Court to rule on $100m Mackenzie dairy conversion

Rules governing a controversial Mackenzie Basin dairy conversion are being tested in court. David Williams reports.

The country’s most controversial dairy conversion continues to encounter hurdles to its $100-million-plus project.

Last July, Greenpeace protestors chained themselves to diggers working on the irrigation pipeline to the Mackenzie Basin’s Simons Pass Station, for what it called a “mega dairy farm”. About 4500 hectares of the property, near Lake Pukaki, is to be irrigated, in a conversion that should eventually contain about 5500 cows and 10,000 other stock animals.

While the station’s owner Murray Valentine, a Dunedin businessman, has accumulated dozens of approvals and pre-approvals for the intensive dairy farm, his company is still barneying with the local council about what can and can’t be done without permission.

The council has asked the Environment Court to make several declarations about whether Simons Pass Station – a hybrid of freehold and Crown pastoral lease land – is following the rules for pastoral intensification and agricultural conversion. Environmental Defence Society (EDS) has joined the court action to support the council. A hearing will be held next week.

The council’s approach to the court followed a complaint, last April, for work done on area of Simons Pass known as the outwash plains, an area of sand and gravel deposits from a melting glacier. If the company’s plans come to fruition, an area about 10 kilometres long is set to be peppered by more than 20 irrigation pivots.

(Late last year, 840 cows were being milked and 11 pivot irrigators were in place and being tested.)

Court clarification

EDS executive director Gary Taylor says: “The case will determine whether Simons Pass needs further consents for dairy conversion on part of the property. The declaration focuses on the meaning of ‘granted’ in the district plan and whether it refers to a decision of the regional council or the decision on appeal by the Environment Court.”

It continues the Environment Court’s pivotal role, over many years, in deciding the Mackenzie district’s planning rules.

The activities that potentially need consents on parts of Simons Pass are irrigation, and something called direct drilling – drilling seeds into unploughed soil. If the court rules a discretionary consent is needed, that gives the council the ability to approve or reject an application. If it’s deemed to be controlled, then the activity is permitted, with conditions.

A key issue in next week’s case, referred to by Taylor, is whether Simons Pass’s irrigation consent can be considered “granted”, in respect of district plan rules, before November 14, 2015, when the consent appeal wasn’t resolved, and deemed to “commence”, until October 2016. Another issue is whether the irrigation consent, granted by Canterbury’s regional council, properly addressed the potential landscape effects on such a sensitive area.

Proposed conservation land at Simons Pass. Photo: LINZ

Valentine couldn’t be reached for comment. But Simons Pass’s position is set out in memorandum to the Environment Court last October from Mackenzie council’s lawyer, David Caldwell. The company maintains no consent is required for direct drilling and it had “existing use rights” for pastoral management.

A letter to the council from Enspire Consulting Ltd last September said: “It is the applicant's view that ongoing farming activities on land that has already been converted for agricultural activities do not require consents each time activities are carried out. It is also noted that the application is made on the basis that the relevant receiving environment had been lawfully modified by 15 November 2015 and any further activities subsequent to that have simply maintained the modified pastoral environment that already existed.”

That position is an abandonment of its previous line, that Simons Pass had a certificate of compliance that authorised direct drilling. The council has asked Simons Pass to stop direct drilling on the outwash plains until the matter is settled. As a backup, last September, Simons Pass lodged consent for agricultural conversion and, specifically, direct drilling, while maintaining it didn’t need one.

“I would expect the council would properly brief any ecologist on the purpose of his survey.” – Pru Steven

While the planning issues covered by the court hearing are quite dry, correspondence between the Mackenzie council and Simons Pass’s high-powered lawyer, Pru Steven QC, offers a colourful insight into the issue.

Christchurch lawyer Steven berated the council for supposed “errors and inaccuracies”, and labelled its conclusions “quite wrong”. Council-commissioned reports about Simons Pass were dismissed as irrelevant and having “limited value”.

Regarding the clearing effect of direct drilling on native vegetation, Steven said the drilling was done lawfully, under proper exemptions. That included a visual inspection – undertaken by Simons Pass owner Valentine himself – to determine if non-native species were dominant.

Steven: “Mr Valentine made the decision that dominance of clovers and/or exotics had been achieved based upon his own visual inspection of the property and in consultation with his farm manager.” Expert ecological advice was also sought.

The lawyer also refers to a verbal exchange between the council’s consultant planner, Mike Harding, and Valentine during a site visit. Harding gave his opinion that clearance rules applied but acknowledged he was an ecologist not a planner.

Steven wrote, in a snappy tone, after the visit: “I accept that Mike Harding is not a planner, although I would expect the council would properly brief any ecologist on the purpose of his survey.”

Simons Pass and its associated farming infrastructure has been a lightning rod for criticism. An irrigation pipeline to the station was laid across public conservation land, with approval by the former Commissioner of Crown Lands. Last year, the regional council was accused of confirming Simons Pass Station’s resource consent before all conditions had been met.

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