Proposed Canterbury Land & Water Regional Plan
On 11 August 2012, Environment Canterbury notified the Proposed Land and Water Regional Plan (“the LWRP”) for public submission. This article provides a short summary of some of the key changes introduced by the LWRP and the likely implications. The key message is that the LWRP introduces some significant changes with immediate effect that will impact on a wide range of activities, particularly in rural areas.
The core focus of the LWRP is on the quality and quantity of water throughout the Canterbury region. The issue of water in Canterbury has been the subject of much debate over recent years and there are a number of different initiatives underway to determine how the water resource should be managed. The LWRP is one of the key implementation steps within this wider process.
Many of the changes in the LWRP are the result of greater national direction on water management provided through the National Policy Statement on Freshwater Management 2011 (“the NPS”). One of the core requirements introduced by the NPS is that all regional councils must amend their regional plans to establish water quality limits for all freshwater bodies in the region and establish methods to avoid over-allocation. The changes introduced by the LWRP are directed towards achieving these outcomes, among other matters.
In addition to the NPS, the Canterbury Water Management Strategy (“the CWMS”) was released in November 2009 and provides a strategic and collaborative framework for managing water in Canterbury. This is achieved through ten zone committees, which work in consultation with local communities to develop zone implementation programmes (ZIPs) that identify priorities and solutions for managing water in their area. Where these ZIPs have been completed, the recommendations have been incorporated into the sub-regional sections of the LWRP.
The current regional plan is the Canterbury Natural Resources Regional Plan (“NRRP”), which has been criticised by some as unduly complex and unworkable. The LWRP adopts some of the same rules as the NRRP, but introduces some significant changes, as discussed further below. Once operative, the LWRP will replace the majority of the NRRP and will ultimately be the single regional plan managing all land and water activities in the Canterbury region.
As noted above, the key changes introduced by the LWRP relate to water quality and quantity. Dealing first with water quality, perhaps the most significant change is the introduction of rules controlling general farming activities that have traditionally been permitted activities. Key points to note are as follows (in summary form):
Prior to July 2017:
All existing farms must keep a record of nitrogen loss from the land, to be provided to ECan on request.
Any change to an existing farming activity must meet a series of conditions, including holding a water permit that contains limits on nitrogen leaching, record keeping of nitrogen loss, and compliance with an externally audited Farm Environment Plan.
From July 2017:
The use of land for any farming activity (including existing farms), must comply with limits on nitrogen loss for specific farming activities (yet to be developed). In addition, the annual average loss of nitrogen must not exceed 20 kilograms per hectare unless a Farm Environment Plan is prepared and implemented.
If these requirements are not met, farming activity will generally require resource consent. The status of the activity and the ease with which consent can be obtained will largely be determined by the location of the farm. Different “coloured” areas have been identified on the planning maps depending on whether or not the desired water quality outcomes are being achieved in that location. Where they are not, any resource consent application is likely be declined.
In addition to these general controls on farming, there are a range of other rules targeted towards specific farming activities to ensure that water quality is not compromised. These include rules limiting offal and farm rubbish pits, stock holding areas, silage pits and fertiliser use, among other activities.
In relation to water quantity, all proposals to take and use water from lakes, rivers and groundwater require resource consent. Whether or not consent is granted will depend on whether the proposal complies with the allocation limits and minimum flows that are now specified in the LWRP. Where limits have not been set, a standard process is provided to determine the appropriate limit. Any proposed take of water must, in combination will all other consented takes, comply with these specified limits. If these limits would be breached by allowing the proposed take, resource consent will generally not be granted.
In addition to farming and the take and use of water, the LWRP controls a wide range of other activities throughout the Canterbury region. These activities including matters such as the management of wastes, pest control, hazardous substances, discharge of contaminants, vegetation clearance, new forestry planting in flow sensitive catchments and activities in lake and riverbeds. While some of these rules are similar to those that existed in the NRRP, others introduce significant changes that are either less or more permissive than the rules they replace. These provisions need to be carefully assessed in order to understand the impact of the LWRP on other activities.
Legal effect and process
An important point to note is that although the LWRP is still only proposed, the rules within the Plan have immediate effect. This means that until the LWRP becomes operative, all new activities must comply with the rules in both the LWRP and the NRRP. There is a limited exemption under the RMA for the continuation of existing activities that were previously permitted under the NRRP. These activities may continue until the LWRP becomes operative, provided that certain conditions are met.
Once the LWRP becomes operative (likely to be the end of 2013), the relevant chapters of the NRRP will be revoked. From this time, only the LWRP rules will apply. Any person carrying out existing activities that breach the new rules will then have a maximum of six months to apply for resource consent and will be allowed to continue their activities until the consent application is determined.
The LWRP is currently open for public submissions until 5 October 2012. Any person may lodge a submission seeking changes to any of the provisions of the LWRP. This will be followed by a public hearing of submissions, which is expected to occur in early 2013.
Unlike a usual plan process under the RMA, there will be no rights of appeal to the Environment Court, only appeals rights on points of law to the High Court. This makes it particularly important for interested parties to participate in the submission process if they wish to see any changes made to the LWRP provisions.
The LWRP is the most significant new planning document to be notified by Environment Canterbury since the Commissioners were appointed in 2010. It has a clear focus on water and seeks to implement the national and regional guidance that has been developed on this topic over the past few years.
By setting specific limits on water quality and quantity, the LWRP will have an immediate and widespread impact on land and water users throughout the region. In particular, the proposed regulation of farming activities is unprecedented in Canterbury and represents a significant change from the current provisions of the NRRP. There is also a wide range of new rules introduced that will impact on a large number of existing and future activities.
Any person with an interest in these matters should consider making a submission on the LWRP setting out any changes they propose and explaining the reasons why. This will be the only real opportunity to influence the content of the LWRP become it becomes operative.
Disclaimer: This is a brief summary for information purposes only and is not legal advice.
Posted on Thursday 6th September, 2012 at 10:05 am