High Court to rule on RMA status of farming land covered by big floods

Wednesday, December 12, 2018

The High Court is set to rule soon on whether to confirm that land on floodplains and other areas covered by big floods (which only occur once every 20-50 years) is within the “bed” of the “river” for the purposes of the Resource Management Act 1991 (RMA). If it does, it will confirm that the RMA’s strict riverbed protection requirements apply to these areas and land uses will have to change drastically or resource consents be obtained. This follows an appeal to the High Court against the way Environment Canterbury (ECan) has been applying the RMA riverbed definition and the District Court’s endorsement of that approach, which sees such areas being treated as part of the “bed” for the purposes of the RMA. Because it involves an RMA definition that applies throughout New Zealand, its result will affect farmers outside Canterbury as well. 

The Appellants say the floodplains are outside the ordinary “banks” of the river, therefore outside the “river” and its “bed” and should not have the same restrictions as the river itself. The Appellants say that regional councils can use rules to protect the special river-associated values of land next to the river, which Parliament never intended to be treated the same as the river itself. That would give the owners of such land the ability to have their say on whether that land needs protection and if so, how much.

ECan’s approach allows the floodplains to be part of the “bed”, because it takes the “banks” (legally the outer limits of the “bed”) to be something other than the ordinary “banks”. It sees them as features (like terraces) that would contain very big and infrequent floods that would often cover the flood plain, outside of what most people would see as the “banks”. In those areas it removes the distinction between the riverbed itself and floodplains, as far as the RMA is concerned. ECan says that is necessary to protect natural values on this land, which exist because of the river, and to allow the river to move naturally through its braid plains.       

Because most activities associated with farming (like any kind of excavation, disturbances or placement or use of structures) will require consent on land if that land is classed as “riverbed” for the RMA unless there are specific rules or a resource consent authorising them, the implications for farmers are significant. Given how much farming occurs on floodplains or on land close enough to rivers to be covered by big floods, the High Court’s decision will affect many farmers, who may need to change drastically what they do or get resource consents for the affected land. Contrast this with land outside the riverbed, where consents are only required if there is a specific rule requiring them.

We expect to have the High Court’s decision soon enough to address it in our next update. 

For more details, contact Hans van der Wal in our resource management team.

Disclaimer: the content of this article is general in nature and not intended as a substitute for specific professional advice on any matter and should not be relied upon for that purpose.