The Environment Court has confirmed when tough new rules restricting development in the Mackenzie district will come into force, which should thwart a dozen consent applications made this year for agricultural intensification and conversion.

In a 36-page decision released last Friday, the last business day before Christmas, Judge Jon Jackson declared that the rules of a controversial Mackenzie District Council plan change were operative from April 13 – the date of another of his decisions.

That closes what the Environmental Defence Society (EDS) calls a “potential loophole”, through which consent applications in a legal grey area could have made irreparable changes to nationally and internationally important areas.

Four of the applications lodged since April 13 were made by Simons Pass Station Ltd. Over many years, it has quietly gained approval for a vast farming operation on the Pukaki flats, milking up to 15,000 cows in seven dairy sheds. (Although owner Murray Valentine told The Listener last year he’d scaled down his plans to a $150 million investment involving 5500 dairy cows being milked in three dairy sheds, on a property watered by 30 pivot irrigators.)

Given the time of year, many of the parties to the court proceedings couldn’t be reached for comment.

But EDS chief executive Gary Taylor tells Newsroom the decision is good news for the wider Mackenzie Basin – but not Simons Pass Station, which has approvals pre-dating April 13.

Taylor says consents approved since April 13 are now invalid and will have to be revisited. “That will include any resource consents not yet acted upon so any landowner/lessee in that position should not exercise the consent.”

The Environment Court is yet to rule on council-issued certificates of compliance.

Legal bickering

Mackenzie District Council first notified so-called plan change 13 in 2007. What has followed is a decade of hearings, court declarations and appeals – basically, much legal bickering over the future of the Mackenzie.

As plan change 13 decisions have been handed down, many farming activities in the Mackenzie have gone from being permitted to discretionary or non-complying, which means they now need a resource consent.

The public was extensively consulted on the proposed changes, under a package of amended objectives, policies and rules formally announced in November 2015.

On April 13 this year, the Environment Court ruled on those changes, in its eleventh decision on plan change 13. The decision said pastoral intensification in some of the Mackenzie Basin’s outstanding natural landscapes was “often inappropriate”. Beyond the nationally important visual qualities of the landscape, the court said a long list of threatened plant species, in particular, should be better protected.

The court called on the council to do a better job. It said the accumulative actions of farmers in the Mackenzie Basin means landscape values have been modified to the point where their classification as outstanding natural landscapes was being threatened. “We consider management by the council is overdue.”

The court also called for an immediate moratorium on the controversial tenure review process.

Managing ‘mischief’

Last Friday’s decision – which decides those rules took immediate legal effect – talks of managing “mischief” over irrigation-assisted pastoral intensification.

Simons Pass Station Ltd argued the rules did not take legal effect from the April 13 date of the eleventh decision. It said the rules were not sufficiently fixed or final – “too inchoate” – to be enforceable until the next court decision, issued in September. That was because the court left the council to come back to court with the plan change’s final wording.

But the court sided with Mackenzie District Council’s submissions, that there was limited scope for change, especially over activities like fencing and agricultural conversion, which were no longer going to be permitted as-of-right by the council. The rules were sufficiently fixed so member of the public and affected landowners knew what they were, the court ruling said.

As EDS’s Taylor pointed out in his affidavit to the court: “Intensification in the Mackenzie Country has already been facilitated through regulatory error and reliance on purported areas of planning or legal ‘grey’ … Again we are confronted with a situation where potential ‘loopholes’ are being relied upon in a manner that will result in significant impacts to values of national importance.”

On a technical point of law, it was important that the plan change was notified before Resource Management Act amendments in 2009, which changed the presumption of when proposed rules had legal effect. The court said under the 2005 version of the act, rules should have immediate effect “to prevent people trying to game the system”.

Mackenzie a battleground

The Mackenzie, which has been rapidly greened over the last decade, has been a battleground symptomatic of a wider, national environmental debate between farmers and environmentalists.

Farmers argue they need irrigation to stop soil from blowing away and, with vast swathes of land going back to the Government, their whittled-down farm operations need to be intensified to make money. They also point to the Mackenzie Agreement signed in 2013 – but never implemented by the last Government – as expressly contemplating large areas of more intensive farming, as long as other areas were set aside and protected.

(Canterbury Regional Council figures provided to the Environment Court show 12 water consents were lodged in the 12 months after November 2015, the month plan change 13’s amendments were notified, which could lead to 13,000 hectares being irrigated. The court said in April: “If that area were, in fact, to be irrigated, it appears to us that the Mackenzie Agreement would be meaningless.”)

Environmental groups, on the other hand, say the greening of the traditionally brown landscapes destroys natural ecosystems, the home of invertebrates, lizards, fresh water fish and bird species. The groups say the pace of change in what was a vast area of continuous tussock grasslands has been catastrophic and unrelenting.

An important strand of the debate has been over tenure review, which carves up Crown-owned station between landholders and the Department of Conservation. Simons Pass Station is in the final stages of tenure review.

While more intensive farming has been the focus of much of the public debate, newly freeholded land can be used for other development. Earlier this month, Newsroom broke the story of a Hong Kong businessman’s plans to build a private lodge within 40 metres of Lake Pukaki.

David Williams is Newsroom's environment editor, South Island correspondent and investigative writer.

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