IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE	
CIV-2022-441-82
[2024] NZHC 2611	

UNDER	the Resource Management Act 1991	
IN THE MATTER	of an appeal pursuant to s 299 of the Act	
BETWEEN	HAWKE’S BAY REGIONAL COUNCIL
Appellant	
AND	ROYAL FOREST AND BIRD PROTECTION SOCIETY OF
NEW ZEALAND INCORPORATED
Interested Party	

Teleconference:	30 August 2024; further submissions received 6 September 2024	
Appearances:	P A C Maw and E R Pairman for Appellant
P Anderson and M Downing for Interested Party	
Judgment:	11 September 2024	

JUDGMENT OF McHERRON J

Introduction

[1]	Under the Resource Management Act 1991, a water conservation order may be made in respect of any water body. A water conservation order is secondary legislation, made by Order in Council on the recommendation of the Minister for the Environment. The Minister may only make a recommendation for a water conservation order in accordance with a report of a special tribunal or the Environment Court where it has conducted an inquiry.1

1	Resource Management Act 1991, s 214.
HAWKE’S BAY REGIONAL COUNCIL v ROYAL FOREST AND BIRD PROTECTION SOCIETY OF NEW ZEALAND INCORPORATED [2024] NZHC 2611 [11 September 2024]

[2]	The purpose of water conservation orders is to recognise and sustain:2

(a)	outstanding amenity or intrinsic values which are afforded by waters in their natural state; and

(b)	where waters are no longer in their natural state, the amenity or intrinsic values of those waters which in themselves warrant protection because they are considered outstanding.

The present appeal

[3]	The Environment Court has recommended a water conservation order in respect of the Ngaruroro River.3 As can be seen in the map attached to this decision, which comes from the Environment Court’s final report, the River is divided into upper (Schedules 1A and 1B) and lower (Schedule 2) waters. The upper waters run from their source in the Kaimanawa Ranges and are used for (mainly rainbow) trout fishing, rafting, tramping and deer hunting. Below the Whanawhana Cableway, the lower waters open to a wide braided channel which meets with the Tutaekuri, Clive River and Muddy Creek at Waitangi Estuary, midway between Napier and Hastings, at Clive.

[4]	The Hawke’s Bay Regional Council (Council) and the Royal Forest and Bird Protection Society of New Zealand Incorporated (Forest and Bird) seek orders by consent allowing an appeal against the Environment Court’s recommended Water Conservation (Ngaruroro River) Order (the Recommended Order).

[5]	As Duty Judge, I received a joint memorandum of counsel filed by the Council, as appellant, and Forest and Bird, an interested party to the appeal. The memorandum records an agreement reached between those two entities in relation to the question raised in the Council’s appeal. As part of the agreement reached, those entities ask

2	Section 199(1).
3	Re Ngā Kaitiaki o Te Awa o Ngaruroro [2022] NZEnvC 227 (Interim Report). Since the filing of the appeal, the Environment Court has issued a final report dated 5 May 2023 attaching a revised Recommended Order (Final Report): Re Ngā Kaitiaki o Te Awa o Ngaruroro [2023] NZEnvC 081 (Final Report).

this Court to allow the appeal by consent in relation to an aspect of the Recommended Order.

[6]	The appeal was filed solely in relation to the definition of “damming” in relation to the lower Ngaruroro River. Apart from the Council and Forest and Bird, two other parties, Horticulture New Zealand and Ngā Kaitiaki o Te Awa o Ngaruroro, were initially involved in the appeal but withdrew. The Council and Forest and Bird, have agreed that the Environment Court’s Interim Report contained errors of law regarding the definition of “damming”. The parties have proposed an alternative definition, which they say is consistent with the factual findings of the Environment Court, and which they say should be substituted by this Court.

[7]	The current definition of “damming” in the Recommended Order is:

damming means the artificial impounding of all or part of the natural flow of any water, including but not limited to circumstances involving:

1.	an associated temporary or permanent structure, or:

2.	any intake or diversion structure, structure in the river bed, or modification of the river bed, that impedes the passage of fish or navigation by personal watercraft.

[8]	The primary feature of the amended definition of “damming” sought in the appeal is that it distinguishes between the upper Ngaruroro River and the lower Ngaruroro River in respect of what constitutes damming. This is based on a distinction in the characteristics, features or values that are considered outstanding in the upper or lower waters of the River respectively. Despite the distinction now claimed by the Council and Forest and Bird, the Environment Court found that there was a need to restrict damming on the mainstem of the upper and lower River equally, to protect outstanding values.

