Implications of Waikato Regional Plan Change 1

The Hearing Panel’s decision on Waikato Regional Plan Change 1 (PC1) will change the way that farming activities operate across the Waikato region with new rules to reduce discharges of nitrogen, phosphorus, sediment and microbial pathogens (key contaminants) into the Waikato and Waipā Rivers. Please see our article providing an overview on PC1.

PC1 introduces new rules and schedules for a wide range of farming activities with minimum standards for farming to be permitted and requiring resource consents where farms can’t meet those standards. PC1 also requires registration of all properties within the Waikato and Waipa River catchments where any type of livestock or horticultural farming occurs.

This article provides a summary of those rules and standards which are likely to create some challenges to landowners/users.

PC1 – New rules

Rule 3.11.4.1 (Permitted activity rule – small and very low intensity farming) provides for very low intensity farming as a permitted activity provided certain conditions are met.  In order to be permitted without a resource consent the following conditions must be met:

1. The property is registered with the Waikato Regional Council as per Schedule A; and
2. Farming is undertaken as per the minimum farming standards in Schedule C; and
3. No commercial vegetable production occurs; and
4. No feedlots or sacrifice paddocks are used on the property; and
5. No more than 5% of the land used for farming is used for cropping, including winter forage crops; and
6. The farming occurs on one property; and
7. The winter stocking rate is less than 12 stock units per hectare, (excluding horses); and
8. No stock above 400kg shall be grazed on land with a slope of 25 degrees or greater; and
9. No dairy farming occurs; and

In addition, for properties that are greater than 20ha:

1. Condition 10 requires the landowner to obtain and provide independent verification from a Certified Farm Environment Planner that the use of land complies with conditions 1 – 9 ; and
2. Condition 11 requires that for at least 9 months in any 12 months period, more than 75% of the stock units on the property are horses; or the property is only used for free range poultry. There would be few (if any) farms over 20ha in size that are only used for free range poultry!

Rule 3.11.4.2 (Interim Permitted activity rule – farming prior to obtaining consent) provides for interim farming as a permitted activity until the relevant Application Date (see Table 3.11-3) provided farming is undertaken in compliance with the minimum farming standards in Schedule C.

It is important to note that under the new rules any dairy farming will need consent either as a controlled or as a discretionary activity depending on the level of nitrogen produced.  Similarly, any vegetable growing also needs consent as does farming in the Whangamarino wetland catchment.

Importantly, Rule 3.11.4.9 makes the conversion of land to dairy or from forestry to any new land use a non-complying activity.  That means that consent will be very difficult to obtain for such conversions.

Minimum farming standards (stock exclusion)

Schedule C sets out “minimum farming standards”. In addition to other requirements, minimum farming standards require farmed cattle, horses, deer and pigs to be excluded from the water bodies. That means rivers, streams and wetlands of any size (and even if they are not wet all year) need to be fenced – if:

the water body is on land:

1. with a slope of up to 15 degrees; or
2. with a slope over 15 degrees and there are more than 18 stock units per hectare being grazed in an adjoining paddock at any time;

The definition of water bodies, includes intermittent flowing rivers and artificial watercourses,which will make this standard challenging for compliance on hill country farms, which have numerous dry creeks at the bottom of large paddocks and rely on that land for summer grazing when stock is not likely to damage or disturb the ground.

Farm Environment Plan and its standards

PC1 introduces a new scheme of Farm Environment Plans (FEP). Depending on the intensity of farming, landowners/users must provide a FEP either under Schedule D1 or Schedule D2 to WRC for approval.

Schedule D1 sets out the scope and the standards of FEP in respect of the farming activities which are Permitted Activity Rule (low intensity farming) and Controlled Activity Rule (moderate intensity farming). It is anticipated that these two activity categories would cover most common farming activities in Waikato region  which require, a FEP to be prepared by the landowner or  person on behalf of the landowner (but which do not have to be certified by a Certified Farm Environment Planner).

The Part D of Schedule D1 sets out several requirements.  Among others, of particular note, are the standards relevant to land and soil and race, laneways and bridges which may require redesign and reconstruction to ensure none of the key contaminants can reach water bodies.  The current state of existing farm infrastructure could cause compliance difficulties and significant costs for landowners/users.

What should we do?

PC1 will require all existing farming operations to change the way they operate and many will need to apply for resource consent because they will not qualify as permitted activities.  Even to continue as a permitted activity, all farms will face significant compliance changes with more paperwork, environmental planning and construction costs.

In our view, the decision provides rules that will meet landowners’ collective obligations under the Waikato Regional Policy Statement and National Policy Statement for Freshwater Management 2014.  However, achieving those environmental outcomes comes at a cost that will not be borne by the whole community and may be unjustified in certain circumstances and within the required timeframes.  Compliance may also be impracticable and/or financially unviable on some farms.

All submitters, landowners and interested parties should obtain urgent legal advice regarding the implications of PC1.  Appeals to the Environment Court from individual farmers and growers must be lodged by 17 August 2020.  There will also be an opportunity for interested parties to join appeals, by 28 July 2020.

Please contact our Resource Management specialist lawyers who can provide detailed legal advice relating to PC1 and can assist with lodging appeals.

This article is current as at the date of publication and is only intended to provide general comments about the law. Harkness Henry accepts no responsibility for reliance by any person or organisation on the content of the article. Please contact the author of the article if you require specific advice about how the law applies to you.