In the latest skirmish, the Mackenzie cubicle dairy applicants — or, as they prefer to say, ‘covered farms’ — have turned an apparent setback into a tactical mini-triumph

The Environmental Defence Society was “gobsmacked” on October 1. A fortnight later, when I catch up with its chairman Gary Taylor, he’s still carefully choosing his words.

When — having been pinged by the government for $2.6 million costs — the ‘cubicle’ or ‘covered farm’ applicants withdrew their called-in resource consent applications, Environment Minister Nick Smith said they were “gaming” the resource consent process. Strong words, from the mouth of a Minister, but he never spoke truer ones.

The story broke and ran and ran last December and into the new year. The government finally decided to ‘call in’ some of the applications, for effluent discharge, for hearing by a board of inquiry. The applicants, thwarted by the cost recovery, withdrew the applications, and retreated to the moral high ground: they had wanted a debate, they said, it was a shame we didn’t have it, and it was all down to public hysteria, whipped up by the Greens.

Their withdrawal fitted their methods of proceeding to date — with different types of resource consent application, for land use, irrigation, and effluent discharge, filed piecemeal, making it hard to scrutinise the proposal as a whole.

This is not, in itself, wholly the applicants’ fault: they filed stuff in the proper places, albeit at different times. But the fractured RMA process, while no doubt inconveniencing and costing them to some extent, has helped them, too.

Their sudden enthusiasm for a debate, and claim to have been denied it, sat ill with the fact that land use consents had proceeded under the radar, unnotified. The land use consents were by then under judicial review, with EDS as the plaintiff, that being the only way left to challenge them.

That was in March. Richard Peacocke, who seems to be the main spokesperson for the three companies involved, said the country was not ready for this farming innovation yet; they would try again, in two or three years.

In fact, it took two or three months. In May, new applications for land use resource consent, and certificates of compliance (a separate requirement) were filed, while judicial review was still proceeding, on the already-granted applications. According to the Waitaki District Council, these were “basically the same” as the former proposals.

Who knew? I have a copy of the consent memorandum, filed in the Christchurch High Court, dated July 23. It looked like a short-term win for the EDS, and was reported as such.

It records that earlier decisions to grant certificates of compliance, and process the land use consents unnotified, were invalid, because the Waitaki District Council officer responsible lacked proper delegated authority. It says the resulting certificates and consents are to be “quashed and/or set aside”. The first defendant, the Waitaki District Council, is directed to reconsider its decisions. “The Second, Third and Fourth Defendants [Mr Peacocke, et al] agree to advise the Plaintiff [EDS] in the event of their wishing to reactivate the underlying applications.”

It is, with the benefit of hindsight, carefully worded. Purportedly, the Council would reconsider its unlawful decisions (on the existing applications?); these were on hold; and EDS would be advised of any change. Meanwhile, though, there were fresh applications. The defendants signed up to an agreement to quash and/or set aside certificates of compliance, probably knowing, by then, that the Council was considering new ones, and the likelihood was they’d be granted.

Which they were: “certificates of compliance for the projects have now been granted by the Waitaki District Council for a range of farming activities, including the establishment of dairy sheds and their ongoing expansion” reports EDS. Whereupon Mr Peacocke resurfaced, announcing that to preserve the applicants’ position, covered farming consents would again be sought for his Mackenzie Basin property. Although again, at the applicants’ request (confirmed to me by the Council), the land use consent applications have been put on hold, indefinitely.

Huh? Never mind. Here’s the key point. The applicants, Mr Peacocke at their head as spokesperson, are playing their opponents, like fish on a line.

They signed a settlement, and promised the court to tell the EDS about any intention to revive the proposals. They’d already breathed new life into them, though. New applications were going along, in parallel. Or at least, the certificate of compliance parts were, the remainder being once again on hold.

According to EDS chairman Gary Taylor, this “made the agreement redundant”.

“In my opinion the applicants have acted disingenuously and in breach of the spirit, if not the letter, of the agreement to consult,” he says. “In my opinion, that process was conducted in a … [and it’s here that he pauses for a very long moment] … tricky way.”

But is EDS any worse off than it was, other than feeling a bit, well, silly? This is a mind game, mostly, surely: it doesn’t alter the substance of the position a whole lot, from that presented to the court by consent of all parties.

It declares that this is war, although, on its face, a civilly conducted one. It sets collaborative efforts against “tricky” and not quite so tricky adversary, an example of the latter being rumours that high country farmers will attend this meeting, and try to shout it down. Like the applicants’ latest manoeuvres, that would speak volumes, in more ways than one. Factionalised hysteria, anyone?

It also makes it harder to grasp what the position actually is. Mr Peacocke is going forward, he tells us, to preserve his position. Except, um, he isn’t — simultaneously putting on the brakes, until such time as it suits him to go forward a bit more.

One thing the new applications will do is bring the case under the jurisdiction of the 2009 RMA changes. There is, presumably, some perceived advantage in this, perhaps the provision that says different types of called-in consents may be dealt with together, so that the applicants would only be paying costs once.

Gary Taylor complains that none of this — this business of filing applications and then suspending or withdrawing them, to avoid inconvenience — is a proper use of the RMA process. The RMA does provide for time limits to be extended or waived, but this indefinite suspension is a bit dodgy. The applicants, he says, are just filing now to protect their position, with a view to possible future changes to the district plan.

EDS is still considering returning to court on other matters, reviving disputes that lapsed when the case settled.

It is also calling for the land use consent applications to be publicly notified this time, opening them up to submissions. The Council’s planning manager told me in August that this would happen.

If Ministers were concerned enough to call in the effluent discharge applications before, logically, one should expect them to do so again, whenever that may be. All of the things Nick Smith said earlier still hold. It is still a proposal “of extraordinary scale”, a “completely foreign farming style in New Zealand”, the Mackenzie country is no less “fragile” and “iconic” than it was six months ago, and so on.

They will have jurisdiction over land use, too, this time, and discretion to decide to deal with land use and effluent discharge together.

However, the applicants are gambling on a change of public mood, long term. They’ve said as much, and now, they’re setting out to achieve it. The earlier call-in was a wholly political publicity-driven decision. If the media and public eventually tire of iterations of this on-again off-again, confusing, in the end quite boring story … well, the result may not be the same.

What looked, briefly, like one for conservation has turned out to be one for the high country farmers. Game on — but not quite set and match, just yet.