[9]	The Environment Court recommends restricting damming in the upper River to protect amenity and intrinsic values, habitat for rainbow trout, angling amenity and recreation, whitewater rafting and kayaking amenity and recreation, and wild and scenic characteristics. By contrast, the Environment Court’s recommended

restrictions on damming in the lower River are to protect outstanding birdlife in the lower river.4

[10]	Despite the findings that different values exist in respect of each part of the River, the Court imposed a standard restriction in cl 8 of the Recommended Order on the damming of waters in the upper and lower Ngaruroro River, as follows:

No resource consent may be granted, or rule included in a regional plan authorising the damming of the upper or lower Ngaruroro waters.

[11]	When read with cl 8, the broad definition of damming (at [7] above) would restrict any artificial impounding of the natural flow of water, including structures or modifications of the new river bed, impeding the passage of fish or navigation by personal watercraft in the lower River, despite the Environment Court’s express findings that indigenous fish habitat (or fish passage) do not qualify as an outstanding value in the upper or lower Ngaruroro River.5 Moreover, the Court made no finding that recreational amenity qualified as an outstanding value in the Lower River.

Questions raised on the appeal

[12]	The Council raised the following questions of law with respect to the definition of “damming” as it applies to the lower Ngaruroro River through cl 8 of the Recommended Order, namely that the Environment Court:

(a)	took into account irrelevant considerations, specifically the need to provide for passage of fish or navigation by personal watercraft (First Error of Law);

(b)	failed to take into account the following relevant considerations:

(i)	findings the Court made that the habitat and contribution to habitat for indigenous fish in lower Ngaruroro waters were not outstanding; and

4	Interim Report, above n 3, at [187].
5	At [151].

(ii)	that recognition and protection of jetboating, kayaking, rafting amenity and recreation values were not sought by the applicants or any other submitter in the lower Ngaruroro River.

(Second Error of Law)

(c)	adopted a definition of “damming” that was based on an evident logical fallacy because the definition does not reflect the reasoning in the Interim Report (Third Error of Law);

(d)	came to a conclusion which, on the evidence, it could not reasonably have come because the definition does not reflect the reasoning in the Interim Report (Fourth Error of Law); and

(e)	made an unreasonable decision by referring to fish passage and personal watercraft in the definition of “damming” when reference to those matters was unsupported by the evidence and findings made (Fifth Error of Law).

[13]	In filing the Appeal, the Council sought an order from the High Court amending the definition of “damming”, or alternatively, an order sending the matter back to the Environment Court to reconsider the definition of “damming” in light of the findings of this Court.

[14]	The Council and Forest and Bird have agreed that the Environment Court made the above errors of law. To resolve the agreed errors of law, the Council and Forest and Bird agree that the definition of “damming” should be amended to properly reflect the reasoning of the Environment Court’s Interim Report. The Council and Forest and Bird seek an order from the High Court amending the definition of damming in the Recommended Order. The proposed amended definition they seek is set out below (deleted text in strikethrough, new text underlined):6

6	As pictured in the attached map, the waters identified in Schedules 1A and 1B correspond with the upper Ngaruroro River and the waters identified in Schedule 2 correspond with the lower Ngaruroro River.

damming means:

1.	 in the waters identified in Schedule 1A and Schedule 1B, the artificial impounding of all or part of the natural flow of any water, including but not limited to circumstances involving:

 1a.	an associated temporary or permanent structure, or:

 2b. any intake or diversion structure, structure in the river bed, or modification of the river bed, that impedes the passage of fish or navigation by personal watercraft.;

2.	 in the waters identified in Schedule 2, the artificial impounding of water
 associated with temporary or permanent structures that extend greater
 than 20 metres into the bed of the river.

[15]	The Environment Court’s Final Report records the Council’s attempt to have the Environment Court amend the definition of “damming” in the Interim Report to better reflect the Court’s findings in that Report.

[16]	At [17] of its Final Report, the Environment Court records the Council’s submission that the Court did not make a finding of “outstandingness” in relation to the passage of fish or personal watercraft in the lower river. The Court records that at that stage Forest and Bird opposed the Council’s request to amend the definition of “damming”.

[17]	The Environment Court declined to make the amendment proposed by the Council, considering it lacked merit. The Environment Court identified paragraphs in its Interim Report which it said supported the definition in the draft Order.7 The Court also noted that planners, including those advising the Council and Forest and Bird, put forward the definition in the draft Order in their joint witness statement. Moreover, the Court noted that the Council had not raised issues with the definition of “damming” contained in the Forest and Bird version of the draft Order provided to the Court. The Court expressed various criticisms of the amendment proposed by the Council. The Court also noted:8
A different interpretation of the definition is that it expands on elements that would be commonly understood as artificially impounding the natural flow rather than being directed at the values of the water body.

7	Final Report at [21].
8	At [21](e).

[18]	The Court also noted that the upper Ngaruroro River did not have outstanding indigenous fish values but there was no suggestion from the Council that the definition needed to be amended in respect of the upper River.

