Keri Johnston
As we have all been diving into the detail of the Government’s proposed freshwater reforms package (because that’s where the devil is, as you know), there have been some moments of clarity, but also, aspects have created more questions than answers.
Below are some of the “more questions than answers” aspects of the reforms package.
Existing council plans
In some areas, Canterbury for example, lengthy community processes to develop sub-regional plans have already occurred, and Canterbury actually has two of these mid-process at the moment. So, what happens to these? The short answer from Government officials is that it is up to the individual councils to decide if they consider their plans are a reasonable step along the way to meeting the long-term vision (Te Mana O te Wai). The question was also asked whether the Government would need to sign off on this, to which the answer was “no plans at this stage”.
Now I know that this will seem like a wishy-washy answer and to be fair, it is.
The flip side is that technically, even the most recent sub-regional plans developed in Canterbury, would not fully give effect to the provisions in the new National Policy Statement, so legally, this creates some uncertainty and casts a shadow of doubt over the Government officials’ response. Watch this space.
Existing Farm Environment Plans
The question was asked whether those that have these in place already will have to re-do them in a new, improved, government-approved template, and the response was much the same as for existing council plans. I honestly don’t think this had been given a lot of thought by those developing the reforms as the response was quickly coupled with “you should submit on that”.
In the reforms, the use of Overseer is not compulsory at the moment to establish current and historical farming nutrient losses, but the reality is that as soon as councils set limits in plans, this will, by default, be a requirement, so no point avoiding the fact that Overseer will still be a part of farming life.
Intensification of land use
The criteria for obtaining a resource consent for land use change is to be able to show that there will be no further environmental harm as a result of the proposed activity. Two of the attributes that require this assessment are sediment and E.Coli. There is no real precedent for such an assessment and therefore a real concern that the threshold for information will be so high that it is impossible to obtain the required consent.
The second aspect again comes back to those areas there a planning process has already “held the line” or required a reduction in nutrient loss from farming activities. It was envisaged by the officials that Canterbury sub-regionals would be the only areas exempt from these provisions, although that is not explicitly spelt out in the reform documents.
You have a resource consent to change land use, or intensify, but haven’t actually used it yet, or are part way through a development
What do the reforms mean in this case? The legal answer is that consents prevail over a National Environmental Standard (NES), so unless a council reviews a consent on the basis that it doesn’t comply, then the consent is able to be implemented to its fullest extent.
There are some fishhooks with this. If the consent held is different to that required by the NES or does not expressly authorise the activity which requires consent under the NES, then this will be problematic. An example of this is a farming land use consent which does not expressly state that the land may be used for winter grazing.
Generally, most of these consents will not specify a specific land use, but rather an Overseer-based limit which must be complied with, meaning you can do whatever you like with the land provided the limit is met. Therefore, more clarity on this is certainly needed.
By the time you read this, submissions will have closed, and any developments and recommendations will be in the hands of the advisory panel. All fingers and toes are crossed for a sensible outcome.
