ROYAL FOREST AND BIRD PROTECTION SOCIETY OF NEW ZEALAND INCORPORATED v CANTERBURY REGIONAL COUNCIL [2019] NZHC 2223

ROYAL FOREST AND BIRD PROTECTION SOCIETY OF NEW ZEALAND INCORPORATED vCANTERBURY REGIONAL COUNCIL [2019] NZHC 2223 [5 September 2019]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECIV-2018-409-000851[2019] NZHC 2223BETWEEN ROYAL FOREST AND BIRDPROTECTION SOCIETY OF NEWZEALAND INCORPORATEDAppellantAND CANTERBURY REGIONAL COUNCILRespondentHearing: 17 June 2019Appearances: D Salmon and P Anderson for AppellantP A C Maw and K Dickson for RespondentJudgment: 5 September 2019JUDGMENT OF DUNNINGHAM JThis judgment was delivered by me on 5 September 2019 at4.00 pm, pursuant to r 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate: 5 September 2019Introduction[1] In July 2015, the Canterbury Regional Council (the Council) issued an advicenote explaining how the change of land use rules in the Council's Hurunui and WaiauRiver Regional Plan (HWRRP) would apply to dryland farmers (the Advice Note).[2] The Royal Forest and Bird Protection Society of New Zealand Inc (Forest andBird) applied to the Environment Court seeking a declaration that the Advice Notewas unlawful. Forest and Bird's primary concern was that the Advice Note stated that"normal dryland farming" would not be considered a "change of land use" as definedin the HWRRP (which needed a resource consent), when the Council accepted thatdryland farming could sometimes trigger that requirement.[3] The Environment Court considered the application and issued both anInterim Decision,1 and a Final Decision,2 with the Final Decision declaring thattwo statements made in the Advice Note were unlawful. Those statements were:(a) normal dryland farming is not considered a "change in land use" asdefined in HWRRP as it contributes such a minor amount of thecatchment load; and(b) undertaking bona fide dryland farming practices in the Hurunui Districtwill not constitute a "change in land use".[4] Forest and Bird appeals the Final Decision on the basis it did not go far enough.The Advice Note should have been declared unlawful in its entirety because it is astatement that the Council will not enforce its own rules, or it at least unlawfully fettersthe Council's ability to enforce those rules.[5] The Council's stance is that, with the erroneous sentences removed, the AdviceNote constitutes an appropriate expression of the Council's compliance, monitoringand enforcement (CME) policy, and is not unlawful.The HWRRP[6] The HWRRP was one of the first regional plans developed by the Council tobetter manage the effects of discharges of nutrients associated with the use of land. Itwas made operative by the Council in December 2013.1 Royal Forest and Bird Protection Society of New Zealand Inc v Canterbury Regional Council[2018] NZEnvC 129 (Interim Decision).2 Royal Forest and Bird Protection Society of New Zealand Inc v Canterbury Regional Council[2018] NZEnvC 225 (Final Decision).[7] The relevant rule in the HWRRP, r 10.2 (sometimes referred to as "the10 per cent rule"), provides that any change in land use is a permitted activity,provided certain conditions are met. The term "change of land use" is defined in theHWRRP as follows:For the purposes of this Plan, a change in land use, is calculated on a perproperty basis, and is determined as being an increase greater than 10 per centin the long term average release of nitrogen or phosphorus to land which mayenter water, measured on a kg/ha basis, but calculated on the gross load perproperty from the date this Plan is made operative.[8] If the specified nutrient load limits for either nitrogen or phosphorous arebreached in a nutrient management area (NMA), r 11.1A specifies that a change ofland use requires a resource consent as a non-complying activity.[9] The practical consequence of this for dryland farmers had not been fullyappreciated during the process of developing the rules. At the time the HWRRPbecame operative, the Hurunui catchment was experiencing a drought. To cope withit, dryland farmers were making short term changes to their normal farmingoperations. In June 2014, in the relevant Hurunui NMA above State Highway One,the nutrient load limit for phosphorous was breached. That caused dryland farmers toraise concerns with the Council about whether short-term changes to their ordinarydryland farming practices might constitute a change in land use as defined by theHWRRP, triggering the need for resource consent. For example, short-term changesin sheep to beef ratios, or in the area of the farm converted to fodder crops to addressfeed deficits, could breach the 10 per cent rule and thus require a resource consent.[10] Furthermore, dryland farmers did not typically undertake farm nutrient budgetsusing software such as OVERSEER, and so were not in a position to undertake thecalculations required to determine whether or not the threshold for the change of landuse rules was triggered.[11] These concerns were taken to the Hurunui Waiau Zone Committee (the ZoneCommittee). The Zone Committee, in turn, requested Council staff to provide someguidance to the dryland farm community as to the types of dryland farming activitieswhich would trigger the change of land use rules.The Advice Note[12] The Advice Note itself was issued by Council staff on Council letterhead inJuly 2015, following consultation with the Zone Committee. It commences with thefollowing summary:1. The land use change provisions in the Hurunui and Waiau River RegionalPlan (HWRRP), colloquially referred to as the "10% rule", haveunintended consequences for normal dryland farming practices. Forexample, changes in the ratio of sheep to beef or changes in the area offodder crops to address feed deficits can fall outside what is permitted andtrigger a requirement for resource consent.2. Dryland farmers typically have low nutrient losses (5-10 kg N/ha/yr) andit is accepted their contribution to the nutrient load, as measured at SH1in the Hurunui River, is insignificant when compared to the contributionfrom farms which undertake high emitting practices (30-100 kg/N/Ha/yr).3. This Advice Note states Environment Canterbury's approach tocompliance with the "10% rule" in relation to dryland farming: Normaldryland farming is not considered a "change in land use" as defined in theHWRRP as it contributes such a minor amount to the catchment load.4. To remain operating without resource consent beyond 1 January 2017, allfarmers covered by the HWRRP will be required to join a NutrientManagement Collective (as per Rule 10.1) or obtain consents for theirexisting operation as an alternative to joining a Collective (as per Rule11.1). Environment Canterbury encourages all dryland farmers to join aCollective, do a Farm Environmental Plan (including preparing a nutrientbudget) and implement actions to improve management of nitrogen,phosphorous and microbial losses.5. The on-farm nutrient management regulatory framework is expected tochange following the sub-regional process for the Hurunui Waiau zonescheduled to start in 2018.