Don’t fire up the bulldozers in the McKenzie Basin just yet. Land use consents for cubicle dairy farms granted by the Waitaki District Council may need to be reheard

This is not widely understood, and was only belatedly understood: all of the publicity around cubicle dairy farming proposals stems from only one aspect of the proposals.

Effluent discharge applications have now been called in by Environment Minister Nick Smith, for hearing by a board of inquiry. But other key consents for land use proceeded effectively in secret, without any public notice, and were granted by the Waitaki District Council in September and October last year.

The land use consents permit “intensive farming and earthworks”, including construction of the buildings to house the cows. Certificates of compliance were also issued for crop production, and water take infrastructure from Lake Ohau -- confirming that these would be permitted activities, not requiring consent. They are available online here (Five Rivers Ltd -- Ohau Downs; Southdown Holdings Ltd -- Glen Eyrie Downs; Williamson Holdings Ltd -- Killermont).

Waitaki District Council thought that none of this would bother anybody, because of the spot’s isolation:

In the case of these land use consents, the effects we considered were -- odour, noise, dust, rural amenity and visual effects resulting from the proposed intensive farming activity and earthworks. We deemed those effects would be no more than minor as the sites are very isolated and there is considerable separation between the sites and any established residential dwellings. There were no special circumstances in relation to the applications which would lead us to conclude that the application should be notified ...

This decision may have been incorrect, rendering the process followed by the Council unlawful, and the consents invalid. If so, they would need to be reheard.

Judicial review ensures that public decision-makers do not abuse their powers. They must follow the law that regulates their decisions. If they have misunderstood the law, or failed to give effect to it -- perhaps failing to consider everything relevant, or improperly taking into account things that are irrelevant, or following the wrong procedure -- the decision may be reviewable. One key objective of the law is to provide proper opportunity for people to participate in decision-making.

I envisage a happy day out for lawyers, arguing about whether / which judicial review grounds might be engaged in the circumstances of this case. But to kick things off, there are at least a couple of problems.

Under section 93 of the Resource Management Act, Waitaki District Council was required to publicly notify the consent applications, unless satisfied that the adverse effects of the activity on the environment would be minor. “Environment” is defined in the Act as follows:

environment includes -- (a) ecosystems and their constituent parts, including people and communities; and (b) all natural and physical resources; and (c) amenity values; and (d) the social, economic, aesthetic, and cultural conditions which affect the matters stated in paragraphs (a) to (c) of this definition or which are affected by those matters.

By contrast, as explained on their website and reproduced above, the Council seems to have focused almost solely on whether effects on people would be minor. That’s an aspect of the definition, but ecosystems and their constituent parts, natural and physical resources, and so on, are protected in their own right.

Secondly, this conference paper by Charles Chauvel, delivered when he was a public lawyer and partner at Minter Ellison Rudd Watts, notes that in the specialist jurisdiction of the Resource Management Act, “Applications for judicial review have been of particular use in challenging decisions under s94 RMA by an authority that an application for resource consent under the RMA need not be notified.” And according to the Court of Appeal, “There is a policy evident upon a reading of Part VI of the Act, dealing with the grant of resource consents, that the process is to be public and participatory. ... Care should be taken by consent authorities before they remove a participatory right of persons who may by reason of proximity or otherwise assert an interest in the effects of the activity proposed by an applicant on the environment generally or on themselves in particular.”

You might well wonder, what were the Council planners thinking? We’ve been hearing a lot about this iconic landscape, and the nationally significant nature of the proposal: how could the effects of it be regarded by any rational person as “no more than minor”?

One possible answer is this: the consents and certificates of compliance linked to above show that on the district plan, the land in question is designated as “rural scenic” (as opposed to, for example, “outstanding landscape”). And permitted activities within such a zone already include farming activities, and in particular, the intensive farming of pigs and poultry. It has to be asked: if those two other forms of intensive farming are regarded as acceptable for the location, how is intensive dairy farming unacceptable? One may well have a problem with the district plan -- but if the rules are insufficiently robust from an environmentalist’s point of view, that is not individual farmers’ problem, when all they have done is comply with the law. And it was no doubt in the Council’s mind, in determining that these applications were not a significant departure from the norm.

However, under section 94A of the Act, when forming an opinion as to whether the adverse effects of an activity on the environment will be minor or more than minor, a consent authority may disregard an adverse effect of the activity on the environment if the plan permits an activity with that effect. But this is discretionary: not in itself an answer to the necessary assessment of the effects, and a determination whether to publicly notify the applications.

The Environmental Defence Society (EDS), comprising Resource Management Act experts, has called on the government to file judicial review proceedings. The called-in applications relating to effluent discharge must surely be, from an environmental perspective, a high hurdle to clear; the government may think it has done enough. But if there was any risk at all that these consents might need to be granted, then it would be important for the government not to neglect this other aspect.

Alternatively, some other person or group who can show that their interests were adversely affected by the decision not to notify may wish to pursue it. EDS spokesperson Gary Taylor says his team is looking at judicial review potential, considers that there are good grounds, and expects to make a decision in the next few days.

Finally, I have reproduced the following quote at a little length, because I think it gives a perspective worth hearing. In 2005, farmer James Morris, whose Ben Avon station had been subject to tenure review (like Glen Eyrie Downs and Killermont), objected to the Council’s proposed revisions to “outstanding landscape” boundaries and requested some minor changes to the boundaries:

“ Ben Avon ” has recently completed tenure review, under which process the Crown took back 2/3 of the property in exchange for freehold title on the balance. … The Department of Conservation indicated clearly that their goals had been achieved at the end of the process. From the farming perspective we had to drop 3000 stock units or slightly under half what we had been running. The obvious expectation was that we would intensify the operations to attempt to claw back some of those lost stock units. There are small pockets of good soils on “ Ben Avon ” … scattered through the proposed [outstanding landscape area] … At over 2500 feet above sea level our climate frustrates many farming activities already, without having other constraints. … The areas spoken of have a power line running through the middle of them and are interspersed with hay paddocks, fences, hay barn and other signs of intensive farming and human habitation. I have farmed “ Ben Avon ” now for 18 years and we have not planted any shelter belts in that time. This is not through laziness, but a firm policy, that this landscape is too beautiful to have straight lines of ugly pines and conifers marching across …

Some farmers clearly do try hard to balance the tensions of operating profitably in this fragile precious area; they know and love the area, far more intimately than many other New Zealanders currently exercised about it; and in fact, the landscape is already far from “pristine”.

So the cubicle dairy farming proposals are, in a way, not a new problem -- just another aspect of a long-running debate that rumbles on in the McKenzie Basin. But the issue is one of scale, and protecting what we have left -- and in any event, given the nationally significant nature of this proposal, which nobody but the applicants seems to dispute, it is vital to have full confidence that all decisions relating to it have been properly made.