Time to check out your consents

By Hans van der Wal, Associate

First published in The Rural News 18 August 2009

With 1 September just around the corner, many farmers will be turning their thoughts to starting irrigation or gearing up to full milk production – and, therefore, irrigating effluent. This makes it a good time to check the state of your consents or permitted activities.

The Courts have made it clear that the onus is on those wanting to rely on resource consents or permitted activities to ensure they can comply fully with all the conditions. Breach a condition and you’re just as guilty of an offence as someone who has no consent at all. What’s more, unless you choose to be tried by a Jury, the Court of Appeal has determined that it’s up to you to prove that you were complying with the consent conditions – not the council that’s prosecuting you. So saying you didn’t know about a special requirement contained in a condition is not going to help if you are prosecuted.

This means you need to be on the front foot, so before you start irrigating:

Check whether your resource consent is still current – if not, do not irrigate until you have a new consent.
If your consent is still current, or if you are relying on a permitted activity rule:
Read all the conditions carefully and make sure you can comply;
Ensure your employees are aware of the conditions – putting a laminated copy by the pump switch is a very good idea
Check that your irrigation equipment is in good order, as breakdowns can lead to ponding and run-off, which will generally be a breach of conditions;
Keep a good eye on equipment that is being used – particularly effluent irrigators, so that irrigation can be stopped if any breakdowns, ponding or run-off happen
If there are malfunctions, shut down immediately and record the breakdown and action taken to repair. Only start up again once the equipment is fully functional.
Make sure the land you’re irrigating is within the area designated on your consent.

Water Irrigation in particular:

If there is a low flow condition on your consent, have the Council’s low flow infoline or website easily available – on the same laminated copy as the conditions – and make it compulsory for all operators to check that before switching on pumps on any day.

Effluent Irrigation in particular

Check levels in ponds and sumps regularly, to make sure there is enough spare capacity to avoid overflows

The Resource Management Act does have special defences designed to ensure you do not get convicted if you did everything you could reasonably have been expected to do to avoid breaches of your conditions.

Accidents do happen, but at least if you’ve taken the steps above, you stand a good chance that you will meet the requirements of one of the RMA’s defences and avoid a conviction or fine.

Location http://www.duncancotterill.com/index.cfm/1,159,575,0,html