[13] In the background section which follows it is acknowledged that drylandfarmers are "typically very low emitters of nutrients" and require "the ability torespond to changes in market or climatic conditions quickly by growing more feedwhen they can within a dryland context". The section concludes by saying:The purpose of this document is to outline Environment Canterbury'sapproach to implementing the nutrient rules in the HWRRP and the definitionof "a change in land use", so as to make it clear that continued bona fidedryland farming will be provided for across the Hurunui-Waiau and Jedcatchments until a plan review can take place to rectify the identified problemswith the plan.[14] In the next section entitled "Approach to compliance with the change in landuse rules in the HWRRP", the Council points out that: to achieve the best outcomes for the environment it is not efficient oreffective to allocate resources to scrutinising low emitting dryland farmerswho are not making significant changes, at the expense of supportingCollectives, ASM, and farm environment plans. With this in mind, we haveno intention of checking individual dryland farms for compliance against thechange in land use rules unless we observe wholesale changes or practiceswhich we suspect will significantly increase nutrient discharges.[15] The Advice Note goes on to list activities that would be considered a changein land use, because of their ability to trigger a wholesale increase in nutrientdischarges. They comprise the following:• Increasing irrigation• Converting to dairying• Increasing the number of adult cattle wintered on a property with orwithout irrigation (noting that the scale of the increase will determine ifthis is a "change in land use" and farmers should seek advice fromEnvironment Canterbury).• Undertaking a feedlot or feedlot support operation• Conversion to arable cropping with or without irrigation.[16] Towards the end of the Advice Note it states:In summary, it is our expectation that all farmers will commit to the HWRRP,particularly the ASM requirements, and fulfil the obligations to either operateas permitted activities or get consents. However, with respect to those farmerswho are operating within low emitting dryland farming systems, our approachto implementing the plan will be based around the following principles:• Undertaking bona fide dryland farming practices in the Hurunui Districtwill not constitute a "change in land use"[17] The Advice Note also says that the HWRRP will be reviewed to address theissue. In line with that advice, a proposed change to the HWRRP has since beennotified which is to provide:3 a new suite of provisions to provide for low intensity dryland farming tooperate as a permitted activity [and] minor consequential changes to3 Plan Change 1 to the Hurunui and Waiau River Regional Plan: Draft Section 32 EvaluationReport (Canterbury Regional Council) at 4.some existing provisions in the HWRRP to exempt normal dryland farmingactivities from rules that manage other types of farming.The Environment Court's decisions[18] In the Environment Court, Forest and Bird sought a declaration under s 310 ofthe Resource Management Act 1999 (RMA), in the following terms:An "Advice Note" issued by Canterbury Regional Council in July 2015relating to the interpretation of the definition of "change of land use" in theHurunui and Waiau Rivers Regional Plan is unlawful.[19] Forest and Bird submitted to that Court that the Advice Note purported toexempt "normal" or "bona fide" dryland farming from the operation of the change ofland use rules, even though such farming may be a non-complying activity and requireresource consent under those rules. It also submitted that the Advice Note unlawfullyfettered the Council's obligation to enforce the HWRRP, by directing the Councilaway from the requirements of the HWRRP and towards a different test relating towhether the practices are "normal" or "bona fide" dryland use.[20] The Council, however, submitted that the Advice Note was intended to provideguidance on the interpretation of "change of land use" as defined by the HWRRP, butwas not binding and did not offend relevant principles as to unlawful fettering of adiscretion. It was also issued with the intention of providing practical guidance toassist with the Council's CME functions.[21] In its Interim Decision, the Environment Court agreed the Advice Noteincluded statements regarding the change of land use rules which were "in conflictwith the proper legal interpretation of those rules".4 The Environment Court alsofound that the Advice Note was an expression of Council's policy as to how it wouldexercise its CME powers and would have "significant persuasive force as a policy".5[22] The Environment Court expressed concern over whether the Council had hadregard to a relevant consideration, being whether the Council's approach toenforcement would have any environmental significance in terms of phosphorous4 Final Decision, above n 2, at [2(c)].5 Interim Decision, above n 1, at [66].release.6 It therefore allowed the Council an opportunity to provide supplementaryevidence on whether such analysis had been undertaken and what it concluded.[23] Having received further evidence on this issue, the Environment Court issuedthe Final Decision on 20 November 2018. On the basis of the Council'ssupplementary evidence and submissions, it held that the Council had given dueconsideration to phosphorous loading risks in formulating the Advice Note.