Equal treatment of stock drinking watertakes

Provide for equal treatment of stock drinking watertakes

Problem

508. Sector groups have raised concerns with us that the interpretation of section 14(3)(b)(ii) of the RMA (which allows for drinking water for stock) being used by some regional councils is restricting access to stockwater.

509. Section 14(3)(b)(ii) allows an exception for the reasonable needs of an individual’s animals for drinking water, but does not define individual. Some regional councils limit individuals to natural persons only and exclude companies and trusts, and are therefore requiring farms to have a consent for their stock drinking water because the farm is in a company or trust structure. There is potential for this to be a reasonably significant issue for farmers taking water for stockuse.

510. Many farms are run with either company or trust structures in place, leaving many rural businesses exposed to litigation without being aware of this (given the potential of third parties to challenge the interpretation of different regionalcouncils).

511. Both the Horizons and Canterbury regional councils have strictly interpreted individual as meaning a natural person only, although Canterbury have indicated that they intend to take a pragmatic approach. Others like the Waikato Regional Council allow water to be taken for reasonable stock drinking purposes, regardless of who owns the animals, provided that there are no adverse effects on the environment. Another group of regional councils is silent on how individual should be interpreted. The range of interpretations leads to uncertainty and debate during planning and consenting processes, and correspondingcosts.

512. Limiting the right to take stock water to natural persons means that water takes and uses may be regulated based on the nature of ownership of stock rather than the potential environmental effects of taking stock water. For example, provided an adverse environmental effect does not occur, a farmer who operates as an individual (rather than through a company or trust) and owns 1500 cows may be allowed to take water for those cows without needing a resource consent. On the other hand a neighbour, that owns 100 cows under a family trust can only take water for those cows if there is a rule in the regional plan allowing the take or the trust has a resourceconsent.

Proposal

513. This proposal is to amend section 14(3)(b)(ii) of the RMA to replace the term “individual” (which is not defined) with the word “person” (which is defined in the RMA as including both natural and legal persons). This would ensure the right to take water for a person’s stock could be limited in plans based on the reasonableness of the take and whether the take is likely to have an environmental effect; but not whether it is a natural person, trust, or company that owns thestock.

514. The benefits of this proposal is that it would provide certainty in all regions once section 14(3)(b)(ii) is amended and plans have been amended as required to define the scope of section 14(3)(b)(ii) takes. While there would be short-term medium costs to regional councils to amend plans, and low costs to users to engage in subsequent plan change processes, the distinction between natural persons and companies/trust would be removed meaning a more equitable approach to managing environmental effects rather than classes ofuser.

Alternativeoptions

Non-legislativeguidance

515. Guidance would explicitly clarify section 14(3)(b)(ii) and the term “individual” so that councils consistently interpret and implement it. This would lead to certainty in all regions once plans have been amended to conform to new guidance and legal advice. There will be short-term low costs to central government to develop guidance, medium costs to regional councils to amend plans to conform with guidance, low costs to users to engage in plan change processes, and high costs to users who subsequently require a consent for their take of stockwater.

516. However, the main disadvantage of non-legislative guidance is that it is not legally enforceable. Councils could therefore choose to continue to interpret this section in inconsistent ways, or not adopt the approach outlined in the guidance material in a timely fashion.

517. Moreover, guidance favouring the wider interpretation of “individual” would be strained given other statutes (eg, the Unsolicited Electronic Messages Act 2007) which define ‘individual’ as a natural person, rather than a legal person. Straining the meaning would add to the risk of councils not implementing theguidance.

Conclusions

518. On balance, this proposal would provide the most certainty for regional councils and resource users in relation to the rules that apply and equitable management of the environment effects of water takes and use, with minimal costs to resource users, government and regionalcouncils.