The quashed ‘cubicle dairy’ consents and withdrawn applications were only the opening line of a much more difficult conversation: can you tell happy cows in a barn from sad ones in a so-called factory?

As the dust settles over the quashed ‘cubicle dairy’ land use consents, we’ve yet to grasp the bull by his horns.

You might have thought we’d laid that beast to rest: land use consents overturned, on judicial review; called-in effluent storage and disposal applications sideswiped, by million-dollar cost recovery. But he’s galloping off, up ahead.

The water take applications are still in progress. Richard Peacocke, on behalf of the applicants, says they’ll try again in future. But theirs was only the sharp end of it, the prod that shocked us into awareness: an unsuitable location, and extended confinement periods. Nothing surer: there will be other similar applications, and there are already similar farms.

I’m trying to find out how many applications. Semi-educated guessing, they’ll be in South Canterbury (Waitaki, Waimate, Mackenzie and thereabouts) and Southland — the parts of the country where dairy pressures are intense, and where the economic costs of investment, and environmental or animal welfare objections, can be offset against pasture damage from long hard winters, and plausible animal welfare arguments.

But the ground’s shifted, anyway, or if it hasn’t yet, it needs to. I'm not so sure that the number of applications matters any longer. The question is what to do about what's happening already.

Because we do know already, as I wrote here, that there are farms of that kind operating round Waimate. TVNZ Close Up did a piece on Glenavy, without quite addressing how long the animals spend in the sheds. The Otago Daily Times reports on Morven, where 500 cows are housed in a barn and milked by six computerised robot milking machines. “I have swapped human capital for technology,” says the farmer. Eventually he wants to milk 600 cows which will each spend 10 months in the shed. Shame he can't swap them for technology, too.

The failed Mackenzie applications were for animals to be housed full time 8 months of the year, and 12 hours per day for the remainder.

Kevin Tiffen, resource manager at Waimate District Council, was the first to reply to my email:

“I am aware of five large wintering or loafing barns in the Waimate District [three of them owned by the above farmer]. At the time of erection, we were informed that these barns would house cows over the winter months only, i.e. taken off to avoid damage to the pasture. During that time, there is no grazing and the cows receive supplement feed which occurs anyway even if the cows were outdoors. No one has applied for resource consent to operate a ‘factory farm’ as such (i.e. production of commercial livestock where the regular feed source for such livestock is provided substantially other than from grazing the site concerned) … .”

He pointed me to the ODT article. “We are currently chasing this up,” he commented, dryly. And, when I asked him whether resource consent processes would properly pin down the applicants on distinctions between bad weather shelter and what I would call ‘factory farming’: “I guess we have been caught out a bit by concentrating on the wintering of the cows. Certainly, cows being milked and housed indoors for most of the time is considered to be ‘factory farming’,” which would require resource consent.

By contrast, in the Listener this week, Rebecca Macfie reports on another Southland example, of dairy cows housed for 2 months, mid-winter. Which seems … almost self-evident. Certainly, humane. Who among us hasn’t heard those Morning Reports on Southland lambs and calves frozen to death in the latest spring blizzard — that happen every bloody year down there, yet the farmers rarely fail to sound surprised, and it perennially makes the ‘news’ — and wondered: how hard could it be to build some shelter for them?

Somewhere between those two extremes — two months of the year in a rugged climate, and ten months, or thereabouts — lies the difference between a barn and a factory. The difference between what's acceptable, reconcilable with our pastoral self-image, positive for the environment, and what's not. I’m trotting out all my lamest puns: this is a right cow of a policy problem.

The Greens, because of their core policies, are having to grapple with it. Local and central government policy makers must, too. I’m trying to confirm whether factory farm-specific consent would be required in all districts, and if so, how that’s defined. It’s clear that such applications wouldn’t always be publicly notified; that’s driven by separate statutory requirements. And perhaps, as in Waimate, it won’t always be apparent on the face of the applications what type of farming operation is intended, or maybe what started as one idea (wintering over the cows) might evolve over time into another.

Nor does the new 2010 dairy code of welfare address it. Agriculture Minister David Carter has asked for separate advice.

So, the status quo's ripe for exploitation — Mr Peacocke, et al, prove that. I mean ‘exploitation’ in a totally non-pejorative sense. If bureaucrats leave the gate open, what farmer in his right mind in tough times wouldn’t drive his herd through it?

As is the alternative, if we accept this new idea. We’re only just, collectively, wising up to the many among our farmers pushing the boundaries of acceptability, for profit and convenience. Both the pork and dairy industries have a long ‘tail’: slow to relinquish intensive pork (sow crate) and dairy (induction) farming practices; slow to clean up their environmental act (eg, the clean dairy accord). The risk is of those old habits being dressed up in a new set of clothes.

So the 'cubicle dairy farming' argument’s unpalatable, taken to its furthest extent. It doesn’t, sadly, follow that it’s a dumb argument, or that we can avoid it any longer, even if we wanted.