Existing Use Rights and Plantation Forestry


Introduction

Historically there has been considerable uncertainty about the extent to which existing use rights (EURs) under section 10 of the Resource Management Act (RMA) apply to planation forestry activities.

The recent Environment Court decision of Mawhinney v Auckland Council [2018] NZEnvC 15 provides clarity to the forestry sector that EURs are available to the full cycle of plantation forestry activities provided that appropriate evidence can be adduced to meet the statutory tests at s10 RMA.

In addition the Court makes a number of passing comments regarding plantation forestry that, although not essential to the decision, are of interest and may inform or guide future Court decisions.


Context

The applicant sought a declaration from the Court that the owners and others with an interest in the land have a right under s10 RMA to carry out the planting cycle of tree crops that had occurred since 1984.

In opposition, the Auckland City Council argued that the applicants had discontinued the use of the land for the cycle of harvesting pinus radiata for more than 12 months which meant that EURs had not been established. Consequently, the Council argued, the applicant would need to apply for resource consents for land disturbance to harvest the forest under the district plan.


The law

EURs are statutory rights provided under the RMA that allow land to be used in a manner that does not comply with the rules in a city or district plan.  They are intended to protect established activities from changes to planning rules and allow them to continue without the need for resource consent.

There are three key requirements for a landowner to prove that EURs exist: 

  1. The activity must have been lawfully established as a permitted activity prior to the new rules becoming operative;
  2. The activity must not have been discontinued for longer than 12 months since the new rules became operative; and
  3. The effects of the activity must be the same or similar in character, intensity and scale to the effects of the activity before the new rules became operative.

The onus is on the person who claims that EURs exist to provide evidence demonstrating that these requirements can be met. The required standard of proof is to the balance of probabilities (i.e. it is more likely than not that the requirements can be met).


Application of the legal test to the facts

Regarding (1) above, the Court considered a large volume of evidence and held that forestry was an established land use on the date that the relevant planning instruments first came into force.  In terms of (3) above, the Court found that the character, intensity and scale of forestry activities were the same or similar to when the land was first used for forestry purposes.

Regarding the pivotal requirement at (2) above, that the activity must not have been discontinued for longer than 12 months, the Court noted that EURs can apply to cyclical and long-term activities. The Court found that in the context of forestry, EURs could apply to the entire cycle of forestry. This included preparation, planting, growing and maintenance, harvesting and removal of trees. In addition, ancillary activities were accepted as part of the land use, including construction of tracks, landings and roads and removal of understorey and adjacent vegetation.

The Court explained that for some species, such as pinus radiata, this cyclical process may take place over a 25 to 35 year period before the cycle can begin again. The Court held that:

 “The fact that there is a gap of (say) 30 years between the first planting and the second does not mean that the existing use has been discontinued under section 10(2) of the RMA. On the other hand, a gap of more than 12 months between termination of felling and new planting might trigger section 10(2) RMA.”


 The decision

The Court declared that the applicant has EURs which gave them the privilege of undertaking the whole forestry cycle from planting to harvesting over 89 ha of forest. As a result the applicant was not required to obtain resource consents for land disturbance and vegetation removal to prevent contravention of rules in the district plan.


 Other comments of interest

After noting the potential adverse effects of exotic forestry species recognised by the Auckland Unitary Plan, the Court commented that forestry for harvesting also has beneficial medium-term effects on climate change in that trees absorb CO2 from the atmosphere.

Further, in finding that growing of trees for timber is cyclical and runs with the land, the Court adopted the principle that “… permission to plant exotic forest implies the permission to harvest”. This principle has been accepted in earlier case law and is based on the concept that the majority of forestry activities are indivisible, meaning the activities are linked in a way that each activity is necessary for the entire cycle to occur.

Finally, the Court noted that if EURs include the removal of vegetation (not simply understorey) which is inside significant ecological areas, or is for the purpose of track maintenance or is within a riparian area, then it doesn’t matter what the district plan rules say: the use may be continued as an existing use.

It’s important to note that the above comments and the decision relate only to land use rules in a district plan. The Court explained that although EURs are available under s20A RMA in respect of activities regulated by a regional rule, the duration of any such EURs is much more limited. Section 20A provides only a temporary exemption from the need to obtain resource consent under the relevant regional rule for a limited period of time.


Implications for the forestry industry

Mawhinney v Auckland Council is an important case for the forestry sector because it clarifies that the lengthy period between planting and replanting does not mean that the existing use of plantation forestry has been discontinued. The decision confirms that, when supported by appropriate evidence, plantation forestry is an activity that can be granted EURs and, further, that such rights will incorporate the entire cycle of the forestry process, including ancillary activities. 

The case provides useful guidance for foresters that are interested in exploring whether EURs may be available for an activity that would otherwise require consent under a district plan or the NES for Plantation Forestry (in respect of regulations administered by district councils only).

It is important to note that establishing EURs requires a solid evidential foundation and will depend on the facts of each case. In some circumstances a simpler and more attractive option will be to apply for resource consent for the proposed activity. Alternatively, in some cases it may be commercially more practical to alter forestry operations to achieve compliance with the relevant planning rules. 


Disclaimer: This is a brief summary for information purposes only and is not legal advice

 

Posted on Thursday 9th August, 2018 at 02:25 pm