[24] The Environment Court then addressed the substantive application. It did notconsider it would be appropriate to make a declaration in the terms sought by Forestand Bird, and rule the entire Advice Note unlawful, because "the Advice Noteexpresses a Council CME policy that is soundly informed by relevant scientificanalysis".7 That said, it went on to say that two statements in the Advice Note whichsaid that normal dryland farming would not constitute a change in land use could notbe reconciled with a proper interpretation of the HWRRP. The Judge observed thatthere:8 is a clear risk that farmers will take those statements to be authoritative onthe legal effect of the HWRRP and, therefore, be unaware that their farmingis in breach of the HWRRP and the RMA.[25] The Environment Court also accepted that those inaccurate statements could"operate as an unlawful fetter on Council officer discretion" by dissuading officersfrom considering an activity as non-compliant simply because its effects were minor.9Worse, dryland farmers could "well assume the Council's word on its own plan isaccurate".10 As a consequence, the Court held that "[p]ublic interest considerationsfavour making a declaration that targets those parts of the Advice Note that are legallyunsound".11 It declared the two identified statements in the Advice Note which saidthat normal or bona fide dryland practices were not a change in land use to beunlawful.126 It being satisfied the Council had considered the effects of the policy on nitrogen discharges.7 At [36].8 At [39].9 At [40].10 At [40].11 At [43].12 As set out at [3] above.This appeal[26] Forest and Bird alleges that there were the following three errors of law in theFinal Decision:(a) the Environment Court erred in finding that the Advice Note was lawful("not legally unsound") to the extent that it expressed the Council'spolicy of not enforcing the change of land use rules in the HWRRP inrelation to specific dryland farming practices;(b) the Environment Court erred in finding that the only parts of the AdviceNote that constituted an unlawful fetter on the discretion of Councilenforcement officers were those statements that misrepresented thelegal position as to whether specific dryland farming practicescomplied with the HWRRP; and(c) in the alternative, the Court erred in finding that the Council could havea policy not to enforce a rule in the HWRRP where, in thecircumstances that existed, the policy was contrary to the Council'sobligation under a National Policy Statement to maintain water qualityand to avoid overallocation.First error of law - policy of not enforcing rulesForest and Bird's submissions[27] Forest and Bird's primary submission is that it is unlawful to adopt a policynot to enforce a rule in the HWRRP. It points out that s 84(1) of the RMA expresslyrequires a council to enforce its plan, saying:While a policy statement or a plan is operative, the regional council orterritorial authority concerned, and every consent authority, shall observe and,to the extent of its authority, enforce the observance of the policy statement orplan.As the Environment Court has previously held, the provisions of s 84 "are fundamentalto the operation of the Act in practice".13[28] Forest and Bird notes that there is a detailed process contained in sch 1 of theRMA for the preparation of plans under the RMA and for allowing for publicparticipation in the plan development process, including through appeals to theEnvironment Court. These processes often take considerable resources in terms ofboth time and money. It would undermine this process to allow a council, havingprepared a plan in accordance with it, to then issue an advice note to the effect that itwould not enforce a rule which had been approved pursuant to that process.[29] Difficulties would also be created when parties such as Forest and Bird soughtenforcement orders,14 or undertook a private prosecution for breach of rule, where thedefendant could point to an advice note as justifying that person's position. While, ofcourse, the provisions of the relevant plan would prevail, it would create uncertaintyand problems in sentencing. It would also raise the prospect of greater numbers ofprivate prosecutions.[30] The effect of the Final Decision is to sanction a policy of not enforcing a rule.Such a purported suspension of a rule by "executive fiat" has echoes of Fitzgerald vMuldoon.15 However, the proper course of action, if a rule in a plan is not working asanticipated or has some unintended consequence, is to amend the rule to remedy thedefects. It is not appropriate to simply suspend operation of the rule through an advicenote.[31] Forest and Bird says its submission is supported by the decision in WellingtonFish and Game Council v Manawatu-Wanganui Regional Council.16 That caseinvolved advice notes attached to resource consents which purported to allowadjustments to the leaching limits in resource consents. The effect of the advice noteswas that the Regional Council would not take enforcement action where activitiesresulted in leaching limits being exceeded, provided the leaching limits in the consent,13 Tait-Jamieson v Queen City Residential Ltd [1996] NZRMA 169.14 Under s 314 RMA.15 Fitzgerald v Muldoon [1976] 2 NZLR 615.16 Wellington Fish and Game Council v Manawatu-Wanganui Regional Council [2017] NZEnvC 37.as adjusted in accordance with the advice notes, were not exceeded. The EnvironmentCourt accepted that advice notes that purport to fetter enforcement are unlawful underthe RMA and made a declaration that conditions or advice notes stating, or to the effectthat, it is not intended that there will be enforcement of any specific managementpractices, are unlawful, invalid, and in contravention of the RMA.17[32] Forest and Bird also refers to the decision in New Zealand Motor CaravanAssociation Inc v Thames-Coromandel District Council, where the High Court heldthat, while there is a discretion not to prosecute in individual cases, a policy decisionof general application not to enforce a particular law would be unlawful.18[33] In that case, the Council made a bylaw under the recently introduced FreedomCamping Act 2011, identifying certain areas where freedom camping was prohibited.It mistakenly understood that its existing bylaw, which effectively prohibited campingon public land in the district, would be revoked when the new bylaw was passed. Inproceedings challenging the validity of the new bylaw, the Council said it wouldconsent to an order that the old bylaw not be enforced. However, the Court consideredit wrong in principle for a Council to maintain a bylaw but not to enforce it, saying "aCouncil should not maintain bylaws that, on the face of it, declare conduct unlawful ifthere is no intention or ability to enforce them".19 The rationale for this was explainedas follows:20Citizens are entitled to regulate their affairs in accordance with the law, andshould not be dependent on enforcement policies able to be changed withoutthe formality and publicity attendant on the actual law making process. Thisis a fundamental requirement of the rule of law.