying and Streamlining) Amendment Act 2009.18 Queenstown Casinos Ltd v Dunedin City Council & Ors [1998] NZRMA 209 (HC), referring tos 139(6).to an applicant saying, "I will comply with indigenous vegetation clearance", incircumstances when the consent authority does not even know what is indigenous vegetation and what is not, how the applicant intends to comply, and whether the proposal is capable of being undertaken without breaching the rule.Should the Court deny Forest and Bird a remedy in the exercise of its residual discretion?[66] It is well established that the Court has a residual discretion to deny relief, even if satisfied there is a reviewable error.[67] However, it is also well established that this should only be done in special circumstances.[68] Five Rivers argues that there are special circumstances which displace the usual presumption. It points out the certificate was issued two years ago, that the certificate was part of its long term development strategy and that it has incurred significant expenditure, running to millions of dollars.[69] However, it is apparent that the expenditure which has been incurred was either incurred prior to the certificate being issued or not incurred specifically in reliance on the certificate.[70] Further, Forest and Bird has not been guilty of any disqualifying conduct. There is a reasonable explanation for its delay. Forest and Bird was not in a position to demonstrate that the council had failed to consider Standard 4.4.8 until it had some evidence that the sites do indeed contain indigenous vegetation. As explained by Forest and Bird's Otago/Southland Field Officer, this cannot be assessed, other than by a suitably qualified and experienced ecologist going on site and undertaking a proper vegetation survey. Once the evidence became available, Forest and Bird filed its proceeding promptly.[71] Mr Garbett for the Council submitted that if I were to find the certificate was unlawful, then the appropriate remedy would be to delete the condition.[72] However, deletion of the condition would not address the underlying cause of the illegality.[73] In my view, the only appropriate remedy is to quash the certificate and declare that it is invalid.[74] In light of my rulings regarding irrigation and the definition of "vegetation clearance," it is not necessary for me to consider Forest and Bird's application for ageneric declaration.[75] My decision is confined to the validity of the certificate issued to Five Rivers.Outcome[76] Forest and Bird's application for judicial review is granted.[77] There will be a declaration that the Council's decision to issue a certificate of compliance on 28 May 2010 to Five Rivers was invalid, and there will be an order quashing that decision.[78] The declaration is confined to the validity of the certificate issued to Five Rivers.[79] As regards costs, my expectation is that counsel will be able to agree costs but in the event agreement does not prove possible, then I direct that Forest and Bird is to file submissions first, with submissions from the Council and Five Rivers to follow within 10 working days of receipt of the Forest and Bird submissions. Submissions should be no longer than five pages in length.[80] It may assist the parties if I indicate my provisional view which is that, although Forest and Bird did not succeed on its argument about irrigation, its application has been successful and a remedy granted. In those circumstances, my provisional view is that Forest and Bird is entitled to costs on a 2B basis.Solicitors:Gascoigne Wicks, PO Box 2, Blenheim 7240 – qdavies@gwlaw.co.nzRoyal Forest and Bird Protection Society of New Zealand Inc, PO Box 266, Nelson 7040Anderson Lloyd, Private Bag 1959, Dunedin 9054– michael.garbett@andersonlloyd.co.nzDuncan Cotterill, PO Box 5, Christchurch – e.chapman@duncancotterill.com