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In a first-of-its-kind move, the council decided its proposed regional policy statement was the kind of planning document that suited a new, streamlined, freshwater planning process introduced through changes to the Resource Management Act last year.
In order to have its planning document qualify for the new process, the council decided its regional policy statement was a ‘‘freshwater planning instrument’’ in its entirety.
That decision was then questioned by some, including Forest & Bird.
So, this week, the council took its case to the High Court at Dunedin to have its decision tested.
In a letter to Environment Minister David Parker on the matter, council chairman Andrew Noone said if the High Court did not back the council’s stance, the council would have to pause its process at whatever stage it stood and withdraw its regional policy statement.
The council would then need to publicly notify its regional policy statement a second time.
It might need to repeat its pre-notification consultation, he said.
The delays that a decision against the council would create could mean the council would not have its policy framework in place before the time Mr Parker said it needed to have its next planning document, Otago’s land and water plan, notified, at the end of 2023, he said.
Mr Parker said he was aware the council was testing a new process.
Because that could result in unexpected challenges, the ministry would contribute ‘‘some financial backing’’ for the court costs.
The ministry’s financial contribution was yet to be determined.
However, Mr Parker said he would be taking advice on whether the court’s decision would have national significance.
Also, he said he might yet join the proceedings.
Nonetheless, he would be following the case to consider whether clarifications to the freshwater planning process were needed.
Forest & Bird said there were many provisions in a regional policy statement that had little to do with freshwater.
The council’s regional policy statement sets out the framework and priorities for all resource management across Otago.
The new rules for the freshwater planning process made it clear the streamlined process was only for freshwater-related matters, Forest & Bird said.
Putting the proposed regional policy statement through the new freshwater planning process risked a successful legal challenge by another party at the end of the process.
That would mean new rules to improve the environment could further be delayed, it said.
Forest & Bird Otago Southland regional conservation manager Rick Zwaan said this week the environmental organisation and the council had been working towards the court proceedings since before the council notified its proposed regional policy statement in June.
The court process would help make sure whatever process the council followed set it on firm legal ground, Mr Zwaan said.
Forest & Bird’s position remained that the council had made the wrong decision.