[34] Forest and Bird submits that the Advice Note here offends the same principlebecause the Council is effectively saying it will not enforce its rule as it applies todryland farmers. That is contrary to its obligations under s 84 RMA, and contrary tothe rule of law. Furthermore, it is not remedied by simply declaring the two identifiedstatements unlawful.17 At [186].18 New Zealand Motor Caravan Association Inc v Thames-Coromandel District Council [2014]NZHC 2016 at [61].19 At [61].20 At [62].The Council's submissions[35] While accepting the obligation under s 84 of the RMA, the Council emphasisesthat the RMA does not prescribe how that obligation is to be carried out, and councilshave the discretion to determine the most effective way of carrying out theirenforcement functions. As the High Court has previously determined in relation to theequivalent provision under the Town and Country Planning Act:21 there must be a discretion in the council as to how it enforces its Scheme.It may do so by persuasion, by threat, by prosecution or by seeking aninjunction, by any combination of those means and perhaps by other meansthat in particular circumstances may become available to it.[36] In that case, and subsequent cases, it is clear that the Court will be extremelyreluctant to consider intervening in a discretionary decision made by a council as tohow to carry out its function under s 84 of the RMA.22[37] Mr Maw notes that there are a number of methods through which a council canchoose to enforce its plan, ranging from education through to full regulatoryprosecution. The method chosen is up to the council, with the only requirement beingthat it is effective. Achieving high rates of compliance with limited resources requiresthe council to adopt a strategic approach to enforcement of its plan and good practicerequires the council to be consistent and transparent in its approach to enforcement.[38] Mr Maw notes that the Environment Court accepted that alternative methodsof enforcement can be effective. For example, the Environment Court accepted theCouncil's evidence that focusing on encouraging conversion from border dyke tospray irrigation had been effective in reducing phosphorous losses across thecatchment and said:23I accept the Council's evidence that its limited resources inherently mean thatit must prioritise and target CME. Risk analysis of the kind applied by theCouncil here, can have a legitimate place in a Council's approach todetermining its relative CME priorities and applying its resources accordingly.21 Manakau Shopping Centre Merchants Association v Manakau City HC Auckland CP2721/88,1 December 1988.22 Inta v Avery Brothers [2018] NZEnvC 36; and Downing v Nelson City Council EnvC ChristchurchC009/06, 30 January 2006.23 Final Decision, above n 2, at [30].[39] The Council emphasises that the Advice Note could not prevent a prosecutionbeing brought, whether by the Council or a private person, and estoppel could not beraised as a defence.24 That was recognised by the Environment Court when it said:25 the Advice Note, as a type of CME policy, does not operate as an estoppelon the Council's capacity to take prosecutorial or other enforcement action forbreaches of the HWRRP.[40] In this case, the Council's position is that the Advice Note properly advises theCouncil's CME policy in respect of the 10 per cent rule in the HWRRP, and it isunderpinned by valid scientific analysis, as was accepted by the Environment Courtand by Forest and Bird.[41] Mr Maw distinguishes the decision in Wellington Fish and Game Councilsaying the advice note in those proceedings was included on resource consents. Itpurported to adjust the leaching limits in the resource consent for any purpose and byan undefined methodology. That offended against the principles in Turner v Allison,which relate to the validity of consent conditions.26 In the present case the AdviceNote is not acting as a consent condition but is simply general guidance issued toinform the dryland farming community about the Council's approach to compliancewith a rule in the HWRRP in certain circumstances.[42] Mr Maw also distinguishes the New Zealand Motor Caravan Association casewhere the Council intended not to enforce its old bylaw until it could be revoked. Herethe rules in the HWRRP continue to have full legal effect and are able to be enforced.Indeed, the Advice Note itself recognises situations in which the rule may be triggeredand encourages farmers to approach the Council and obtain consent if it is required.In any event, in that case, the Court decided that it would be appropriate to direct theCouncil not to enforce the old bylaw while it took the necessary steps to revoke it. Inthis case, the Advice Note has always been intended to be an interim measure until aplan change could be notified to address the wider issues with the application of the10 per cent rule in the HWRRP to dryland farms. The Council submits that a similarly24 Southend-on-Sea Corporation v Hodgson (Wickford) Ltd [1962] 1 QB 416.25 Interim Decision, above n 1, at [56].26 Turner v Allison [1971] NZLR 833.pragmatic approach should be taken in this case, given the Advice Note will no longerbe relevant once the HWRRP is changed.