In the end it came down to grass, council inaction, and an extraordinary notion of fairness.

A consent has been granted by an independent commissioner allowing water to flow through six pivot irrigators at Mackenzie Basin’s Simons Pass Station, south of Lake Pūkaki. The controversial farm is undergoing a $100-million-plus dairy conversion that has attracted a Greenpeace protest and court action.

A crucial point considered by consent commissioner Darryl Millar was whether indigenous plants under the pivot areas – now awash with pasture – had been cleared legally. Council-appointed planner Nick Boyes suggested, and Millar agreed, that it would be “unfair” to block the development after the council decided against taking enforcement action.

(Simons Pass Station owner Murray Valentine says: “We wouldn’t have done things if it wasn’t by the book.” Because of recent rain, the pivots have not had to be operated, he says.)

The consent, granted on October 10, gave final approval to the Simons Pass development’s first stage, covering an area of more than seven square kilometres, or 10 times the size of Auckland Domain.

The decision continues a direction towards development at Simons Pass that’s the opposite to that taken by the Mackenzie council. The council has spent more than $1 million on court action over more than a decade defending stricter rules on development, including farm intensification.

A 2011 Environment Court decision, on the Mackenzie council’s plan change 13, suggested Simons Pass’s glacially formed terminal moraine and outwash plains were of considerable importance. “This area may be the last main opportunity to protect the aggregation of landscape and ecological qualities present here.”

That should have been possible, considering almost 5600 hectares of the station is Crown pastoral lease that is now in the final stages of tenure review – the controversial process, being scrapped by the Government, to divide leases properties into freehold and conservation land.

It’s not clear how much of the outwash plain, if any, will go into public conservation land, or how much of it will be irrigated and put into pasture.

“It is likely that indigenous species were dominant at some locations.” – Mike Harding

As part of the consent process, Ecologist Mike Harding was hired by the council to assess the plants underneath the irrigators. If they were mostly indigenous that might trigger tough vegetation clearance rules.

Harding agreed with Simons Pass’s expert Professor David Norton – whose assessment was done on areas earmarked for stock tracks, that have now been built – that the pivot areas were now dominated by exotic pasture grasses.

It was inevitable he would.

Simons Pass – which maintains it either has approval for the clearance work or existing use rights, a position not agreed by the council – already admitted to treating the pivot areas repeatedly, through topdressing and oversowing, as well as herbicide spraying and the direct drilling of crops. The scale of the work was so vast, and changed the landscape so markedly, you could see it easily on satellite maps.

The more important question was if the clearance was legal.

Norton’s report didn’t provide the answer. It lacked historical surveys or photographic evidence of indigenous plants under the pivots, Harding noted. “The report’s contention that vegetation of the pivot areas has been ‘improved pasture’ since February 2015 … is questionable and unsubstantiated.”

He adds: “It is likely that indigenous species were dominant at some locations.”

(Those comments might have led to Harding being blocked from undertaking an assessment at Simons Pass for the Department of Conservation late last year.)

Harding’s report highlights two other important matters: the possible threat of white rust, an introduced fungus, on dryland cress, a critically threatened indigenous plant species; and irrigation effects on drought-adapted plant species, which might be invaded moisture-hungry exotics.

There’s a marked difference between irrigated and non-irrigated land at Simons Pass. Photo: Mackenzie District Council/Mike Harding

The Mackenzie council confirmed to Boyes that its view was the rules were unlikely to have been met by Simons Pass when clearance first took place. Former council group manager relations Karina Morrow wrote: “There wasn’t sufficient evidence to confirm a breach of the vegetation clearance rules and so the matter was not pursued.”

Boyes’ report acknowledged there was still uncertainty about the legality of the clearance. Indeed, Simons Pass provided no evidence that it met the rules.

Despite those persistent concerns, Boyes thought it “unfair” for the council to now decide the clearance within the pivot areas, known as “node C”, was illegal. He noted the time that had elapsed, the lack of action by the council, and the granting of numerous subsequent land use consents for development.

“In my view it would be unfair for the council to now suggest that the existing environment was not lawfully established.”

Simons Pass’s landscape expert, Jeremy Head, says the adverse effects of irrigation will be “very low” because of the highly modified existing environment. (The consent also approves direct drilling at will within node C.) However, landscape architect Graham Densem, for the council, believed further pivot circles – “up to a total of possibly 39” – would “greatly” exceed the ability of the landscape to maintain its value as an outstanding natural landscape.

Valentine wouldn’t discuss Simons Pass’s future development plans. Consent conditions for node C include 200-metre setbacks for irrigation, and monitoring for the effects of changes in temperature and soil moisture, the details of which were largely left to Simons Pass. Awkwardly, public access to the historic Bullock Track now passes through several paddocks.

The Boyes report also details several resource management problems at Simons Pass.

Unlawful irrigation of one pivot area resulted in an abatement notice issued by the council in February. The Mackenzie council’s internal audit of Simons Pass consents, after a recent Environment Court decision, showed five consents were processed incorrectly – for example, being classified “controlled” activities instead of “discretionary”. A retrospective consent was required to approve one pivot being located within 250m of State Highway 8.

Notification open to council

Commissioner Millar decided not to publicly notify the consent – something called for by the Environmental Defence Society (EDS), Mackenzie Guardians, and Greenpeace.

Council planning manager Ann Rodgers says the reasons were outlined at length in the commissioner’s notification decision. “We are aware there is public interest in Simons Pass but we are required to follow the provisions in the [Resource Management] Act.”

Simons Pass lawyer Kelvin Reid argued there were no special circumstances requiring public notification. But legal advice to the commissioner from Buddle Findlay partner Alanya Limmer and special counsel Cedric Carranceja says it was “reasonably open” for the council to conclude the level of public interest by itself constituted special circumstances for public notification.

EDS executive director Gary Taylor says Simons Pass is building a nationally significant project that’s attracted widespread public interest. “I’m always upset when there’s a non-notified decision like this.

“However, we have decided that we’re not going to seek judicial review of that decision. We will focus more on the balance of the property where the ecological values are arguably higher.”

Fundamentally, what has happened at Simons Pass over many years is the authorisation  – piece by piece, or consent by consent, if you like – of intensive commercial farming in a rural, drought-prone area classified as an outstanding natural landscape. It took years to get this point, with multiple agencies granting piecemeal approvals, and, in some cases, not enforcing rules and consent conditions.

The reason for the Mackenzie council notifying plan change 13 in the first place was to provide greater protection for the Basin’s landscape values. Hope must now be fading for the realisation of the ambitions for Simons Pass contained in the 2011 Environment Court decision.

“Fortunately, it appears that most of the area which Simons Pass wishes to irrigate is beyond the Lake Pukaki terminal moraine’s limit,” the decision said. “It must be desirable that some of the outwash plain, however (within reason) degraded, should not be irrigated so as to keep the natural sequence intact.”

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

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