My assessment

[19]	I accept that the parties have identified various errors in respect of the definition of “damming” in the Recommended Order.

[20]	First, I accept the definition of “damming” in the Recommended Order strongly suggests the Environment Court may have taken into account an irrelevant consideration, namely providing for passage of fish or navigation by personal watercraft in the lower Ngaruroro River. This is problematic because Environment Court did not find that fish passage needed to be protected in the lower Ngaruroro River. Nor did any of the submitters seek restrictions in the lower River for personal watercraft.

[21]	Second, I also accept the Council and Forest and Bird’s submission that it was not open to the Environment Court on the evidence to require the protection of fish passage when considering restrictions that ought to be put in place on the lower Ngaruroro River. Equally, the Environment Court was not well placed to consider amenity values on the lower Ngaruroro River, as no submitters had made reference to such amenity values and therefore, there was no evidence regarding amenity values available to the Environment Court to consider.

[22]	Therefore, the fact the Environment Court included reference to fish passage in the definition of damming insofar as it applies to the lower Ngaruroro River strongly suggests that the Court took into account irrelevant matters, and failed to take into account relevant matters (its earlier findings).

[23]	Third, in circumstances where the special tribunal did not recommend the recognition and protection of jetboating, kayaking, rafting amenity and recreation values with respect to the lower Ngaruroro River, and no submitter before the Environment Court sought such recognition and protection, there was no evidential

foundation for the inclusion of reference to navigation by personal watercraft in the definition of damming.

[24]	Accordingly, I agree with the Council and Forest and Bird that the definition of “damming” in the Recommended Order should be set aside.

[25]	However, I have reservations about whether this Court has adequate information upon which to determine what the correct replacement recommended definition of “damming” should be.

Replacement definition of “damming”

[26]	The Council and Forest and Bird have set out a proposed amendment to the definition of “damming” in their joint memorandum, as set out above at [14]. They submit this definition would distinguish the lower and upper Ngaruroro River to allow different values to be protected as appropriate in each part of the River. The proposed definition of “damming” for the lower Ngaruroro River would, it is submitted, place a limit on how far into the river a structure can extend. This would allow the definition to be clear and objective without being tied to values that were not found to exist by the Environment Court.

[27]	In their proposed definition, the Council and Forest and Bird include an extension distance limit for structures of 20 metres in respect of the lower River. The Council and Forest and Bird submit this number was agreed by the Parties with reference to existing consents and structures in the lower Ngaruroro River, and how far these structures extend into the River. Further, the Council and Forest and Bird considered the evidence of the nature of the lower Ngaruroro River, which is a wide, braided river system. The Council and Forest and Bird submit that a 20 metre structure would be a minimal intrusion.

Court’s jurisdiction

[28]	Rule 20.19 of the High Court Rules 2016 and ss 300–307 of the Resource Management Act set out the Court's jurisdiction to determine this appeal.

[29]	Rule 20.19(1) provides that the Court may, after hearing an appeal, do any one or more of the following:

(a)	make any decision it thinks should have been made:

(b)	direct the decision-maker—

(i)	to rehear the proceedings concerned; or

(ii)	to consider or determine (whether for the first time or again) any matters the court directs; or

(iii)	to enter judgment for any party to the proceedings the court directs:

(c)	make any order the court thinks just, including any order as to costs.

[30]	In the present case, rather than remitting the matter back to the Environment Court, the Council and Forest and Bird request that this Court amends the definition of damming in the Recommended Order, under its power to substitute its decision for that of the Environment Court.

[31]	The Council and Forest and Bird submit that such an approach has been endorsed by the High Court on appeals in relation to the Canterbury Land and Water Regional Plan,9 the Christchurch District Plan,10 the Auckland Unitary Plan,11 and the Canterbury Air Regional Plan.12

[32]	The Council and Forest and Bird submit that, on the basis of these authorities, the Court should exercise its power under r 20.19 of the High Court Rules to amend the definition of “damming” in the Recommended Order, as set out above.

9	Royal Forest and Bird Protection Society of New Zealand Inc v Canterbury Regional Council [2015] NZHC 3013 at [3]; Ellesmere Sustainable Agriculture Inc v Canterbury Regional Council [2015] NZHC 3011 at [2]; and Combined Canterbury Provinces, Federated Farmers of New Zealand Incorporated v Canterbury Regional Council [2016] NZHC 1965 at [8]–[11].
10 Royal Forest and Bird Protection Society of New Zealand Incorporated v Christchurch City Council [2017] NZHC 669; and Te Runanga o Ngai Tahu v Christchurch City Council [2017] NZHC 541.
11	For example, Ancona Properties Limited v Auckland Council [2017] NZHC 594.
12 Canterbury Aggregate Producers Group v Canterbury Regional Council HC Christchurch CIV- 2016-409-001031, 9 June 2017.

