The trouble with a lofty view from above
How Southland District Council’s drawn-out, expensive case against Peter Chartres of Te Anau Downs went so very wrong. reports.
Te Anau Downs station has long been a site of ecological battles, both natural and political in their character.
This is due in no small part to its very existence, a farm surrounded by conservation land, either Fiordland National Park – the Milford road cuts right through it – or the Snowdon Forest Conservation Area.
Peter Chartres is a thirdgeneration farmer there, constantly at war with rapid and aggressive regrowth as indigenous and exotic species seek to reclaim what is left of the land his grandfather took up as a Crown renewable lease in 1925.
Even before that, the area had a recorded farming history dating back to 1860s.
Initially Te Anau Downs comprised about 24,000 hectares, mostly covered in bracken, fern and ma¯ nuka. But, over time, grazing leases that were of higher ecological value have been progressively removed and added to the conservation estate,
Or as Chartres puts it, about 78% of the land was ‘‘appropriated without compensation’’. ‘‘We chose to freehold Te Anau Downs in 1982 to avoid progressive loss of grazing land and all the groundwork and money that had been invested in those areas.’’
This has not proved to be pastoral farming of the restful, bucolic sort. The operation, high profile given its surrounds, has never been particularly beloved by environmentalists and Chartres has been no stranger to ructions with authorities.
It was hardly a great surprise that the Groundswell protest featured a Te Anau Downs float.
Nor, perhaps, that Southland District Council, having received many complaints and citing ‘‘a pattern of non-compliance’’ went to the Environment Court and obtained a temporary order to halt any further indigenous vegetation clearance. Then, after months of fruitless mediation, the council determined it was getting nowhere and went back to the court to seek enforcement orders and major remediation of environmental effects alleged to have resulted since 2018.
In fact, the council’s initial evidence cited unlawful clearances dating back two decades. At a four-day hearing in April the council’s case was wheeled back to a considerably tighter focus: 2017 to 2020.
Among the many pointed observations the court (Judge P A Steven and environment commissioner J T Baines) made was that Chartres’ legal team was ‘‘understandably critical’’ that he had been put to enormous cost to refute a seemingly ‘‘baseless allegation’’ which had occupied considerable court time and resources. As for the remaining legal issues, the court’s ruling comprehensively dismantled the case against Chartres from the very starting point – the council may not have correctly distinguished between existing-use rights and the permitted-activity rules – to the quality of the research the council had undertaken.
The court reserved its decision on the considerable question of costs. That becomes a matter of acute relevance to Chartres after what he describes as a $1 million legal battle.
So how did it go so wrong for the council? One way – and there was more than one – was the extent to which the council relied on a lofty and patchy view from above.
Aerial photographs which provide snapshot impressions did not impress the court, whereas it noted that Chartres had kept meticulous records of his farming activities revealing a longestablished and consistent practice.
The court was legally required to identify, with reasonable certainty, how old the vegetation was at the time it was being cut back. Was it regrowth on farmland, legally removed under the rules at the time, or was old wood being claimed rather than reclaimed?
The rate at which both indigenous and exotic vegetation regrew within cleared grazing areas was extremely rapid and aggressive. Chartres himself told the court of land that had been burnt, then line-raked with a digger – and in less than 10 years the ma¯ nuka had grown to 4.2 metres.
‘‘If you did not know when it had been cleared, you would say that was 30, 40 whatever years old.’’
Chartres’ team called in Dr Kelvin Lloyd of Wildlands, who was critical of the use of aerial imagery coming from different sources. The council did not disclose which imagery was used to determine each particular clearance area.
Imagery from 1986 was widely used but none for the year 2001, when fresh rules came into force.
This, the court said, did not provide the information it needed.
‘‘The [aerial] evidence was based primarily upon an analysis of available imagery although there are gaps in the dates that make it difficult to correlate with a compliance assessment in terms of the district plan rules. We accept that it is an impossible feat to keep on top of the rate at which the regrowth occurred across the whole of the station on a literally continuous basis.’’
The district-plan definition of indigenous vegetation is plant communities dominated by an indigenous species. Dominated being the key word.
The court noted the challenge in interpreting this from aerial photos was being able to accurately identify whether they showed vegetation that was dominant, rather than simply present.
There is no getting around the fact that, time and again, the court was more impressed by the evidence of experts from Chartres’ side than that of the council.
The council’s environmental planning manager, Marcus Roy, was found to be an unhelpful contributor. In fact, ‘‘the court cannot accept that Mr Roy’s evidence gives any useful guidance on the relevant rules or that it is able to be safely relied upon to support any part of the council’s application.
‘‘To the extent that Mr Roy eventually addressed the rules, his approach to the rules was not supported by the council, which the court considers was an appropriate concession.
‘‘Based on the evidence Mr Roy gave at the hearing about his approach to the rules, we have no confidence in his analysis of clearance activities postdating 2001 . . . we suspect he was looking to find areas of cultivated green pasture.’’
Sampling presented for the council’s case, by E3 Scientific Ltd scientist Glenn Davis, included taking tree rings to assess ages – something that Chartres and Lloyd, contended was neither a systematic nor thorough process.
The sampled trees had in fact been left standing due to their age and were not representative of the younger, scattered ma¯ nuka emerging from the bracken fernland that was widespread over the hillslopes immediately before the clearance.
The court noted that this statement went unchallenged by the council, and that establishing age was a key requirement to test the clearances against the rules within each of the (current and previous) district plans.
Chartres had emphasised the lengths to which he had gone to retain pockets of beech trees and older ma¯ nuka scrub within the development areas, and that he had voluntarily fenced out wetlands and gullies.
The court could not rule out that some of the clearances may have breached the rules.
‘‘However the areas associated with potential breaches are likely to be considerably smaller than the areas assessed by [the council team] and, in the case of Te Anau Downs West, very significantly less.’’ The farmer’s cyclical and rotational clearances were carried out on an ‘‘as needs’’ and ‘‘as can’’ basis.
‘‘We accept,’’ the court said, ‘‘that it is an impossible feat to keep on top of the rate at which the regrowth occurred across the whole of the station on a literally continuous basis.
‘‘This episodic occurrence must be accounted for in our consideration of whether existing use rights apply.’’
Among the stumbling blocks the court identified was one that had applied from the get-go: The council may not have correctly distinguished between existinguse rights and the permitted-activity rules.
After the court decision, the council’s infrastructure and regulatory group manager, Matt Russell, said that determining existing-use rights was a highly complex issue and the parties in this case were at different ends of the spectrum on the legal basis for the clearances.
‘‘This decision has identified that there is a wider problem with the RMA [Resource Management Act] permitting existing-use rights for the clearance of indigenous vegetation.’’
And Peter Chartres?
He says it is disappointing that his family’s intergenerational connection and deep commitment to Te Anau Downs has been ‘‘consistently disregarded and disrespected by the council’’.
He says it is a battle that began when armed police and two ecologists arrived unannounced at the family’s homestead back in September 2018 to exercise a search warrant to undertake an ecological investigation.
‘‘The family is still extremely angry that they were treated like criminals for continuing the longstanding and essential farming practice of clearing regrowth, bracken, ma¯ nuka scrub and exotic noxious weeds from previously cleared areas of the station.’’
The council had failed during the court proceedings to adequately or correctly assess the existing-use rights under the RMA, which the court concluded Chartres could likely establish and rely upon.
But he sees confirmation in the ruling that he is not obliged to allow his farm to revert to beech forest.