The decision to allow high-country irrigation has been upheld in a landmark High Court decision for development of land in dry high-country catchments such as the Mackenzie Country.
The Royal Forest and 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 council case involves farmland also designated as part of the council's scenic rural zone.
Forest and 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 council'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 and Bird tried to use the court action to win a battle it had already lost in the drafting of the council's District Plan in 2006 to make irrigation a "non-complying activity in the rural scenic zone".
Justice French did not agree.
Forest and Bird had a similar case before the courts involving the Mackenzie Country and the precedents on conditional certificates and cropping were useful, Forest and Bird South Island conservation manager Chris Todd said.
"But it's disappointing for us that the court took a narrow definition of native vegetation clearance," he said.
The judgement was too fresh for the environmental body to consider appealing.
The judgement 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.
Mr Joyce argues greater agricultural intensification is essential for achieving higher economic growth rates.
Justice French said in granting a compliance certificate for Five Rivers' plans without a resource consent, Waitaki District Council was wrong to rely on the farmer's assertion its activities would be compliant when it appeared its plans might not be.
"It was incumbent on the council to do more than just rely on the bare assertion of the applicant," Justice French said, in one of her last High Court judgements since being elevated to the Court of Appeal last month. - BusinessDesk
