New Zealand: Proposed vegetation clearance rules to the Mackencie Basin - not on the Christmas wish-list for everyone

With headlines like "Environment Court calls for pause on Tenure Review", "Alien landscapes in the Mackenzie Basin", "Federated Farmers attacks the Mackenzie Basin again" and "Bid to double irrigation in threatened species stronghold" the struggle is real to make a living from the land in the harsh climate that is the Mackenzie Basin.

The Mackenzie Basin subzone is a working rural landscape yet the new provisions introduced by Plan Change 13 (PC13) to the Mackenzie District Plan (MDP) promote the protection of the outstanding natural landscape (ONL) arguably at the expense of the livelihoods of the farming community.

A decade after its inception the line has been drawn and only time will tell whether PC13 will achieve the environmental outcomes its supporters have advocated. PC13 has been the subject of twelve Environment Court decisions and number of High Court proceedings.

On the back of PC13, taking an active role in plan development/change may seem akin to David's battle against Goliath however getting involved in the early stages is crucial to eliminate factual errors, to keep a finger on the pulse of various iterations of the proposal and to stay ahead of any new controls.

The pressure is on for the Mackenzie District Council (MDC) to notify a plan change to address its vegetation clearance provisions in the rural zone pre-Christmas. Plan change 17 to the MDP introduced a temporary twelve month suspension of an exemption to rules 12.1.1(g) and 12.1.1(h) which control clearance of identified indigenous species. The suspension expires on 24 December 2017.

The Issues and Options consultation package released for comment in August 2017 provided little in the way of direction however the odds are stacked in favour of the MDC maintaining its approach to tighten controls on new development.

When preparing the new vegetation clearance provisions the MDC must give effect to the Canterbury Regional Policy Statement 2013 (CRPS) Objectives 9.2.1 – halting the decline of Canterbury's ecosystems and indigenous biodiversity and 9.2.3 – protection of significant indigenous vegetation and habitats.

Pursuant to section 86B of the RMA, this plan change will have immediate legal effect where the provisions protect areas of significant indigenous vegetation or areas of significant habitats of indigenous fauna. The Environment Court's Eleventh Decision (on PC13) found on the balance of probabilities that the Mackenzie Basin ONL is a significant natural area. This finding gives the plan change teeth and is likely to mean that the provisions must be complied with from notification.

The proposed vegetation clearance provisions have the potential to affect many different activities including proposed subdivision, built development, 'pastoral intensification' (subdivisional fencing and/or topdressing and oversowing) and 'agricultural conversion' (direct drilling or cultivation (by ploughing, discing or otherwise) or irrigation).

The existing provisions which provide for maximum areas of indigenous vegetation to be cleared as a permitted activity may not be retained. Additional consenting costs must be factored into the decision making process and considered alongside the extensive controls introduced via PC13, including pastoral intensification (except subdivisional fencing in some areas) and agricultural conversion which now require resource consent outside Farm Base Areas.

Existing use rights (EUR) are not a get out of jail free card. In order to rely on EUR it is necessary to establish that the use was lawfully established and the effects of the use are the same or similar in character, intensity, and scale to those which existed before the rule became operative or the proposed plan was notified - both which may be difficult to document over time particularly where the land use is cyclic in nature. If challenged, EUR are only as good as your records.

Once the proposed plan change is notified the submission period is short – 20 working days after notification. Any person can make a submission and we strongly recommend that you get involved. Complacency is not an option.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.