A setback in the High Court could delay the Otago Regional Council’s anticipated fit-for-purpose freshwater plans.
However, chairman Andrew Noone said it was too soon to know the effect of Justice Gerald Nation’s recent ruling.
Justice Nation last week struck down a plan by the council to advance its entire proposed regional policy statement through a new accelerated freshwater hearings process.
Notifying the regional statement in June last year, and then the land and water plan next year, are major milestones the council agreed to as it works to meet recommendations from Environment Minister David Parker after a 2019 investigation.
The regional statement is a foundation document for the council’s forthcoming land and water plan, and it was supposed to be operative before the land and water plan was notified.
Cr Noone said yesterday it was unclear whether Justice Nation’s ruling would affect the council’s land and water plan work presently under way.
"At this stage it is too early to say, but that is one of the work programmes that staff are working through to fully understand, and then communicate, any impacts."
The council appreciated the "considered and well-reasoned" decision from the court, he said.
It had set out the process of notifying two separate parts of the proposed regional statement.
The decision had provided "helpful clarity" around the new freshwater process and would be useful for all regional councils as they worked through implementing the new national policy statement for freshwater management, he said.
Justice Nation ruled the council had used too broad a definition of "relates to freshwater" when it said its entire regional statement was appropriate for the new process.
The parts of the regional statement appropriate for the new process would be only those issues that addressed the decline in freshwater quality that the new process was created for, he said.
The case was brought to court by Forest & Bird, which said it brought its concerns to the council before the regional statement was notified in June last year.
Nevertheless, at the meeting when councillors approved notification, council staff advice was that the regional statement as a whole was suited for the process for several reasons, including the "underpinning philosophy" of the Resource Management Act that demanded an integrated approach to the management of natural and physical resources.
Cr Gretchen Robertson and Cr Noone both spoke in support of the approach at the time.
"Freshwater is intertwined through pretty much all of the chapters and trying to pick out which bits are freshwater, and which bits aren’t, makes no sense," Cr Robertson said.
Yesterday, she called the ruling "groundbreaking".
"We now know water can be separated from catchments’ activities at times.
"That wasn't intuitively obvious or supported by the national policy for freshwater's compulsory policies on integrated ‘mountains to the sea' approaches."
Cr Kate Wilson said councillors were aware there was an inherent risk of a legal challenge.
However, she did not know Forest & Bird had advised the council they would take action until after submissions were "well open".
"New legislation always brings up laws being tested.
"My one regret is that ORC ratepayers, as the council first out of the blocks so to speak, will pay for these teething lessons and that is unfortunate."
A spokesman for Mr Parker said the minister was waiting until after he had spoken to the council further before he commented.
