Case arises from concerns on preservation and protection of Southland's wetlands
The High Court has declared that the Southland Regional Council failed to comply with ss. 35(2)(b) and 35(2A) of the Resource Management Act 1991 (RMA) relating to proposed and operative plans concerning Southland’s wetlands.
The Environmental Law Initiative (ELI) had concerns about the preservation and protection of these wetlands, which significantly degraded in recent decades.
The ELI thus filed a judicial review application challenging the council’s approach to its obligations to monitor, report, and act on monitoring under the RMA. It requested declarations that the council failed to comply with its statutory duties and mandamus orders seeking compliance.
In the first cause of action, the ELI alleged that the council failed to comply with its statutory duties to monitor the effectiveness and efficiency of the policies, rules, or other methods in its plan under s. 35(2)(b) of the RMA and to publish a review of its monitoring results at least once every five years under s. 35(2A) of the RMA.
As for the second cause of action, the ELI claimed that the council failed to comply with its duties to monitor the state of the environment regarding wetlands and wetland drainage in Southland to the extent appropriate to enable it to effectively carry out its RMA functions under s. 35(2)(a) of the RMA.
The second cause of action also included an allegation that the council failed to monitor and thus failed to take appropriate action or to consider what action it should take in line with its obligation under s. 35(2) of the RMA.
In Environmental Law Initiative v Environment Southland [2025] NZHC 191, the High Court of New Zealand declared that the council failed to monitor the state of the environment regarding wetlands and wetland drainage under s. 35(2)(a) since 2018 and failed to take appropriate action when necessary as required by s. 35(2).
The court’s decision also declared that s. 35(2)(b) required a local authority to monitor the effectiveness and efficiency of policies, rules, or other methods in any wholly or partly operative plan to the extent that it was operative.
However, the court found it inappropriate to order the council to comply with:
The court also refused to declare that the preparation of a s. 32 report to support the notification of a plan change did not substitute its monitoring obligations under s. 35(2)(b) or its reporting obligations under s. 35(2A).
About the first cause of action, the court noted that the ELI sought orders in the nature of mandamus or orders to secure the performance of public duties. The court said that it should refuse these orders if it found an equally beneficial, convenient, and effective remedy or if it determined that mandamus would not be a practically effective remedy.
As for the second cause of action, the court found it appropriate to declare that the council failed to comply with its legal duties under s. 35(2)(a) since 2018 and s. 35(2). However, the court found it unnecessary and inappropriate to issue an order directing the council’s compliance.
