Justice Gerald Nation has ruled the council was wrong to treat its entire proposed regional policy statement as the kind of planning document that suited a new accelerated freshwater planning process.
Only those policies for managing Otago’s natural and physical resources that dealt directly with freshwater could use the process, introduced in 2020 to address freshwater quality decline, Justice Nation said in his 71-page judgement last week.
"Given the stringent timeframes required by the freshwater planning process, freshwater hearings panels should not be burdened with additional matters that are unrelated or only remotely related to freshwater," he said.
The council is under pressure from Environment Minister David Parker to put fit-for-purpose freshwater management plans in place and had argued freshwater was "woven into [the] fabric" of its proposed regional policy statement.
However, after the council decided to take its regional statement down the fast-tracked path in June last year, Forest & Bird said the council was misusing the new process.
Putting the council’s entire regional policy statement in front of a designated freshwater hearings panel risked a successful legal challenge at the end, the national conservation organisation said last year.
Yesterday, Forest & Bird Otago-Southland regional conservation manager Chelsea McGaw said the High Court decision had validated the group’s concerns.
"Forest & Bird is pleased the Court agreed that it wasn’t appropriate for the Otago Regional Council to artificially shoehorn all wider planning matters — such as coastal and air — into an ‘expedited’ freshwater planning process not tailored to these wider planning matters.
"Had the ORC been successful, it would have created a precedent allowing all regional councils to do the same, so this is a nationally significant outcome," Mrs McGaw said.
The council’s position was supported by Otago iwi.
However, it was challenged by Forest & Bird, four Otago councils, Port Otago, Oceana Gold and two major forestry companies.
For example, Dunedin City Council city development manager Dr Anna Johnson argued the streamlined freshwater planning process would not be a fair process to adequately address issues relating to urban development.
Queenstown Lakes District Council planning policy manager Alyson Hutton said a provision in the proposed regional statement should have to relate to freshwater in a "more than tangential" way for it to be treated as part of a freshwater planning process.
Justice Nation said in essence the Otago Regional Council was seeking a declaration as to how the new processes ought to be interpreted and applied.
He said the council would now have to reconsider and decide which parts of the proposed regional statement related to freshwater.
Costs should lie where they fell, he said.
In a letter to the environment minister in August last year, council chairman Andrew Noone said if the High Court did not agree with its position the council would be required to pause its process (wherever it was at) and withdraw its proposed regional statement.
He said the council would not have an operative regional statement in place ahead of the notification of its land and water plan, due at the end of next year.
The council said it was unable to respond to questions yesterday.
