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Notice of Appeal by Fonterra Co-Operative Group Limited Against

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Notice of Appeal by Fonterra Co-Operative Group Limited Against In the Environment Court at Christchurch ENV-2013-CHC- under: the Resource Management Act 1991 in the matter of: an appeal against the decision of the Otago Regional Council on PC6A (Water Quality) to the Regional Plan: Water for Otago under Clause 14(1) of the First Schedule of the Act between: Fonterra Co-operative Group Limited Appellant and: Otago Regional Council Respondent Notice of appeal by Fonterra Co-operative Group Limited against the decision of the Otago Regional Council on Plan Change 6A (Water Quality) to the Regional Plan: Water for Otago Dated: 5 June 2013 REFERENCE: John Hassan ([email protected]) Luke Hinchey ([email protected]) 1 Form 7 Notice of appeal by Fonterra Co-operative Group Limited against the decision of the Otago Regional Council on Plan Change 6A (Water Quality) to the Regional Plan: Water for Otago Clause 14(1) of Schedule 1, Resource Management Act 1991 To the Registrar Environment Court Christchurch 1 Fonterra Co-operative Group Limited (Fonterra) appeals against a decision of the Otago Regional Council (ORC) on Plan Change 6A (Water Quality) (PC6A) to the Regional Plan: Water for Otago (decision). 2 Fonterra made submissions and further submissions on that plan change. 3 Fonterra is not a trade competitor for the purposes of section 308D of the Resource Management Act 1991 (RMA). 4 Fonterra received notice of the decision on 23 April 2013. THE PARTS OF THE DECISION FONTERRA IS APPEALING 5 Fonterra is appealing the ORC‟s decision to reject or accept in part Fonterra‟s submission in respect of the following provisions of PC6A: 5.1 Objectives 7.A.1-7.A.3; 5.2 Policies 7.B.1-7.B.4; 5.3 Policies 7.D.2 –7.D.7; 5.4 Prohibited activity Rules 12.C.0.1-12.C.0.5; 5.5 Permitted activity Rules 12.C.1.1, 12.C.1.3; 5.6 Restricted discretionary activity Rules 12.C.2.1, 12.C.2.3 and 12.C.2.4; 5.7 Permitted activity Rules 13.5.1.8A and 13.5.1.8B; and 5.8 Schedules 15 (Tables 15.1 and 15.2) and 16. OVERALL REASONS FOR THE APPEAL 6 Fonterra supports the sustainable management of water and also supports the use of regulatory and non-regulatory measures that maintain or enhance water quality and ensure efficient water use. However, it considers that the regulatory methods imposed pursuant to PC6A are not scientifically based or 100062301/1743629.8 2 properly balanced with reference to environmental, economic, social and cultural considerations. 7 Fonterra considers overall in respect of the provisions identified above, that the decision: 7.1 Is inappropriate and/or unnecessary; 7.2 Will not promote the sustainable management of natural and physical resources; 7.3 Will not promote the efficient use and development of natural and physical resources; 7.4 Is contrary to good resource management practice; 7.5 Does not comply with the requirements of section 32 of the RMA, particularly in that the provisions are not the most appropriate means of achieving the relevant plan objectives having regard to their efficiency and effectiveness and taking into account benefits, costs and risks; 7.6 Does not have proper regard to the requirements of, and does not give effect to, the National Policy Statement for Freshwater Management 2011 (NPS-FM); 7.7 Is inconsistent with the Otago Regional Policy Statement (ORPS); and 7.8 Is otherwise inconsistent with the relevant provisions of the Resource Management Act 1991 (RMA), including the purposes and principles of the RMA under Part 2. GENERAL GROUNDS OF APPEAL 8 Fonterra‟s opposes the provisions identified above in that: 8.1 The objectives are unclear and insufficiently directive of outcomes. This gives rise to the following further issues: (a) It is difficult to determine whether the other provisions of PC6A are the most appropriate means of achieving the relevant objectives having regard to their efficiency and effectiveness and taking into account benefits, costs and risks; and (b) Disputes and uncertainty of interpretation are likely when the objectives are considered at resource application consent stage. 8.2 PC6A‟s prohibited activity regime is vague and uncertain and would capture activities which it should not capture. 