[43] Finally, Mr Maw argues that the Advice Note does not constitute a policy ofnot enforcing planning rules. It simply provides practical guidance on how theCouncil intends to approach compliance with the 10 per cent rule. The Advice Noteidentifies particular activities that would be likely to be considered a change in landuse, as well as those that, on their face, would not appear to trigger the rule. Mr Mawsays it does not contain any express statement that the HWRRP will not be enforcedby the Council. It also reiterates the Council's expectation that farmers will "fulfil theobligations to either operate as permitted activities or get consents".[44] On this basis Mr Maw submits it is not possible to say that the Advice Noteconstitutes a policy of not enforcing rules in the HWRRP in breach of s 84 of theRMA. Instead, the Advice Note is, as the Environment Court held, in its nature a CMEpolicy which does not alter the obligations of resource users to comply with theHWRRP rules.First alleged error of law – policy of not enforcing the rules[45] The first question to be addressed is whether the Advice Note articulates apolicy of not enforcing a rule in any category of cases. In my view, it does. TheCouncil plainly accepts that dryland farming can, in the course of making year by yearfarming decisions, fall outside what is permitted under the HWRRP. Despite that, theAdvice Note makes several clear statements that the Council will not consider changeswhich fall within the normal range of activities of dryland farming as constituting achange of use as defined in the HWRRP. It says it will do this to ensure that normaldryland farming will continue to be provided for until the HWRRP is changed. Theonly logical reading of the Advice Note is that the HWRRP will not be enforced inrespect of such activities.[46] While obviously not determinative, it is nevertheless instructive to note thatfarmers also understood the Advice Note as confirming that position. Following therelease of the Advice Note in July 2015, Stuff Ltd reported that:27Environment Canterbury will no longer apply its proposed "10 per centrule" in the Hurunui catchment, meaning farmers will not be forced to getresource consent for normal farming practices, like restocking and applyingfertilisers.[47] The article refers to the risk that dryland farmers could have fallen outside the10 per cent rule in the course of their normal dryland farming operation, triggering theneed for resource consent, but "now, dryland farmers" undertaking "bona fide"dryland practices in the district will "not be at risk of being non-complying andhaving to apply for one of those consents". Farmers expressed the view that theAdvice Note gave them "confidence and certainty" and would "reduce stress".[48] In my view, the assumption that the rule would not be enforced for normaldryland farming was a logical and intended reading of the Advice Note.[49] I accept that the Advice Note makes it clear that dryland farmers can stilltrigger the rule in some cases. However, it is only where they implement "wholesale"changes to their farming practice that that will be the case. The examples giveninvolve a fundamental shift of farming practice, such as converting to dairying orarable cropping or undertaking a feedlot, all of which usually involve irrigation.28They are not simply adjustments within a normal dryland farming operation to copewith, say, a drought.[50] Looked at in totality I am satisfied that the Council has adopted a policy to notenforce its 10 per cent rule in an identified class of cases by treating them as if the10 per cent rule did not apply. This offends the principle articulated in R vCommissioner of Police of the Metropolis, ex parte Blackburn where the English Courtof Appeal held that the Commissioner could not adopt an absolute stance of27 Tim Fulton "North Canterbury farmers get reprieve on intensification units" Stuff (online ed,24 July 2015).28 Which, by definition, is no longer dryland farming.non-prosecution of certain offences.29 For instance, he could not decide to neverprosecute for theft of goods under the value of £100.30 To do so would amount to "aclear breach of duty".31[51] Blackburn has been cited with approval in a number of New Zealand cases.32In Hallett v Attorney-General (No 2), Henry J accepted that adoption of a generalpolicy of non-prosecution of certain offences would be reviewable, although in thecase before him no general policy had been adopted; rather a specific decision hadbeen made on the facts.33 Although the Council suggests that principles applying tothe police in enforcing laws made by Parliament can be distinguished from caseswhere the Council is itself the law maker, I do not agree that the principles inBlackburn should apply with any less rigour to the enforcement of rules in an RMAplan. Those rules are made with considerable public input and with the knowledgethat application of those rules will have significant consequences for how peopleundertake the regulated activities. The public should have confidence that the ruleswill be enforced, subject to a proper exercise of the prosecutorial discretion.[52] I also do not accept the unlawful nature of the statement is overcome by sayingthe HWRRP still has regulatory force and effect and the Advice Note does not act asan estoppel. It is the policy articulated in the Advice Note which is the subject of thechallenge, not the legal ability to enforce rules in a plan.[53] While the Council urges there to be pragmatism, such as there was in the MotorCaravan Association case, where the Court sanctioned non-enforcement while stepswere taken to revoke the old bylaw, those are matters which go to the Court's responseto any unlawfulness. They do not determine whether such a policy is unlawful in thefirst place.29 R v Commissioner of Police of the Metropolis, Ex parte Blackburn [1968] 2 QB 118, [1968] 1 AllER 763.30 At 136.31 At 139.32 For example in Osborne v Worksafe New Zealand [2017] NZCA 11, [2017] 2 NZLR 513 andSathyan v Police Commissioner of Wellington [2016] NZCA 532, [2017] NZAR 186.33 Hallett v Attorney-General (No 2) [1989] 2 NZLR 96.