ALIL Consent Case

ELI has successfully overturned the granting of a nitrogen discharge consent to a major irrigation scheme 

The High Court has found that Environment Canterbury (ECan) unlawfully granted a resource consent for the discharge of nitrogen and other contaminants to Ashburton Lyndhurst Irrigation Ltd (ALIL).

In a High Court judgment delivered on Wednesday 20 March, Justice Mander found that the decision to grant the discharge consent breached the statutory bar to consenting discharges likely to cause significant effects on aquatic life:

"On the Commissioner's own findings, it appears indisputable there will likely be continuing significant adverse effects on aquatic life for the time being. I do not consider the grant of a discharge consent on the basis of the conditions imposed, albeit in anticipation that over time there will be a reduction in nitrogen leaching loads and some mitigation of the adverse effects that are likely to continue from the current activity, avoids breaching the s107(1) prohibition.”

Based on this finding the judge found that the decision to grant the resource consent was based on a material error of law.

Justice Mander also found that the decisionmaker didn’t properly consider coastal policy, including the NZ Coastal Policy Statement (NZCPS) and the Regional Coastal Environment Plan (RCEP), despite the pollution resulting from the consent affecting the coast:

"Because the past and current land use practices of the irrigation scheme were found by the Commissioner to have contributed to significant adverse cumulative effects on the lower reaches of the Hakatere/Ashburton River and hāpua, and specifically on the aquatic life of that particular area of the coastal environment, it was incumbent on the decisionmaker to consider the relevant provisions of the NZCPS and RCEP."

The failure to take into account or have regard to these relevant provisions was also found to be an error of law.

ECan's decision to grant the resource consent has been set aside by the High Court and ALIL's application has been sent back to the Council for reconsideration.

Judicial review of the ALIL consent

The resource consent had allowed for the discharge of nitrogen to 177,000 ha of the Canterbury Plains for a period of 10 years. The consent was granted despite an explicit acknowledgement that a previous consent had already led to significant adverse effects on the aquatic life in the Hakatere/Ashburton River Mouth and its hāpua.

The Environmental Law Initiative (ELI) successfully applied for a judicial review of this resource consent decision on two grounds:

(1) That the decision unlawfully breached a provision in the RMA (in s 107(1)) which prevents Councils granting discharge consents that are likely to have significant adverse effects on aquatic life

(2) That the decision maker failed to consider relevant provisions of the New Zealand Coastal Policy Statement and Regional Coastal Environment Plan - including policies to 'avoid' adverse effects on indigenous biodiversity and natural character.

ELI was unsuccessful on a third ground which challenged the decision not to publicly notify the consent application.

A significant legal victory for freshwater

ELI’s Director of Research and Legal, Matt Hall said:

"This ruling is hugely significant for freshwater management, both in Canterbury and around Aotearoa New Zealand. The Court has upheld the clear prohibition on the granting of discharge consents that are likely to have significant adverse effects on aquatic life. The Court has also made it clear that where upstream discharges end up causing problems in the coastal environment, the relevant coastal policies apply."

Hall added that:

"ECan’s role is to protect the quality of water, including through managing land use and associated discharges. ELI’s win in this case raises serious questions about how ECan makes consent decisions relating to freshwater pollution. ELI will be looking at other consents, both in Canterbury and around the country to check whether they have also breached the clear prohibition in s 107 of the RMA. We call on ECan to immediately review its discharge consents as a matter of urgency. “  

"This ruling also raises serious questions about ECan's approach to the management of pollution ending up in the coastal environment. ECan has clearly ignored key coastal policies in its consent decision making, despite recognising that upstream discharges lead to effects at the coast. We therefore also call on ECan to immediately review its use of coastal policies in consent decision making."

The full text of the judgment is available below.

Banner photo by Tom Ackroyd, Aerial view of the Ashburton River North Branch, CC BY-SA 4.0 <https://creativecommons.org/licenses/by-sa/4.0>, via Wikimedia Commons.