Some believed complex consent applications from Horizons could now cost more than $50,000 but there was general agreement the ruling, sought by the Auckland-based Environmental Defence Society (EDS) and Wellington Fish and Game, would require councils to take a stricter definition of environmental plans.
Ramifications from the ruling could affect the granting of restricted discretionary consents and the way councils considered the practicality and affordability of consent conditions.
Processing of about 40 consents with the council, also known as Horizons, was suspended following the court decision earlier this year, which ruled the council was not following its One Plan when considering nutrient leaching.
As a result of the case, the council warned consents would take longer, be more involved and cost more.
Its strategy and regulation group manager Nic Peet said it was still to determine a new cost structure and the type of information required for complex consents.
“Will farmers need to commission an ecological and environmental effects report?
“A key question is around farmer’s needing to analyse and give effect to all the policies and plans and if that will require planning support.
“An open question at the moment is will they be required to assess the potential impacts on drinking water intakes?’
Peet said how those questions were answered depended on the complexity of the consent and environmental aspects of each application.
Horizons use of Overseer as a regulatory nutrient management tool was one reason the case went against it.
Peet said a new version of Overseer was released after the council’s One Plan was notified, which most farms that met leaching criteria under the earlier version were suddenly in breach despite not changing their farm management.
The court also determined the One Plan did not allow the council to take account of the practicalities and affordability of mitigating options for applicants when considering consents because that option was not written into the plan.
“If the community wants it (practicalities and affordability of mitigation) to be a factor then they needed to have it written into the plan,” Peet said.
As a result of the ruling Peet advised councils to take care in granting discretion in consents and assessing cumulative effects from diffuse pollution sources.
Local Government New Zealand regional group chairman Doug Leeder advised farmers to look closely at the implications of councils using Overseer nutrient budgeting as a regulatory tool.
Manawatu Federated Farmers past president James Stewart warned the court ruling could see councils apply a more rigid definition of environmental law.
“This is a sign of how political it is, that it goes right down to points of law and it could happen in other parts of the country.”
In the South Island the EDS had successfully sought an Environment Court declaration on land use changes to the Mackenzie District Council’s district plan.
Federated Farmers had sought clarity on that ruling through an appeal to the High Court, fearing farmers would now require resource consent for activities such as applying fertiliser or fencing.
EDS and Fish and Game had also offered to co-operate with the Hawke’s Bay Regional Council to seek a ruling on the “ambiguities” of nitrogen limits in the consent conditions for the Ruataniwha Dam.
Horizons chairman Bruce Gordon said the original scheme would have removed 200 tonnes of nitrogen from the region’s waterways once all 400 dairy farms were consented.
Progress was being made on water quality in the region with results from 10 years monitoring at 36 sites showing improved readings for E coli, oxidised nitrogen, dissolved reactive phosphorus and turbidity.
Rules stymie eco-friendly farmer
All Neil Filer needed was a signature from the Manawatu-Wanganui Regional Council confirming the granting of resource consent for his two Tararua dairy farms.
He could then start introducing farm management changes that reduced his impact on the environment after an investment so far of about $10,000 and countless hours of work preparing his consent application.
But all that was now in limbo after Fish and Game Wellington and the Environmental Defence Society (EDS) successfully took a case to the Environment Court arguing the council’s One Plan was not being implemented lawfully.
Filer warned farmers throughout the country they could face the same challenge from environmental groups resulting in regional councils adopting a more rigid interpretation of their environment plans.
“Look out for these guys, they don’t have your interests at heart,” he said of EDS and Fish and Game.
Filer said as a result of that court case the council, which also calls itself Horizons, would have to revert to an interpretation he described as “unworkable”.
Despite the upheaval, Filer was committed to shifting from growing crops to winter his cows to a more environmentally friendly regime of feeding them silage and hay.
“We are committed to doing these changes. It is up to the council to catch up with us.”
No apologies for seeking strict ruling
Environmental Defence Society head Gary Taylor makes no apologies for successfully taking legal action over the way the Manawatu-Wanganui Regional Council was implementing its One Plan.
The council, also known as Horizons, was not acting lawfully, he said.
Farmer anger at the Environment Court ruling which found the council was implementing the plan incorrectly should be directed at the council.
“We were seeking a lawful interpretation of the plan,” he said.
EDS and Wellington Fish and Game successfully took the council to the Environment Court over its interpretation of nutrient leaching in its One Plan but Taylor said no one was above the law.
The council and farmers said the ruling meant resource consents would take longer to process, require more information and be more costly.
Taylor acknowledged in some cases farmers might face a difficult transition to manage their environmental effects as required by the plan but that was true throughout New Zealand as part of fresh water management reforms.
Water quality data showing an improvement was presented to the court by the council but Taylor said the court still ruled it was not administering the One Plan correctly.
The EDS has also been involved in legal action over the Mackenzie District Council’s district plan change 13, with Federated Farmers now seeking a High Court hearing on the document following the society’s successful court action.
Taylor said farmers would not get from the High Court the clarity about the impact of the plans changes that they sought.
He also called for the Mackenzie Country Forum, a working group of farmers, locals and environmentalists, to discuss how conservation and farming could co-exist.
While his non-government organisation was determined to ensure councils administered plans correctly he had noticed a change in attitude towards the environment among most farmers.
“There has been a sea-change in farmer attitude in most parts of the country though not all of it and a recognition from Federated Farmers and others that we need to work within environmental limits and water quality limits.”