[33]	The Council and Forest and Bird submit that the following principles from the cases cited above apply to the present case and justify the Court taking this approach in terms of remedy:

(a)	the orders sought by consent address the questions raised in the appeal;

(b)	the proposal to settle the appeal by making the proposed amendments represents a just, speedy and inexpensive way to determine this proceeding;

(c)	agreement has been reached on the resolution by the Council and Forest and Bird; and

(d)	the proposed amendment is consistent with the purpose and principles of the Resource Management Act, including in particular, Part 2.

[34]	However, counsel properly note Whata J’s warning in Meridian Energy Limited v Canterbury Regional Council, that there should not be an expectation that, in every case, consent orders are suitable for approval via appeals to the High Court.13

[35]	Indeed, I have four reservations about amending the definition of “damming” as the Council and Forest and Bird propose.

[36]	First, I am concerned that the process leading to the Recommended Order in the present case was distinctly different from the circumstances in the cases invoked in support of this remedy, in particular:

(a)	In the cases cited, the Court drew attention to the fact that a wide cross- section of relevant participants, and of the community, were in favour of the amendments proposed.

(b)	The scope of amendments sought in those cases was generally narrow. By contrast, in the present case the definition of “damming” proposed

13	Meridian Energy Limited v Canterbury Regional Council HC Christchurch CIV 2010-409-2604, 23 May 2011.

may have consequences for the extent to which there is river loss, which may also lead to consequences for amenity and wildlife habitats that this Court may not be as well placed to assess as the Environment Court will be.

[37]	Second, I am concerned that the definition of “damming” which the Council and Forest and Bird now seek to be substituted by this Court is different from the definition that the Council put forward to the Environment Court as a response to its Initial Report.

[38]	Third, a specific definition of “damming” was not contained in the notice of appeal and I cannot be certain that the definition proposed by the Council and Forest and Bird would be consistent with the purpose and principles of the Resource Management Act.

[39]	Fourth, settling on an appropriate definition of “damming” has a factual dimension that, in my view, takes the remedy for the appeal outside the proper boundaries of an appeal on a question of law under s 299 of the Resource Management Act. The Environment Court will be better able to determine whether additional evidence is required and, if so, whether there should be limits on the form that evidence should take. Then, that Court will be able to bring its planning expertise to bear on what is the correct definition. For example, why should the length of structures in the lower River be limited to 20 metres? Why not 25 metres? Why should the limit not be 10 metres? Should any damming structures be allowed at all? These sort of questions deserve broader input by the parties (and any additional parties the Environment Court permits to join the proceeding), admission of further evidence as appropriate and then consideration by the Environment Court.

Conclusion

[40]	Accordingly, I allow the appeal, and set aside the definition of “damming” in the Recommended Order of the Environment Court. However, I am not prepared to substitute the definition proposed by the Council and Forest and Bird. Rather, I remit the matter back to the Environment Court for it to rehear and reconsider that part of

the recommended Water Conservation Order pertaining to the definition of “damming”.

[41]	At the telephone conference on 30 August 2024, I offered counsel the opportunity to indicate any procedural directions they might wish this Court to make for the benefit of the Environment Court in recommending the process of reconsidering the definition of “damming”. The Council and Forest and Bird helpfully filed a joint memorandum seeking the following directions with respect to the Environment Court’s reconsideration of the definition of “damming”:

(a)	no fresh evidence is to be adduced in determining this matter, save any relevant expert evidence filed for the purpose of informing the drafting of the definition of “damming” insofar as it applies to the lower Ngaruroro River (as identified in Schedule 2 of the Recommended Order);

(b)	parties with standing, and an interest in this issue, are entitled to make fresh legal submissions to the Environment Court, if they consider that necessary; and

(c)	the Environment Court is then to reconsider the issue in light of this judgment.

[42]	I see merit in these directions. However, on reflection, I consider it is more appropriate to allow the Environment Court to consider whether to make directions concerning its own process for reconsideration of the definition of “damming”, including whether to adopt the above directions suggested by the Council and Forest and Bird. That Court will be best placed to assess whether to limit the scope of evidence to be adduced in the manner suggested by the Council and Forest and Bird.

Result

[43]	The appeal is allowed. The definition of “damming” in the Environment Court’s recommended Water Conservation (Ngaruroro River) Order is set aside. The

Environment Court is directed to reconsider that definition, adopting a process that it considers appropriate in accordance with pt 9 of the Resource Management Act.

Costs

[44]	The Council and Forest and Bird agree that no issues as to costs arise in respect of the appeal and so, accordingly, I make no order as to costs.

McHerron J

Solicitors:
Wynn Williams, Christchurch for Appellant