Statement from Environment Southland Chief Executive Wilma Falconer

Environment Southland is taking its concerns about a recent decision in the Court of Appeal (4/10/2024) to the Government.

The Court’s decision is likely to mean that nearly all Southland farmers would need to apply for a resource consent to keep farming lawfully.

Environment Southland’s concerns relate to the meaning of Section 70 of the Resource Management Act, which sets out restrictions on when a council can include a permitted discharge rule in a plan. (A plan has legal rules for discharges.)

The Council had sought the Court’s opinion on Rule 24 in its Southland Water and Land Plan due to concerns about duplication of regulations. Rule 24 seeks to allow incidental diffuse discharges from farming activities (e.g. animal urine) as a permitted activity provided farming activities are managed under other rules in the plan.

Environment Southland’s position is that it is doubtful additional resource consents for incidental diffuse discharges would have any additional environmental benefit beyond the land use rules the Southand Water and Land Plan already provides. Instead, it will add another layer of bureaucracy and cost for farmers and require the Council to resource the significant increase in consents processing that would be needed.

The Court’s decision has potential implications for councils and farmers in other regions, too, and Environment Southland has now effectively exhausted its options in the courts.

The Southland Water and Land Plan was notified in 2016. Rule 24 was initially appealed to the Environment Court by Forest & Bird and Fish & Game. The court subsequently questioned whether the rule complied with Section 70, particularly in relation to degraded waterbodies.

Environment Southland appealed the decision to the High Court and then the Court of Appeal, but has been unsuccessful. All courts have now indicated they do not consider that Rule 24 currently complies with Section 70 of the RMA.

The Court of Appeal decision is unlikely to affect farmers for some time as the matter has been sent back to the Environment Court to finalise the wording of Rule 24. The likely outcome is that farmers will need a resource consent for the incidental diffuse discharge of nutrients from farming activities.

The Council has written to the Government outlining the situation and requesting an urgent change to Section 70 as part of its review of the RMA, to address the issue.