The land and water plan has been developed to align with current national direction and the regional policy statements. Below are some questions that you might have if you hold existing resource consents, operate under permitted activity rules in the current plans and/or are planning to undertake new activities that might affect land and water. If you have any other questions, please email:  Policy@ORC.govt.nz and we will get back to you directly.

 

  1. Will there be permitted activity rules in the pLWRP?

Under the RMA, there are a number of activities[1] that need to be permitted by a national environmental standard, a rule in a regional plan or a resource consent in order to be undertaken. This means that these activities must have a permitted activity rule or consenting framework available in a regional plan.

This is different to activities on land where if a plan does not mention the activity, it is permitted and there does not need to be a permitted activity rule in a plan.

The land and water plan has many permitted activity rules to ensure low scale, low effects activities do not need to obtain consents.

  1. The Government’s Resource Management (Freshwater and Other Matters) Amendment Bill has proposed changes to Intensive Winter Grazing consent requirements, stock exclusion requirements and the need to consider the Te Mana o te Wai hierarchy of obligations in consent applications. How does this affect the Land and Water Plan and my consent requirements?

Intensive winter grazing and stock exclusion

The Government is proposing to repeal the regulations and conditions for intensive winter grazing from the National Environmental Standards for Freshwater (NES-F) and to repeal the low slope map and associated requirements from the Stock Exclusion Regulations. The Government has signaled that it will be up to regional councils to manage these activities within their region. The Council’s Policy Team is working with Farming Industry bodies to develop rules for these activities in the pLWRP.

For Intensive Winter Grazing in 2024, Council advises the following:

  • Operate in line with good management practice including having a grazing management plan.
  • If you do not have a consent continue to meet the permitted activity rules in the regulations.
  • Continue to operate in line with the conditions of your resource consent which provides certainty in a time of regulatory uncertainty
  • Please contact our Consents Team if you are thinking about applying for a consent for winter 2024.
  • The grazing management plan template can be found here.

 

Te Mana o Te wai hierarchy of obligations

The Government’s proposed changes to the National Policy Statement for Freshwater Management (NPS-FM) are to exclude the hierarchy of obligations from resource consenting. Until this Bill becomes law, the Te Mana o Te Wai hierarchy of obligations will continue to be considered in consent applications.

The proposed changes to the NPS-FM do not relate to plan making and the Te Mana o Te wai hierarchy of obligations will continue to be considered in the drafting of the pLWRP.

 

  1. How do Freshwater Farm Plans interact with the pLWRP?

The rollout of Freshwater Farms Plan in Otago is currently paused. Central Government has indicated that Freshwater Farm Plans will remain but that changes to the system will be made. The details of these changes have not yet been released. Council will adjust to these future changes once they become clear. Council staff will continue to be across changes made by Central Government and will update resources and documents to meet any new or amended legislation, as required.

 

The use of farm plans as a pathway for a number of farming activities is being considered in the pLWRP. This means that the activities will be able to be managed through the farm plan instead of applying for a consent.

 

  1. My water take/discharge permit expires in 2025. Should I apply to replace it before the pLWRP is notified?

There are no restrictions on when you can apply to replace a consent. If you are applying to replace a consent for substantially the same activity[2], we recommend that you apply at least 6 months before your consent expires. This will allow you to keep operating under your current consent while your application for a replacement consent is being processed by Council. Note: If you do not apply for a replacement consent 6 months before your consent expires there is no guarantee that you can use your current consent once it expires, if a consent decision on your new application has not been made[3].

 

For example: if your consent expires in April 2025, it is recommended that you have an application lodged and formally accepted by Council by September 2024.

 

The below are worth considering when deciding whether you lodge a replacement application before or after notification of the pLWRP:

  • Any application lodged and decided before notification of the pLWRP will not have to consider the pLWRP. The decision maker will have to consider the rules, objectives and policies in the current regional plans (including the Regional Plan: Water) and all other relevant existing legislation (e.g. national policy statements on freshwater and renewable electricity generation) as well as the operative RPS and the decisions version of the pRPS[4].
  • The time it takes to process a consent varies. The Council has 20 working days to process a consent that does not require public or limited notification. Additional time may be required if further information is needed to understand the activity and its effects, or if you choose to seek written approvals before a notification decision is made. For an application that is comprehensive in relation to the scale of the activity and that is unlikely to have affected parties, lodging an application well in advance of 31 October will increase the chance of a decision being made before notification of the pLWRP.
  • The Council will have updated application forms, template reports and conditions that relate to the pLWRP by the notification date. Consents staff will receive training on the pLWRP and what it means for consent processing. This will minimise extra time with processing your replacement application if it is not decided before notification of the pLWRP or is lodged after notification of the pLWRP.
  • For water permit replacements to take and use water, the Regional Plan: Water currently provides for replacements of water permits based on historic use and with limited environmental effects assessment. These permits can be granted for terms of up to 6 years. When the pLWRP is notified, the consents team will consider both the Regional Plan: Water rules and pLWRP rules that relate to the take and use of water and the strictest rule will apply. When a decision is made on the water take application, both the Regional Plan: Water and pLWRP rules, objectives and policies will be considered. Weighting to the policies and objectives will be applied depending on a number of factors including how far through the planning process the pLWRP is[5]. Council will update existing guidance to support water permit holders during this period.
  • The below table provides an indication of what can be considered at different stages in the plan process when considering regional plans. Note: the below table only relates to regional plan requirements. There could be rules, objectives and policies in national planning documents (i.e. national environmental standards) that also apply to the activity and would need to be considered:

 

Table 1: Activity status and objective and policy assessment of regional plans at different times in the plan making process

Application lodgement

Dates

Activity status of application (i.e. whether it is controlled, restricted discretionary, discretionary or non-complying)

Objective and policy assessment of Regional Plans

Application lodged and decided before LWRP notification

Before end of October 2024

Activity status based on RPW[6] and/or RP:Waste[7] rules

Objective and policy assessment of RPW and/or RP:Waste only

Application lodged but not decided before LWRP notification

Lodged before end of October 2024 and decided after notification date

Activity status based on RPW and/or RP: Waste rules that applied when the application was lodged

Objective and policy assessment of RPW and/or RPW: Waste and pLWRP. Weighting to be given to plans based on case law[8]

Application lodged after LWRP notification and before LWRP is beyond legal challenge/operative

Lodged after notification date (around end of October 2024)

Need to consider the RPW and/or RP:Waste and pLWRP rules and the most stringent activity status will apply[9]

Policy assessment of RPW and/or RPW: Waste and the pLWRP.

 

Weighting to be given to objectives and policies based on the circumstances and case law[10]

Application lodged after LWRP is beyond legal challenge/ operative

Likely to be in 2026/27

Only consider the LWRP rules

Only consider the LWRP objectives and policies.

 

 

  1. What rules do I need to consider for my current permitted activities and consented activities once the pLWRP is notified.

We appreciate that it can be confusing identifying what rules apply when. Table 2 below provides advice on what rule would generally apply between the pLWRP being notified and the rules in the pLWRP becoming operative. Questions 7 to 9 below are specific scenarios with further details[11]. For specific advice about your situation please contact consent.enquries@orc.govt.nz.

 

Table 2: Rules that apply after the pLWRP is notified

Current rule/s for the activity

Proposed rule/s in the pLWRP

What needs to be considered between notification of the pLWRP and the rules becoming operative

Comments

Permitted

Permitted

Both rules including all their conditions need to be complied with

Check both permitted activity rules. If the new permitted activity rule cannot be met then see the box [Permitted – consent required] below

Permitted

Consent required

If existing use rights apply (see below) the activity only needs to continue meeting the existing permitted activity rules.

After the new rule is operative there will be 6 months to apply for consent, stop the activity or change the activity to meet the new permitted activity rules.

Consent required

Permitted

Consent will continue to be required

The permitted activity rules and associated objectives and policies will be considered with weighting when a decision on the application is made

Consent required

Consent required

Consent will continue to be required. The most stringent consent rule will apply.

Both rules and relevant objectives and policies will be considered with weighting when a decision on the application is made

 

 

  1. I currently undertake many farming activities that are permitted (no consent currently required) and I understand that some of these might require a consent under the pLWRP. When do I have to get a consent by?

 

You will only need to apply for consents that may be required after the new rules are finalized (operative). From when the rules are finalised, you will have 6 months to either obtain consent, amend your activity to meet the permitted activity standards, or cease the activity.

 

The RMA provide for activities to continue to operate under existing use rights while the new land and water plan is being considered. These existing use rights apply when:

  • you have lawfully established[12] an activity and you have not stopped the activity for more than 6 months since the plan was notified[13] (e.g. you have an existing offal pit or farm landfill that you use);
  • the effects of the activity are the same or similar in scale, character and intensity from when the plan has been notified (e.g. where and what you discharge); and
  • the activity needs a consent to operate under the pLWRP.

