Big win for high country irrigators in Five Farms decision

Thursday 23rd August 2012

The destruction of native vegetation by irrigation has been upheld in a landmark High Court decision for development of land in dry, high country catchments such as the Mackenzie country.

Royal Forest & Bird Protection Society took corporate farmer Five Farms and the Waitaki District Council to court for a judicial review of the council's granting "conditional certificates of compliance" to high country farming operations.

The practice allows farmers to avoid requiring a resource consent to develop their land, but with restrictions on native vegetation clearance. The WDC case involves farmland also designated as part of the WDC's scenic rural zone.

Forest & Bird was successful on other issues, getting the conditional certificates declared "illegal" and established "at the least the possibility of vast tracts of indigenous vegetation in areas where the proposed activities were to be undertaken."

Planned arable cropping in the area did constitute native vegetation clearance, Justice Christine French ruled. She agreed, as did all counsel, that native vegetation in the dry Waitaki Valley environment would disappear within a year or two, if not months, once an area became irrigated.

But the WDC's rules did not specifically nominate irrigation as a cause of native vegetation clearance. "Irrigation is a vitally important and highly contentious issue in the Waitaki District. Had irrigation been intended to be included (in the District Plan as a non-complying activity), the draftsperson would have made specific reference to it.

The wording permits of only one conclusion, namely that irrigation is outside the definition." Counsel for Five Rivers argued Forest & Bird tried to use the court action to win a battle it had already lost in the drafting of the WDC's District Plan in 2006 to make irrigation a "non-complying activity in the rural scenic zone."

Justice French did not agree. Forest & Bird has a similar case before the courts, involving the Mackenzie Country, and the precedents on conditional certificates and cropping were useful, said Forest & Bird's South Island conservation manager, Chris Todd.

"But it's disappointing for us that the court took a narrow definition of native vegetation clearance," he told BusinessDesk. The judgment was too fresh for the environmental body to consider appealing.

The judgment comes as Economic Development Minister Steven Joyce takes the lead on environmental policy under a new informal Cabinet committee structure being used to push what the government calls its Economic Growth Agenda.

Joyce argues greater agricultural intensification is essential to higher economic growth rates. Justice French said that in granting a compliance certificate for Five Rivers's plans without a resource consent, the WDC was wrong to rely on the farmer's assertion that its activities would be compliant when it appeared its plans appeared might not be.

"It was incumbent on the Council to do more than just rely on the bare assertion of the applicant," said Justice French, in one of her last High Court judgments since being elevated to the Court of Appeal last month.

BusinessDesk.co.nz

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