Remediation New Zealand Limited v Taranaki Regional Council [2024] NZEnvC 213

In this case, the Environment Court builds further on case law regarding the National Policy Statement for Freshwater Management 2020 and section 107 of the Resource Management Act 1991.

This case concerned an appeal against Taranaki Regional Council's (Council) decision to refuse Remediation New Zealand Limited's (RNZ) application for discharge permits for a composting operation. The discharge permits were intended to replace an existing permit. They would authorise the discharge of:

• waste material to land for composting,
• treated stormwater and leachate from composting operations onto and into land in circumstances where contaminants may enter water, and
• emissions to air, specifically odour and dust from composting operations.

The Environment Court declined RNZ's appeal and thus refused to grant the discharge permits. The "biggest factor" for doing so was the uncertainties within the evidence, which made the Court "more than merely uncomfortable about granting consent." Despite this, the Court still engaged with various issues, notably those related to freshwater. This article focuses on the freshwater issues concerning the National Policy Statement for Freshwater Management 2020 (NPS-FM) and section 107 of the Resource Management Act 1991 (RMA).

 

National Policy Statement for Freshwater Management 2020

Given that the Council's regional plan had yet to give effect to the NPS-FM, the Court stated, "the NPS-FM should be given considerable weight in assessing this application". Subsequently, the Court considered the relevant provisions of the NPS-FM.

The Court noted the fundamental concept of Te Mana o te Wai. This is set out in cl 1.3(1) of the NPS-FM:

Te Mana o te Wai is a concept that refers to the fundamental importance of water and recognises that protecting the health of freshwater protects the health and well-being of the wider environment. It protects the mauri of the wai. Te Mana o te Wai is about restoring and preserving the balance between the water, the wider environment, and the community.

The Court observed that "while [cl 1.3(1)] employs the word 'balance' [it] is in fact more about a spectrum". It also noted that four of the six Te Mana o te Wai principles "seem to import or at least acknowledge New Zealanders' interactions with freshwater". The Court then held that:

We tentatively conclude at this stage of our analysis that the proposition that protection and preservation of the health of freshwater is therefore not expressed in completely absolute terms in the NPSFM, although the bar is high.

In terms of the Te Mana o te Wai hierarchy, the Court observed that:

Turning to the expressions of priority (a, b and c) in clause 1.5 and objective 2.1, we detect a strong “steer” for planning authorities down through the National Objectives Framework (NOF), Regional Policy Statement (RPS) and regional plan processes. That does seem to result in a question being begged as to how consent applications are to be treated meantime. The conundrum is how one avoids purporting to pre-empt the outcomes of those future processes while meeting the strong wording of clause 1.5 and Objective 2.1.

In resolving that "conundrum", the Court referenced the Supreme Court's decision in Port Otago Limited v Environmental Defence Society [2023] NZSC 112. Ultimately, the Court held that the Supreme Court's decision did not assist RNZ in meeting the "particularly high bar" set out in the NPS-FM.

Finally, there was disagreement between RNZ and the Council as to whether the discharge permit should require an in-stream limit for ammoniacal nitrogen in line with the national bottom line set in the NPS-FM or that set by the United States Environmental Protection Agency criteria. Observing that "the NPS-FM has been developed to provide national guidance and best practice in the New Zealand context", the Court held that the ammoniacal nitrogen bottom lines in the NPS-FM were appropriate.

 

Section 107

The Court found that "there have been significant adverse effects of the activities on aquatic biota and we consider that this will continue to be the case". This therefore engaged section 107(1)(g) of the RMA, which prohibits a consenting authority from granting a discharge permit where, after reasonable mixing, there will be a "significant adverse effect on aquatic life".

The Court then considered whether the discharge permit could still be granted under section 107(2), which allows a permit to be granted (among other things) in "exceptional circumstances." However, the Court held there was "[n]o evidence … led about exceptional circumstances that we could find would cross the high bar ('out of the ordinary') set by the subsection". The Court considered that RNZ's composting operations were "far from 'exceptional'".

After citing the High Court in Environmental Law Initiative v Canterbury Regional Council [2024] NZHC 612, the Environment Court found that:

There has been totally insufficient evidence on behalf of RNZ, or at all in the case, to enable us to hold that the prohibition in s 107(1)(g) would not be breached if we were to grant consent. Indeed, on the evidence such as it is, we consider the appropriate finding to be that there will be no improvement, and very likely a worsening of contamination of water and significant adverse effects on aquatic life, at the very least for 10 years. We are prohibited from granting consent in these circumstances.

 

Conclusion

The Court's decision in Remediation (NZ) Ltd reinforced the standards set by both the NPS-FM and section 107 of the RMA concerning discharges and provides guidance to consenting authorities considering the NPS-FM in a resource consent application context where the regional policy statement has yet to give effect to the NPS-FM.

However, with the enactment of the Resource Management (Freshwater and Other Matters) Amendment Act 2024, the approach to considering section 107(1)(g) of the RMA going forward will differ from the Court's approach in this case. This is because the new section 107(2A) of the RMA now enables a consent authority to grant a discharge permit or a coastal permit for activities that would otherwise contravene section 15 or 15A if the consent authority:

• is satisfied that, at the time of granting, there are already effects described in subsection (1)(g) in the receiving waters; and
• imposes conditions on the permit; and
• is satisfied that those conditions will contribute to a reduction of the effects described in subsection (1)(g) over the duration of the permit.