Judge gives short shrift to fretting on water rules

JON MORGAN
Last updated 06:18 30/07/2013

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Farmer bodies appealing against the Environment Court's imposition of a tough plan to control nitrogen leaching into waterways have been told not to indulge in "generalised condemnation" of the plan.

In the High Court at Wellington yesterday, Justice Stephen Kos made it clear at the start that the appeal could cover only questions of law.

The Environment Court ruled that, under the Horizons Regional Council's One Plan, the measurement of nitrogen leaching would be by a scheme that used the computer program Overseer to model leaching on a range of land classes.

Federated Farmers says the One Plan goes too far and will make some dairy farms uneconomic. Horticulture New Zealand says its growers should not be in the plan.

HortNZ lawyer Helen Atkins told the judge the Environment Court was wrong in law to include commercial vegetable growing because Overseer could not be relied on and was based on pastoral farming.

None of the region's vegetable growers would get a "controlled activity" consent under the regime approved by the Environment Court, she said.

However, Justice Kos pointed out that the Environment Court's decision accepted that Overseer would be a problem and, in its code of practice, allowed for an alternative program to be used.

"I'm struggling to see what your problem is. You can't tell me this code doesn't work."

Ms Atkins said horticulture should not be in the scheme. Horticulture's impact was much less than dairy and, as its land lay fallow for some years, it was not as heavy a leacher.

She said the Environment Court had also erred in not taking account of the Government's National Policy Statement on freshwater management. The court had said the NPS had been released too late in the process to be considered.

She asked the High Court to refer this back to the Environment Court for reconsideration.

Federated Farmers lawyer Richard Gardiner said the federation agreed with many of HortNZ's submissions.

Parts of the scheme setting out leaching limits in tables were illogical and unreasonable. "I don't see how you can set up a table using one model and make assessments against it using another," he said.

He said the Environment Court had exceeded its jurisdiction, in effect creating a new policy in approving a plan that was markedly different from an earlier version.

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- The Dominion Post

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