[54] In my view, read as a whole, the Advice Note does unlawfully purport to treata category of activity as permitted, and therefore not amenable to enforcement actionof any type and the Environment Court was in error to conclude that the Advice Note"was not unsound in the fact that it expresses a CME policy of not enforcing thechange of land use rules in relation to specified dryland farming practices".34[55] This error is partially, but not entirely, resolved by declaring the two passagesidentified in the Environment Court's decision unlawful. Other statements reinforcethe overall message that there will be no enforcement of the rule for normal drylandfarming. These include the statements that the rules have "unintended consequencesfor normal dryland farming practices", that the purpose of the document is to make itclear that such farming "will be provided for" until a plan review can take place, andthat it is only if a dryland farmer "changes their operation" that they will "no longerbe considered a permitted activity".[56] For completeness, I also do not consider these statements in the Advice Notecan be justified as part of a transparent CME policy. I accept that councils need toadopt strategic approaches to achieving compliance with their RMA plans and to adoptenforcement policies which can be used to determine what enforcement action (if any)they should take in response to non-compliance. However, a review of the Ministryfor the Environment's Best Practice Guidelines for Compliance, Monitoring andEnforcement does not suggest that such a policy could go so far as to preclude anyenforcement in a defined category of breaches. Rather, enforcement policies areintended to guide how the enforcement response in an individual case will bedetermined; for example, by saying what factors will be considered, how decisionswill be made, and who will make them.35[57] In summary, by stating that a class of activity would not be considered a changeof land use requiring a resource consent, when it knew that it could breach the rules,the Council went beyond expressing a lawful CME policy and adopted an unlawful34 Final Decision, above n 2, at [42].35 Best Practice Guidelines for Compliance, Monitoring and Enforcement under the ResourceManagement Act 1991 (Ministry for the Environment, July 2018) at 73.policy of not enforcing the HWRRP in those cases. The Environment Court was inerror when it concluded otherwise.Second alleged error of law – fetter of enforcement discretionForest and Bird's submissions[58] The second error alleged by Forest and Bird is that the Environment Courterred in deciding that the removal of the two identified unlawful statements from theAdvice Note removed the risk of it constituting an unlawful fetter on Council'senforcement discretion.[59] Mr Salmon's submissions for Forest and Bird refer to the decision in CancerSociety of New Zealand Inc v Ministry of Health, regarding the enforcement of theSmoke Free Environments Act 1990.36 In that case, the Ministry of Health hadpublished guidelines to assist with the determination of whether or not an area was anopen area in which smoking was allowed. The guidelines included a mathematicaltool to assist in that calculation. The Cancer Society challenged the use of theguidelines and calculator, saying these directed the enforcement officers away fromthe statutory test which simply distinguished between an "open area" and a"substantially enclosed" area, where smoking was prohibited. In that case, theHigh Court held that, while the goal of predictability and consistency was laudable,the guidelines and calculator introduced extraneous considerations and fettered thediscretion of the enforcement officers.37[60] In the present case, Forest and Bird submits the Council has similarlyintroduced an extraneous consideration into the way enforcement officers approachconsideration of whether there has a been a change of use as defined in the HWRRP.The Advice Note directs the Council away from the requirements of the HWRRP andtowards a different test relating to whether the practices are "normal" or "bona fide"dryland use.36 Cancer Society of New Zealand Inc v Ministry of Health [2013] NZHC 2538, [2013] NZAR 1461.37 At [48].[61] Furthermore, the consequence of the Environment Court's decision is tosuggest it is lawful for the Council to fetter its enforcement discretion if it hasundertaken a risk analysis. Forest and Bird say the 10 per cent rule does not providefor a risk analysis to be done to determine whether it applies or not and it is thereforean extraneous consideration. While the Court said that the rule would still have "fullforce and effect", that is not accurate when the Council has a public policy not toenforce the rule.38[62] Importantly, while the Court did declare that aspects of the Advice Note wereunlawful, Forest and Bird submits that removing the identified words does not changethe substance of the Advice Note, which is that the Council does not intend to enforcethe 10 per cent rule for dryland farmers who do not implement "wholesale changes".For example, the Advice Note advises that the Council has: no intention of checking individual dryland farms for compliance againstthe change in land use rules unless we observe wholesale changes or practiceswhich we suspect will significantly increase nutrient discharges.The Council's submissions[63] The Council, however, submits the Environment Court properly consideredand applied the approach set out in Cancer Society when coming to its decision. Itnotes:(a) the Advice Note is not prescriptive and does not contain any mandatorydirections to Council officers;(b) it does not impose an inflexible standard in terms of interpreting theprovisions in the HWRRP and, as the Environment Court said, it has nolegal effect on how the HWRRP is to be interpreted; and(c) it does not import an additional test beyond that which is set out in theHWRRP, rather it provides guidance on how the Council intends toapproach its CME functions in respect of the relevant rule.38 Final Decision, above n 2, at [30].[64] The Council places particular reliance on the following passage in the AdviceNote:It is highly likely that if a dryland farmer changes their operation and startscarrying out one or more of the above practices on their property, they will nolonger be considered a permitted activity and will trigger the requirement forresource consent. Whether these criteria are met or not, we encourage anyfarmer intending to change their land use in a way which may result in asignificant increase in the discharge of contaminants to the environment toapproach us to seek advice and talk about their options.Thus the Advice Note is only providing guidance but leaves open the question ofwhether, at law, a particular activity constitutes a change of land use as defined in theHWRRP.