The clearance of indigenous vegetation is commonly controlled by district councils through district plans, pursuant to section 31(1)(b)(iii) of the Resource Management Act 1991 (RMA). District plans often contain rules and/or sub-zones which seek to protect significant natural areas from development and require landowners to obtain a resource consent to remove indigenous vegetation.  

The recent Environment Court decision in Federated Farmers of New Zealand v Manawatu-Wanganui Regional Council [2011] NZEnvC 403 confirms that regional councils also have the ability to control the clearance of indigenous vegetation through rules in a regional plan.  

Factual background

Federated Farmers of New Zealand lodged an appeal against Manawatu-Wanganui Regional Council's proposed regional plan which included:

  • A policy that gave the regional council responsibility for developing objectives, policies and methods for establishing a region-wide approach to maintaining indigenous biological diversity
  • A policy allocating responsibility for rules controlling the use of land to protect significant areas of indigenous vegetation and to maintain indigenous biodiversity to the regional council
  • Rules governing vegetation clearance and forestry.  

Federated Farmers sought a declaration that the "control of land use in respect of indigenous biological diversity is deemed to be the responsibility of territorial authorities." Federated Farmers argued that all powers given to regional councils in respect of land use are only to be found within section 30(1)(c) of the RMA which contained no power to control the uses of land for biodiversity purposes.  

The Environment Court held that regional councils have the power to specify objectives, policies and methods (including rules) to control the use of land for the purpose of maintaining indigenous biological diversity pursuant to sections 30(1)(ga) and 62(1)(i) of the RMA.  

Consequently, there is an overlap of responsibilities for district and regional authorities in respect of indigenous biodiversity.  

Implications of the decision

While the power to control land use in respect of indigenous biodiversity was traditionally thought to be solely within the realm of a district council's authority, regional councils must consider, to the extent necessary in their region, whether to develop objectives, policies, methods and rules for managing indigenous biodiversity. Regional councils may be more willing to exercise this power if there are indigenous vegetation issues that cross territorial boundaries.

The role of regional councils in indigenous biodiversity management is likely to strengthen and grow in light of the proposed National Policy Statement on Indigenous Biodiversity (NPS). The proposed NPS intends to provide local authorities with clearer direction on how they manage indigenous biodiversity and, in particular, the matters that will need to be addressed in regional and district plans and regional policy statements to achieve the objectives of the NPS. As the proposed NPS has attracted many opposing submissions, it is unclear whether the document will become operative, and if so, in what form.  

Landowners with indigenous vegetation on their property need to be aware that both district and regional councils have the ability to control the use of their land in respect of the clearance of indigenous vegetation.  

Importantly, landowners should keep a close eye on both regional plan changes and district plan changes to avoid being surprised by further restrictions on indigenous vegetation clearance on private land and to ensure that they can lodge appropriate submissions to protect their interests.  

Issues may arise with existing certificates of compliance or existing resource consents to clear indigenous vegetation, particularly if they have not yet been implemented (or implemented fully). For example, landowners holding an existing certificate of compliance and/or resource consent from the district council may find that as a consequence of new rules introduced into a regional plan, they also need to obtain a resource consent from the regional council to clear indigenous vegetation.