Dr Lisa Harper: Beware any land-use rule changes

The farmer, not the council, must prove they have existing-use rights; this is very difficult, as many activities on farm are not documented.

Farming is increasingly regulated and rule changes are common.

Existing-use rights are often assumed to provide some level of protection for long-standing activities. But relying on these rights is fraught with problems.

In rural zones, farming usually has 'permitted' status in the local council's district plan, so agricultural activities generally don't require resource consent.

This is normal for a rural area where food production is the dominant land use. But the status of farming activities can change, meaning that what has been 'permitted' before now requires resource consent.

One example is where land on the growing edge of an urban centre is rezoned from 'rural' to 'residential'. Various planning overlays can also be applied to parts of a district, where additional rules may apply.

Many (including councillors) often assume that these rules will only apply to new activities, while long-established activities will be protected by existing use rights. In practice, that's rarely true.

Existing use rights, in theory, protect your ability to continue activities that were allowed before the Resource Management Act's new rule came in, under certain strict conditions.

These rights decay over time; if an activity has stopped for more than 12 months, you may lose the right to continue.

To qualify, they must also be similar in scale, intensity and character to previous activities, but determining this can be complex and subjective.

The farmer, not the council, must prove they have existing-use rights; this is very difficult, as many activities on farm are not documented.

In one recent example, a farmer found they'd lost the right to plant crops in a particular paddock because they couldn't prove they'd done it regularly since well before a zoning change.

These effects on existing activities are often unforeseen when rule changes are proposed.

For these reasons, the federation generally discourages reliance on existing-use rights, by councils or landowners. If in any doubt about whether something is allowed, landowners are advised to ring the council and ask.

If you must rely on existing-use rights, keep good records of farm activities, such as a farm diary or date-stamped photos.

- Dr Lisa Harper is a regional policy adviser for Federated Farmers