[65] In addition, the Council says the Environment Court was correct to reject theargument that a risk analysis was an extraneous consideration in exercising its dutiesunder s 84 RMA. As the Environment Court said, "[r]isk analysis can be a valid aspectof the Council's exercise of prosecutorial discretion in the exercise of its duty in s 84RMA".39[66] In any event, there is nothing within the Advice Note that states that theCouncil will not enforce the 10 per cent rule on the basis of its risk analysis. Indeed,it makes it clear that where it has reasonable grounds to believe that there has been abreach, it will enforce it. It therefore does not fetter the discretion of the Council inan unlawful way.Discussion[67] I have already determined that the Advice Note went beyond articulating alawful CME policy by determining that a category of activity would not be treated asbreaching the HWRRP rules and, by implication, would not be amenable to any typeof enforcement action.[68] I accept, however, that it would have been legitimate for the Council to:39 At [30].(a) identify priorities for enforcement;(b) identify the range of enforcement options it would consider; and(c) identify factors that would be taken into account in determining theappropriate enforcement action in any particular case, which couldinclude a risk analysis of likely environmental effects.Thus, I accept that many of the matters covered in the Advice Note are legitimateconsiderations in determining how an enforcement officer would respond to anyparticular identified non-compliance.[69] However, the primary difficulty with the Advice Note is that it does not just setout general principles which could then be applied in individual cases ofnon-compliance, it identifies a category of activity that would be considered to becompliant with the rules when it may in fact breach them. Thus, even though theHWRRP continues to have full force and effect, the Council's promulgated positionwould interfere with the discretion of Council officers. It would risk them taking intoaccount the extraneous consideration of the position promulgated in the Advice Notethat normal dryland farming was to be treated as a permitted activity. That contradictsthe plain wording of the HWRRP.[70] Furthermore, this was accepted by the Environment Court to a large degree,saying that:40Those inaccurate representations of the legal effect of the HWRRP couldoperate as an unlawful fetter on Council officer discretion [by] dissuadingofficers from considering [dryland farming] as non-compliant on the invalidfooting that, by reason of minor effects, the activity is compliant.[71] However, it is implicit in the Court's decision that removal of the two identifiedstatements would avoid that outcome. Again, I do not agree.[72] The Advice Note was published in the expectation that it would alter howenforcement officers approached their task. Furthermore, it set up the expectation in40 At [40].dryland farmers that the Council would have regard to the statements in the AdviceNote before making any decision to take enforcement action under the HWRRP.While the removal of the two identified statements largely addresses that issue, it doesnot remove it entirely. The statements identified at [25] above still have the effect ofdirecting enforcement officers to ignore breaches of the 10 per cent rule in the drylandfarming context.[73] In my view, therefore, the Advice Note does unlawfully fetter Council officers'discretion, even as amended by the Environment Court, and the Environment Courtwas in error not to recognise this.Third alleged error – contrary to the National Policy Statement for FreshwaterManagementForest and Bird's submissions[74] The third ground of appeal is that it is unlawful for the Council to have a policynot to enforce a rule in its plan where the policy is contrary to the Council's obligationunder the National Policy Statement on Freshwater Management (NPSFM) tomaintain water quality and avoid overallocation.[75] Forest and Bird refers to objective A2 of the NPSFM, which requires that:The overall quality of freshwater within a freshwater management unit ismaintained or improved while:(c) improving the quality of freshwater and water bodies that have beendegraded by human activities to the point of being overallocated.Forest and Bird also refers to policy A1, which requires the Council to ensure its plans"establish methods (including rules) to avoid over-allocation".[76] Forest and Bird argues that the HWRRP gives effect to the NPSFM policies byproviding for catchment load limits for the nutrient contaminants nitrogen andphosphorous. However, applying those limits, the Hurunui River is "overallocated forphosphorous and fully allocated for nitrogen".[77] Forest and Bird also notes that in promoting the plan change to the HWRRP toaccommodate dryland farming, the Council has been unable to simply permit thatactivity as this would result in an overallocation. Instead the plan change has had tooffset the losses expected from permitting normal dryland farming activities by havingother dischargers of nitrogen relinquish that right. Thus, the plan change to amend the10 per cent rule is dependent on the nitrogen losses expected from dryland farmingbeing offset.[78] However, such offsetting is not required under the approach mandated by theAdvice Note, where dryland farmers can undertake activities which trigger the changeof use rule by increasing nutrient discharges by more than 10 per cent. It wouldtherefore be contrary to the NPSFM to allow the Council to over allocate nitrogenthrough its Advice Note with no off-setting, when it acknowledges it has to accountfor this in its plan change process.The Council's submissions[79] The Council accepts that the NPSFM requires regional councils to maintainwater quality and to improve it where degraded to the point of being overallocated.