Environmental Law Initiative - Judicial review of plan rule

Find out about the Environmental Law Initiative’s application for judicial review of our decision to include rule 5.63 in the Canterbury Land and Water Regional Plan.

This complex public law case challenges the finality of resource management plan making, and the long-recognised concept that once a plan is made operative, “People and communities can order their lives under it with some assurance”*

Current status: The High Court heard the case on 12 and 13 May, 2025, with a decision pending.

What is being reviewed

Environmental Law Initiative (ELI) claims that we failed to consider and apply section 70 of the Resource Management Act 1991 (RMA), before deciding to include permitted activity rule 5.63 in the Canterbury Land and Water Regional Plan (LWRP).

The legal challenge is that the decision to include rule 5.63 was unlawful and ultra vires (outside) our powers under the RMA and based on that error, ELI seeks declarations and an order quashing (removing) the rule.

Our reply to ELI's claim

Our reply is that the LWRP (including rule 5.63) was lawfully made through a publicly notified planning process in accordance with Schedule 1 of the RMA, not a single decision, so section 83 of the RMA provides a statutory ‘bar’ and is a complete answer to this claim.

Section 83 of the RMA reflects the requirement of finality in plan making and provides:

“A policy statement or plan that is held out by a local authority as being operative shall be deemed to have been prepared and approved in accordance with Schedule 1 and shall not be challenged except by an application for an enforcement order under section 316(3) of the RMA.”

We say ELI is out of time to challenge the LWRP’s compliance because section 316 of the RMA provides that an application must be brought no later than three months after the date on which the plan becomes operative. In this case, 1 September 2015.

We further say:

  • The requirements of section 70 were met and considered holistically across the LWRP.
  • Documents and evidence produced at notification and throughout the hearing process confirm that the members of the Independent Hearing Panel were aware of the requirements of section 70 in making their recommendations on the LWRP, which were adopted by us as our decision under Schedule 1. 
  • We only need to be successful on one of these grounds, whereas ELI needs to be successful on all of their arguments.

If ELI’s claim is accepted by the court, we ask that the rule should not be quashed (removed) for these reasons:

  • delay, over 10 years since we adopted the LWRP on 5 December 2013
  • prejudice to resource users who rely on the rule (farmers in the Hurunui-Waiau, Kaikōura, Christchurch-West Melton, Banks Peninsula, part of the Ashburton sub-region, and Central Canterbury Alpine Rivers catchments)
  • prejudice to us because we’d have to process resource consents for affected farmers if the rule were removed
  • ratepayers who would meet some costs associated with the sudden influx of resource consent applications.

Judicial review timeline

November 2009 - Canterbury Water Management Strategy (CWMS) framework completed with input from Mayoral Forum, representatives from central government, Te Rūnanga o Ngāi Tahu, water users and environmental interest groups.

February 2010 - The Creech Report (PDF file, 567KB) highlighted freshwater management as the “single most significant issue facing the Canterbury Region”, a “fit for purpose” review of the planning framework concluded that a single regional plan should be developed with region-wide and sub-regional provisions to allocate and manage land and water in an integrated way.

2010 - This recommendation was supported by our Commissioners, appointed to replace elected Councillors under the Environment Canterbury (Temporary Commissioners and Improved Water Management) Act 2010, who called for the development of a ‘second-generation’ plan.

August 2012 - Draft LWRP notified to replace the Natural Resources Regional Plan (the ‘first generation plan'). Commissioners were required to have particular regard to the ‘vision and principles of the CWMS’ in their planning decisions under the Environment Canterbury Act.

2013 - 354 original submissions and 75 further submissions received on the draft LWRP.

2013 - Independent Hearing Panel appointed by Council to hear submissions on draft LWRP and make recommendations.

5 December 2013 - Hearing Panel’s recommendations adopted by Council (RMA clause 10, Schedule 1).

2014 - Nine appeals filed in the High Court against the Council’s decision.

13 August 2015 - Council approves LWRP (RMA Schedule 1).

1 September 2015 - LWRP made operative by Council (RMA clause 20, Schedule 1).

December 2023 - Environmental Law Initiative (ELI) claim filed

12 and 13 May 2025 -  The High Court heard the case, with a decision pending.

Sources and references

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