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Indigenous Vegetation Clearance: Cancellation of interim enforcement order

May 2014... Jan Caunter and Bridget Irving have recently had a significant win in the Environment Court, successfully overturning an interim enforcement order made against our client, Dougal Innes. This case - summarised below - highlights a potential trap for owners of Rural General land within Queenstown Lakes District. If you have any questions about how this case might affect you, do not hesitate to contact us.

Mr Innes has recently purchased a large area of land at South Hawea and was preparing that land for sowing and irrigation in time for winter.  In his due diligence at the time of purchase, he had approached Queenstown Lakes District Council about the need to obtain resource consent to clear indigenous vegetation on the land.  The planning officers he met at the Council had no information available to them at that time to suggest that resource consent was required. Mr Innes therefore proceeded with the vegetation clearance and cultivation of most of his land in readiness for sowing.

Having observed the cultivation, Forest and Bird raised its concerns with the Council, claiming the land in question to be protected because of the presence of significant indigenous vegetation on the property. When the Council did not act to stop the cultivation, Forest and Bird obtained interim enforcement order from the Court to stop the cultivation, also seeking remediation of the land through a final enforcement order process to follow.  The interim order was obtained from the Court without notice to Mr Innes or the Council.

The order put a total stop to everything Mr Innes wanted do with the land, including grazing, fertilising and irrigation. Being unable to use his land for its intended farming purpose, Mr Innes was significantly prejudiced by the interim order.   As a result an urgent application was made to the Court to cancel the interim order. A hearing commenced in Queenstown just over a week later, taking four and a half days to complete.  The Court carefully considered evidence and legal submissions on behalf of Mr Innes, the Council, Forest and Bird, an adjacent landowner Jim Cooper and Federated Farmers and decided that the interim order should be cancelled. It noted Mr Innes’careful efforts to endeavour to comply with the District Plan and his reliance on the advice received from Council officers that consent was not required.

The evidence showed that the Council had instructed an external consultant to survey and report on land in the District containing significant indigenous vegetation and that the land Mr Innes had agreed to purchase had been surveyed. Through a draft report, the land was recommended for protection. However, that draft report had not been provided to the landowners in question and was not known to the two Council planning officers who had met with Mr Innes. The Court also found that there was likely to be indigenous vegetation in the remaining uncultivated areas of the that could well require resource consent should Mr Innes wish to cultivate further.

The proceedings highlighted very real problems with the interpretation of the Council’s indigenous vegetation clearance rule, the Court noting in its decision that “we are dealing with a rule no-one could reasonably claim to be easy to understand”and that the rule “is unacceptably fraught with complexity and uncertainty”The Court has asked the Council to reconsider the rule urgently.

The extreme steps taken by Forest and Bird resulted in significant costs to Mr Innes with potential long term effects that could have been very detrimental. Similar circumstances could apply to any number of other landowners in the area and until the rule can be clarified we are recommending land users proceed carefully. The Court has indicated that it will release a second decision discussing, in further detail, the interpretation of the Indigenous Vegetation Clearance rule. We will be updating you as this comes to hand.