[80] However, the Council submits that the Environment Court made factualfindings that the CME policy contained in the Advice Note would not have adverseimpacts on nutrient losses. In this regard, Mr Maw pointed to the Court's conclusionthat the Advice Note was "properly underpinned by analysis of any risks ofphosphorous [and nitrogen] loading".41 Furthermore, Forest and Bird had made itclear in its notice of appeal that it did not dispute the scientific analysis underpinningthe Advice Note. In those circumstances, Mr Maw argues that Forest and Bird appearsto be challenging the factual findings of the Environment Court decision in respect ofthe effect of losses of nitrogen and phosphorous on the environment as a result ofimplementing the Advice Note. That is not an appropriate ground of challenge in anappeal on a question of law under s 299 RMA.41 The Final Decision, above n 2, at [34].Discussion[81] Forest and Bird's appeal can only be brought on questions of law.42 In respectof alleged errors in the Court's factual findings on such appeals, the Supreme Courthas said:43An appeal cannot be said to be on a question of law where the fact-findingcourt has merely applied law which it has correctly understood to the facts ofan individual case. It is for the court to weigh the relevant facts in light of theapplicable law. Provided that the court has not overlooked any relevant matteror taken account of some matter which is irrelevant to the proper applicationof the law, the conclusion is a matter for the fact-finding court, unless it isclearly insupportable.[82] Forest and Bird's submission that the Advice Note is contrary to the NPSFM'sdirection to avoid overallocation was expressly considered by the Environment Court.Although the Court considered the Advice Note was in the nature of a CME policy,the Court had due regard to the risks of both additional nitrogen and phosphorousloading and found that the Advice Note was "soundly informed by relevant scientificanalysis".44 It is implicit in that finding that the Advice Note is not contrary to theNPSFM.[83] It is not for this Court to speculate on why the Council has required furtheroffsetting as part of its proposed plan change. That may simply be the reflection of aprecautionary approach. More importantly, I do not consider it is appropriate for meto reason from that, that the policy contained in the Advice Note is therefore contraryto the NPSFM.[84] I do not accept, therefore, that there is a factual basis on which I can assumethat the policy in the Advice Note is contrary to the NPSFM, and so this alleged errorof law is not established.42 Resource Management Act 1991, s 299.43 Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] NZLR 721 at [25].44 Final Decision, above n 2, at [36].What declaratory relief, if any, should be granted?Relief sought[85] In its notice of appeal Forest and Bird seeks the following declaratory relief:(a) a declaration that the Advice Note is unlawful;(b) a declaration that it is unlawful for a local authority to have a policy tothe effect that it will not enforce specific provisions of an operativeplanning document within its district; and, in the alternative(c) a declaration that it is unlawful for a local authority to have a policy notto enforce a rule where the purpose of the rule is to maintain waterquality and avoid overallocation.Council's response[86] The Council submits that in the event an error is established, the matter shouldbe referred back to the Environment Court.45 That would allow the EnvironmentCourt, as a specialist jurisdiction, to determine the application with reference to anyguidance on matters of law that the High Court may provide.46[87] Mr Maw also points out that the relief sought in the High Court goes beyondthat sought in the original declarations filed in the Environment Court, which iscontrary to the principles of natural justice.[88] Furthermore, even if the High Court considers it proper to make a declaration,it should focus on the fact-specific declaration sought in relation to the Advice Note.The second declaration sought is more hypothetical in nature and may affect the rightsof other local authorities that are not party to the proceedings. The third declarationsought is an alternative to the second. Simply because the appellant considers it might45 High Court Rules 2016, r 20.19(1)(b).46 Guardians of Paku Bay Association Inc v Waikato Regional Council (2011) 16 ELRNZ 544,[2012] 1 NZLR 271 (HC) at [32]-[33].be helpful to have an answer on that does not make it appropriate for the Court to makesuch a declaration.Discussion[89] Forest and Bird's original application in relation to the Advice Note sought adeclaration that the Advice Note was unlawful on the grounds that it "has the effect ofunlawfully fettering the Council's obligation to enforce the Hurunui and Waiau RiverRegional Plan".[90] The Environment Court, however, made an alternate declaration declaring thattwo statements in the Advice Note were unlawful.[91] The consequence of my decision is that, while the Environment Court was rightto state that those statements in the Advice Notice were incorrect, it was wrong toconclude the Advice Note, as a whole, was not "legally unsound", or that, with thosetwo incorrect statements removed, it would no longer unlawfully fetter Councilenforcement officers' discretion.[92] I see little utility in sending the matter to the Environment Court to reconsiderthe declarations made. There are no further factual findings to be made and anydeclaration that is made is solely as a consequence of the identification of theEnvironment Court's errors.[93] However, I accept that the declarations made must be fully and fairly availableon the case as originally presented. They should be specific to the facts before me andnot be simply general statements of the law, unconnected to the facts of the case, andwhich may have ramifications beyond the circumstances presented here.[94] For these reasons, I make the following declaration:(a) the Advice Note issued by the Canterbury Regional Council inJuly 2015 entitled "Dryland Farming and Triggering the Land UseChange Rules in the Hurunui and Waiau River Regional Plan" isunlawful because:(i) it purports to adopt a policy of not enforcing a specific provisionof the HWRRP in relation to "normal" or "bona fide drylandfarming"; and(ii) it has the effect of unlawfully fettering the Council's obligationto enforce the HWRRP.[95] I reserve the issue of costs.Solicitors:Wynn Williams, Christchurch