100062301/1743629.8 3 8.3 There are other areas of drafting ambiguity in the policies and rules within PC6A which could lead to later uncertainty and disputes; 8.4 PC6A sets unrealistic expectations in terms of discharge consent duration requirements through the use of permitted activity thresholds as targets; 8.5 The plan change fails to properly consider the efficiency and effectiveness of implementation including the practicalities of farmers achieving the water quality characteristics and standards in Schedule 15 and the nitrogen limits prescribed in Rule 12.C.1.3 and Schedule 16; 8.6 PC6A contains arbitrary limits and standards. Schedules 15 and 16 in particular are not sufficiently supported by balanced scientific views, economic and social considerations, and practical dimensions; 8.7 PC6A misinterprets the NPS-FM in assuming water quality must be kept at least at its current state across all water quality characteristics and standards in order to be maintained; and 8.8 The region wide approach to water quality using a range of water quality parameters fails to have regard to specific catchments and water-bodies and their local characteristics and values. SPECIFIC REASONS FOR THE APPEAL 9 Without limiting the generality of the overall reasons and grounds for the appeal outlined in the paragraphs above, the table in Appendix A contains more specific appeal points and relief sought. FONTERRA SEEKS THE FOLLOWING RELIEF 10 Fonterra notes that the decision makes considerable changes to the notified version of PC6A. The decision does not make clear what submissions it relies upon to make the various changes. It has therefore been difficult to assess how the decision responds to Fonterra‟s submission points. In those circumstances: 10.1 Fonterra reserves the right to raise matters of legal scope arising from the decision; 10.2 Generally, Fonterra seeks relief which is consistent with its original submission; 10.3 Alternatively it seeks the relief set out in the table in Appendix A; and 10.4 It also seeks such further, alternative or consequential relief to address Fonterra‟s concerns. ATTACHED DOCUMENTS 11 The following documents* are attached to this notice: 100062301/1743629.8 4 11.1 a copy of Fonterra‟s submission and further submission (with copies of the submissions supported and opposed by its further submission); 11.2 a copy of the ORC‟s decision; and 11.3 a list of names and addresses of persons to be served with a copy of this notice. Signed for and on behalf of Fonterra Co-operative Group Limited by its solicitors and authorised agents Chapman Tripp __________________________ Garth Gallaway Partner 5 June 2013 Address for service of appellant: Chapman Tripp Level 14, 10 Customhouse Quay, Wellington PO Box 993, Wellington 6140 Telephone: +64 4 499 5999 Facsimile: +64 4 472 7111 Contact person: Luke Hinchey, Senior Associate Email address: [email protected] Advice to recipients of copy of notice How to become party to proceedings You may be a party to the appeal if you made a submission or a further submission on the matter of this appeal and you lodge a notice of your wish to be a party to the proceedings (in form 33) with the Environment Court within 15 working days after the period for lodging a notice of appeal ends. Your right to be a party to the proceedings in the court may be limited by the trade competition provisions in section 274(1) and Part 11A of the Resource Management Act 1991. You may apply to the Environment Court under section 281 of the Resource Management Act 1991 for a waiver of the above timing requirements (see form 38). *How to obtain copies of documents relating to appeal The copy of this notice served on you does not attach a copy of the appellant‟s submission and the decision appealed. These documents may be obtained, on request, from the appellant. 100062301/1743629.8 5 Advice If you have any questions about this notice, contact the Environment Court in Auckland, Wellington, or Christchurch. 100062301/1743629.8 6 APPENDIX A – TABLE OF PROVISIONS APPEALED, GROUNDS, AND RELIEF SOUGHT Relevant Objectives 7.A.1 - 7.A.3 provisions Summary - Fonterra sought that: amendment 1. 7.A.1- the objective be changed to one that more clearly specifies the numerical water quality objectives sought and that it be specifically linked to Schedule 15. sought in submission 2. 7.A.2 - the objective be deleted as it largely restates the Council‟s functions set out in s 30(1)(c)(ii) of the RMA, and because it did not add any additional guidance or framework than already provided in the RMA and the Otago Regional Policy Statement. 3. 7.A.3 - Fonterra opposed this objective and sought that it be deleted as it was uncertain, not measurable and did not add any additional guidance or framework than already provided in the RMA and the ORPS. Council’s decision Specific reasons for the Appeal Relief sought The ORC decision amended the objectives as follows: Fonterra opposes the Objectives for the following reasons: 1. The objectives be amended to provide more certainty in terms of the outcomes sought as follows: 7.5.17.A.12 To enable the discharge of water or 1. The objectives do not clearly specify cultural, contaminants to water or land, in a way that maintains economic, environmental or social outcome(s).
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