In its recent decision of Royal Forest and Bird Protection Society of New Zealand Inc v Waitaki District Council [2012] NZHC 2096, the High Court considered an application for judicial review by the Royal Forest and Bird Protection Society of New Zealand Inc (F&B). F&B challenged the validity of a certificate of compliance (CoC) granted by the Waitaki District Council (Council) to Five Rivers Ltd (Five Rivers) under section 139 of the Resource Management Act 1991 (RMA).

The CoC purported to certify a number of farming activities as permitted activities, including crop production and arable farming, irrigation and ancillary building construction. F&B argued that the Council failed to assess whether those activities were permitted activities in terms of the District Plan rules controlling indigenous vegetation clearance.

The CoC was expressed to be subject to a condition that "the conditions in rules 4.4 and 4.5 of the Plan are complied with", which included Site Development Standard 4.4.8, which set controls for the clearance of indigenous vegetation. Five River stated in its application that it would comply with Rule 4.4.8.

F&B argued that the Council had insufficient information to enable it to be satisfied that Rule 4.4.8 would be complied with and that further inquiries should have been made before the CoC was issued.

Having examined section 139 and the corresponding case authorities, the Court concluded that the Council had acted unlawfully in issuing the conditional CoC to Five Rivers. It stated that, "having regard to the nature and scale of the proposed activities and the scale of possible indigenous vegetation suggested by the plans, it was incumbent on the Council to do more than just rely on the bare assertion of the applicant". The Council was required to satisfy itself as to what the activities actually involved, including whether any vegetation clearance was proposed and, if so, whether it would breach Rule 4.4.8.

In order to do this, the Court found that the Council should have required a qualitative botanical survey detailing the indigenous vegetation present. It also needed to assess:

  • If crop production and arable farming activities included clearance of indigenous vegetation, how these activities complied with Rule 4.4.8;
  • The scale of ancillary buildings and any evidence that demonstrated that the construction of these buildings would not clear indigenous vegetation beyond the thresholds in Rule 4.4.8; and
  • Whether there was any proof that clearance beyond the thresholds specified in Rule 4.4.8 was in accordance with an exemption relating to track maintenance.

Accordingly, F&B's application for judicial review was granted, and the Court made a declaration that the Council's decision to grant the CoC was invalid and made an order quashing that decision.