Let's talk law: New environmental laws

The "burden of proof", as we lawyers say, falls on the landowner, not the council. Photo / File

Brought to you by Treadwell Gordon

If you are looking for a career in a growth industry, I recommend ecology.

Certainly there is going to be an abundance of work in this area, if new laws are passed relating to our native flora and fauna.

The law changes will be significant, particularly, but not exclusively, to our rural community.

If the law is enacted in its current form, or even something similar, ecologists will be as important as planners, surveyors and lawyers.

The Government has a draft policy statement out for public consultation. It is known as the National Policy Statement for Indigenous Biodiversity.

Obtaining a copy of the draft policy statement is relatively simple, go to website https://www.mfe.govt.nz/publications/biodiversity/draft-national-policy-statement-indigenous-biodiversity

Submissions close on March 14.

A brief summary of the proposals is as follows:

1.Territorial authorities (local councils) have to identify those areas of indigenous biodiversity within their territory (i.e. all significant areas of native bush or where native wildlife live) which will be identified as Significant Natural Areas (SNAs)

2.Within a SNA, activities may be restricted. This will be judged upon four criteria:
•representativeness
•rarity and distinctiveness
•diversity and pattern
•ecological context

3.If any one of those criteria applies, then the activity will become restricted in some way.

4.Most significantly, the proposal records that councils must adopt a "precautionary approach". This means it will be upon the landowner to prove that the proposed activity will not affect the flora and fauna. The "burden of proof", as we lawyers say, falls on the landowner, not the council.

5.These activities do not just extend to clearing scrub or building a track. The activities extend to any form of subdivision, use or development. It is noted that a renewal of a resource consent is a "new" activity. Notably, and the purpose of this item, is to note that farming is an activity which may be restricted.

6.

Existing activities will have some protection for so long as they have the same character, intensity and scale. But, essentially it will tolerate only the status quo. Effectively, a standstill. It may not tolerate improvement such as greater intensification and consequently, greater production or profitability.

7.

There is also a second area outside the SNA which may be caught. If a proposed activity is outside and SNA, the council is entitled to take into account the effects that the proposed, or actual, use of the land will have on the biodiversity of the nearby SNA. The simplest example is that if and SNA is "downstream" from your property, you may be restricted in your activity.

8.And, surprisingly, there is even a third tier of regulatory review, as it impacts on the SNA. It relates to "highly mobile fauna". That is, birds. If there is a prospect that native birds within and SNA nest, rest, feed or travel over your land, you may have restriction in your activity.

9.The proposal also allows for councils to set in place a target for a percentage of indigenous vegetation. Urban areas have been signalled a target of 10 per cent, but it is thought that the rural environment may be less. There may be cases where farmers are required to "close-up" some of the land.

It is not yet clear to me how enforcement will be applied, but certainly once the local councils have produced their new district plans, including any related regional policy statements, it is likely that any time you require some form of regulatory consent, the council will require from you an ecology report showing the impact of your proposed activity will have upon the local flora and fauna.

Whilst the principles behind the new policy are laudable, application of it will have some significant costs and considerable development consequences.

Yep, become an ecologist. There will be no shortage of work. Council officers won't want to say no, but they will want someone else to say no for them. More so if the landowner pays that ecologist to say no for them!

Richard Austin from law firm Treadwell Gordon. Photo / File