A four-year, $1 million court case between the Southland District Council and Peter Chartres of Te Anau Downs Station over land use rights and indigenous vegetation clearance has important lessons for other farmers, found a Federated Farmers case study.
The case was resolved in the Environment Court on 28 October 2022 with the Court declining the Council’s application for an enforcement order which the Council had sought to prevent any further indigenous vegetation clearance on the Station, and to require significant remedial actions to be undertaken.
A freehold operation, Te Anau Downs Station is surrounded by conservation land, including the Fiordland National Park. It is bisected by the Milford Road – the first part of which was originally constructed by Peter Chartres’ grandfather, John Chartres, in the 1920s.
Te Anau Downs Station has a long history of pasture development. This development included clearing away regrowth bracken, manuka shrub and exotic weeds from previously cleared areas to maintain and improve pastures.
The case study found that prior to 2001, the Southland District Council (SDC) had no restrictions on clearing of vegetation and maintaining/improving pasture.
However, in a district plan which existed between 2001 and 2018, regulation HER.3.2(c) permitted “[t]he clearance, modification or destruction of indigenous vegetation which has grown naturally on land cleared of vegetation in the 15 years immediately prior to this plan becoming operative”. Under the operative district plan (which the Chartres were charged) in effect from 22 January 2018, BIO.1.6 permitted “[t]he clearance, modification or removal of indigenous vegetation which has grown naturally on land lawfully cleared of vegetation since 2000”. The Council incorrectly argued that to maintain existing use rights, that the particular site on the farm needed to be cleared in the 15 years prior to the plan becoming operative.
The next question was whether the ‘use’ had a similar intensity, scale, and character. To this issue, the SDC argued that because the farming activity increased in scale, that the (vegetation) clearance itself also resulted in a change in scale. However, the Court found that the argument was flawed because the farming activity was permitted, the only ‘use’ that could be the subject of an enforcement order was the clearance.
The Environment Court said that it was an impossible feat to keep on top of the regeneration rate at which the regrowth occurred across the whole of the Station on a continuous basis. The vegetation on a particular site on the farm may regrow in 15 years or 30 years. If the Chartres continued to clear vegetation on some sites on the farm, that would maintain the existing use rights to clear vegetation on the entirety of the farm. This episodic occurrence must be accounted for as to whether existing use rights apply to the activity of indigenous vegetation clearance undertaken by Chartres. ‘Most clearances appeared to have occurred on a more regular cycle, we doubt that a recurrence of clearance every 60 years (or thereabouts) which only applied in discrete areas across the Station, would be sufficient to maintain existing use right’ read the case study. However, because the vegetation clearance was fundamental to the farming system as a whole, a site that had been cleared 60 years ago would maintain its existing use of vegetation clearance to maintain and improve pastures.
The Court noted that there is no obligation on a farmer to allow indigenous vegetation to regrow into indigenous forest.
Key points for farmers
Existing use rights require precise consideration of the relevant District Plan Rules. The ‘use’ that is existing will need to align with the District Plan Rule. ‘Use’ can be rotational or cyclical use over the entirety of your farm. The fact that you have not used a particular area of your farm for over one year (or 60 years) does not mean that you do not have existing use rights.
The ‘use’ must be of the same scale, intensity, and character. This is why the ‘use’ that you are advocating for is so important. If it is only clearing indigenous vegetation, then it is irrelevant whether the clearing increases pasture and stock units.
A precise record of when clearing occurred will assist you should you ever need to rely on existing use rights. In this case, the Council relied on aerial photographs and tree rings, both of which failed to identify the indigeneity of the vegetation as well as an accurate age.