 

It is likely that the land and water plan will not be operative until 2026 or beyond.  To support you in applying for consent, when it is time to do so, Council will prepare application forms, guidance materials and hold workshops.

Table 2 provide a checklist for to determine if you have existing use rights.

Table 2: Checklist for existing use rights

Is the activity lawfully established

 

Has the activity been occurring since notification of the land and water plan with no breaks longer than 6 months

 

Is the activity the same as before notification of the land and water plan

 

Is the activity currently permitted or no consent is required

 

Is consent required under the land and water plan

 

 

Note: If you seek to start a new activity that was not existing before the pLWRP was notified then you will need to consider the rules in the pLWRP for that activity. If consent is required, you will need to apply and obtain this before commencing the activity.

 E.g. If you have an existing feedlot and can meet Table 2 you will have existing use rights but if you decide to construct a feedlot and this is not in use before the pLWRP is notified you will need to obtain consent if you cannot meet the permitted activity rules in the pLWRP.

The Council will provide direction and advice on consenting requirements for specific activities once the pLWRP is notified. 

  1. I currently take water as a permitted activity. If the pLWRP makes this a consented activity, when do I need to get a consent by?

Refer to the checklist above. This approach applies to all permitted activities that would become consented under the land and water plan. 

If your current take was lawfully established, water is continued to be taken (with no breaks longer than 6 months) and there is no change to the maximum rates and volumes of water taken and what the water is used for, then you can continue to operate under the permitted activity rule in the Regional Plan: Water until the land and water plan is operative.

Once the pLWRP is operative, you must apply for a consent within 6 months, amend your activity to meet the permitted activity rule or cease the activity. If you lodge a consent application, you can then continue to operate under the permitted activity rule in the Regional Plan: Water until your consent application is granted.

  1. I can currently extract gravel, construct culverts and undertake works in the bed on my property under permitted activity rules. If the conditions on the permitted activity rules change under the pLWRP which rules do I have to follow when the pLWRP is notified?

If you can currently undertake activities using the permitted activity rules of the RPW or RP:Waste and if the pLWRP also makes your activity permitted, once the land and water plan is notified you will need to consider both plans’ permitted activity rules. You will need to make sure you are meeting all parts/conditions of each permitted activity rule in order for the activity to be permitted. 

If you cannot meet the new permitted activity rule in the land and water plan, you will need to apply for a consent within 6 months of the rule becoming operative (see 7 and 8 above) or change the way you undertake your activity to meet the permitted activity conditions. 

You need to consider both the current and proposed permitted activity rules and meet both to be permitted until the new permitted activity rule is finalised.

[1] related to the beds of lakes and rivers, water and discharges

[2] For further information on this refer to: Exercising your consent after it expires - Practice note

[3] For further information on this refer to: Exercising your consent after it expires - Practice note

[4] Copies of the oRPS and pRPS can be found here: Otago Regional Policy Statements (orc.govt.nz)

[5] For further information on this refer to: Consenting under proposed and operative plans

[6] RPW is Regional Plan: Water for Otago: Regional plan - Water (orc.govt.nz)

[7] RP:Waste is Regional Plan: Waste for Otago: Regional plan - Waste (orc.govt.nz)

[8] Key elements from case law: (1) the extent to which the proposed measure has been exposed to independent decision making (2) possible injustice to the applicant (3) the extent to which a new measure may represent a significant policy shift when compared to the provisions of the operative plan, or implement a coherent pattern of objectives and policies in a plan (4) Where there has been a significant shift in Council policy, and any new provisions accord with Part II of the RMA or the requirements of a national policy statement – then the objectives and policies in the proposed plan change may potentially be given more weight

[9] E.g. if in the RPW the activity is restricted discretionary activity but in the pLWRP the activity is discretionary, the activity will be processed as a discretionary activity.

[11] For further information on this refer to: Consenting under proposed and operative plans

[12] Lawfully established means that when the activity commenced it was compliant with all the relevant planning rules and regulations at that point in time e.g. it met any permitted activity rules that applied.

[13] The nature of the activity and when it is typically undertaken will be taken into consideration for this requirement. For a seasonal activity (e.g. Intensive Winter Grazing), the normal year round operation will be the basis for whether the activity has stopped or not.

[14] More information on when the RPW applies can be found here: National Environmental Standards for Plantation Forestry (NES-PF) (orc.govt.nz)

Page last updated 21 June 2024.