In recent years the Resource Management Act 1991 (“RMA”) has been synonymous with enforcement and prosecution actions across the rural sector. Some would argue that the RMA ‘stick’ has assisted with a faster rate of change to prevent unacceptable farming practices, particularly in the area of effluent management. However there are many other areas of normal farming practice that are now increasingly the subject of rules that will have a financial and practical impact and could attract the enforcement stick from Councils.
Many farmers in the Waikato River catchment will be aware of the impact of Variation 1 to the Waikato Regional Plan. That is a plan change that will impose rules on the way that land is farmed in order to reduce contamination of the Waikato River and promote improvement in freshwater quality. As part of that plan change, some land use changes, for example conversion to dairying or to horticulture, will be a non-complying activity for which resource consent will be difficult to obtain. The plan change also means that all types of commercial farming will require a resource consent and certain information regarding stocking rates and nutrient loss must be provided to the Regional Council. The rural sector can expect that these types of rules will be rolled out in other districts and regions as Councils give effect to the goals set out in the National Policy Statement for Freshwater Management 2014.
It is important that the rural sector engages in these plan change processes. It is possible to negotiate changes to the way in which rules will affect and apply to farming operations. Usually the people who draft rules aimed at ecological, freshwater or coastal protection are planners and consultants that live and work in urban environments. Neither they nor their landscape or ecology expert advisors will have any practical experience of farming operations or needs. This has been noticeable in the Thames-Coromandel Proposed District Plan appeal process where (for example) controls on the removal of indigenous vegetation and earthworks didn’t take into account the necessary widths for tracks that need a water table alongside and room for heavy vehicles to negotiate sharp corners and steep gradients. The proposed rules originally allowed for track widths consistent with the needs in an urban environment.
Many farmers will be aware of s 10 in the RMA which protects existing uses from changes made to rules in district plans. Essentially an existing use right allows an activity to continue so long as:
- The activity was lawfully established before the new restricting rule took effect;
- It is carried on with the same character, intensity and scale; and
- The activity is not suspended for more than 12 months.
There are many fish-hooks in the s 10 protection as it applies to farming. Is cropping ‘of the same character’ as grazing? Does calf rearing have the same ‘character and intensity’ as grazing? Does the re-grassing of an area of scrubland increase the ‘scale’ of an operation?
There might also be questions about whether the activity is continuous. If native vegetation alongside a track has not been cleared within the past 12 months, has the existing use right permitting that clearance been lost?
The other thing for farmers to remember is that existing uses are only protected against changes to rules in district plans. Many rules in regional plans can take effect immediately that they are notified and the existing use provisions will expire if the activity is discontinued for 6 months in circumstances where a resource consent is not applied for within 6 months of the new rule becoming operative. There is no long term protection of existing uses against changes to regional plan rules.
In the Coromandel area, rural property owners combined to form an association that has fully engaged in the district plan process and has worked cooperatively with Council, Federated Farmers and other parties towards a set of rules that will have less impact on farming practices and will be workable. The process has been time consuming and expensive but will hopefully protect operational farms from onerous compliance and enforcement costs. District and regional plan changes are not exciting; they are time consuming; they are energy sapping; however, these local government processes can be critical to the protection and/or contraction of farming operations. It is unrealistic to expect rural lobby groups to solely address the rules affecting the farming sector in every district and region across the country. Locals need to be involved to support those organisations. For more information regarding the Healthy Rivers Plan Change 1 and the forthcoming Waikato Proposed District Plan process you can contact our RMA team at Harkness Henry.