Edmonds Judd

Rural

Water Services Act 2021

How does this affect the rural sector?

Water has been very much in the news lately, particularly with the government’s proposed Three Waters Reform Programme. The Three Waters Reform generally deals with the transfer of water infrastructure (drinking water, wastewater and stormwater) to four new water service delivery entities.

What hasn’t been in the news as much is a very important piece of legislation with regard to water that will impact on the rural community: the Water Services Act 2021. This came into force on 15 November 2021. The purpose of this legislation is to ensure that ‘drinking water suppliers’ provide safe drinking water to consumers. Previously, responsibility for drinking water was dealt with under the Health Act 1956 but, as a result of the water contamination issues in Havelock North in 2016 and the subsequent inquiries that resulted from that, it was determined that the supply of safe drinking water was so critical that it needed its own legislation and regulator — Taumata Arowai.

What is a ’drinking water supply’?

A ‘drinking water supply’ means the infrastructure and processes used to abstract, store, treat or transport drinking water for supply to consumers or to another drinking water supply. It includes the point of supply, any endpoint treatment device and any backflow prevention device, but does not include a temporary drinking water supply or a domestic self-supply.

Who is a ‘drinking water supplier’?

The Act defines a supplier as a person who supplies drinking water through a drinking water supply but does not include a ‘domestic self-supplier’. Therefore, the legislation applies to private water schemes as well as any public water supply.

A ‘domestic self-supplier’ means ‘a stand-alone domestic dwelling that has its own supply of drinking water’. So a single farm house with its own water supply will be exempt from complying with the legislation. A large farm, however, that might supply several houses and other buildings such as woolsheds or milking sheds that have staff rooms with kitchens from the same source through a private water system, would be subject to the provisions of the Act.

Similarly there are a significant number of rural water schemes where one water source supplies several properties (particularly where there have been lifestyle-type subdivisions). Sometimes these schemes are administered by virtue of the easements that were created in the subdivision. Occasionally, however, they are administered by companies that own the water infrastructure with all the landowners being shareholders in the company and shares being transferred at the same time as the land.

Drinking water suppliers must have a plan

If the Act applies to your situation, you are required to have a multi-barrier approach to water safety including:

  • Preventing hazards from entering the water
  • Removing particles and hazardous chemicals
  • Killing or inactivating pathogens by disinfection, and
  • Maintaining the quality of water distribution systems.

Each supplier must have a water safety plan that must include elements of international best practice, be proportionate to the scale of the water supply, and be subject to risk-based auditing and monitoring by Taumata Arowai.

What to do next?

The legislation requires a drinking water supplier to register its water supply. The registration must include certain information such as the legal name and contact details of the owner, the location of the supply, the area the drinking water supplies, the estimated number of consumers, a description of the water supply and any other information required by Taumata Arowai. As usual, the application must be accompanied by the fee or levy prescribed by regulations made under the Act.

Water suppliers registered with the Ministry of Health prior to 15 November 2021 will automatically have their registration migrated to the Taumata Arowai register.

Next you must prepare a drinking water safety plan to be lodged with Taumata Arowai. You also must implement the plan and ensure that the drinking water supply is operated in accordance with the plan. You can comply with your operational obligations by employing or engaging a third party to do this for you.

If you are already registered as a drinking water supplier, you must have your plan registered before 15 November 2022.

If you are an existing supplier and not currently registered, you have until 15 November 2025 to register and until 15 November 2028 to submit your plan.

If you are a new supplier, supplying water for the first time after 15 November 2021, you must register as a drinking water supplier and register your plan before you operate your supply.

For more detailed information, Taumata Arowai has what you need here.

The Act has teeth

What all this means in practical terms is more compliance, more cost and more responsibility in relation to water supply. There are penalties for failing to comply with the Act, including some criminal offences such as recklessness or negligence in the supply of unsafe drinking water or allowing contamination of the drinking water.

As you can see, the Act has teeth and it is now incumbent on both public and private suppliers to comply with the new regime — or face the consequences.

If you need help in working your way through this new legislation, please don’t hesitate to contact us.

 

 

DISCLAIMER: All the information published in Rural eSpeaking is true and accurate to the best of the authors’ knowledge. It should not be a substitute for legal advice. No liability is assumed by the authors or publisher for losses suffered by any person or organisation relying directly or indirectly on this newsletter. Views expressed are those of individual authors, and do not necessarily reflect the view of Edmonds Judd. Articles appearing in Rural eSpeaking may be reproduced with prior approval from the editor and credit given to the source.
Copyright, NZ LAW Limited, 2021.     Editor: Adrienne Olsen.       E-mail: [email protected].       Ph: 029 286 3650


No fault is necessary

Many of us are familiar with the tort of negligence — an act or omission by one party that causes loss to another party. Inherent in a negligence claim is the concept of ‘fault’. A recent case[1] illustrates why nuisance, a tort similar to negligence except that fault is not necessary, is still relevant.

Forest trees causing nuisance

Nottingham Forest Trustee Limited (NFT) owned land on which it had planted a commercial forest. Over a period from December 2010 to August 2016 pinus radiata trees growing in the forest, which had been planted many years earlier, fell onto two electricity lines owned and operated by Unison Networks. Unison’s customers experienced power outages while repairs were carried out, and Unison incurred costs as it repaired the damage.

Unison sued NFT both in negligence and in nuisance and sought damages to cover the cost of repairs and also an injunction to prevent future falls of trees.

Background

Unison’s electricity lines crossed over the land while it was a sheep and beef farm, and the power lines were present when NFT acquired the land and planted the forest. In planting the forest, NFT left a corridor under each of the lines approximately 30 metres wide where it didn’t plant trees. The nearest tree to the power line at any point was about 15 metres away.

Over time, however, the trees on the edge of the corridor grew to a height that was greater than the distance from the line. Pinus radiata can grow to 30 metres high. In the High Court proceedings the judge found that by 2010 the trees planted on the edge of the corridor had grown taller than the full distance between those trees and the lines. In those circumstances, there was what the High Court judge described as “a very good chance” that the lines would be hit and damage caused if a tree fell; that started to happen from about December 2010 and again in July 2011. In 2013, a tree fell in a storm causing $20,000 worth of damage to a structure on the line and there were further outages as a result of tree falls in April 2012 and November 2014. In Unison’s view, NFT was liable for the recurring damage (this was in 2015) and wrote to NFT asking that the trees be cleared to prevent further damage. This was resisted by NFT, unless Unison agreed to pay compensation for the loss of the trees.

More tree falls in September 2015 and August 2016 resulted in further damage, with Unison writing to NFT again claiming significant repair costs. This was once again resisted by NFT. NFT’s response was basically that growing trees was a natural use of land; liability for tree falls required fault in tree management and as NFT had complied with the regulatory regime and conducted regular inspections and so on, NFT was not at fault.

Indeed the negligence claim was quickly dismissed by the High Court as Unison  was unable to prove any particular fault on the part of NFT. Unison was, however, successful in its nuisance claim which in essence means if proven ‘strict liability’ follows, there is no need to establish fault. Both parties appealed the findings against them. The Court of Appeal upheld the High Court’s original decision.

About nuisance

A nuisance is defined as ‘any ongoing or current activity or state of affairs that causes a substantial and unreasonable interference with a plaintiff’s land or their use or enjoyment of that land.’ Unison obviously didn’t own any land in the vicinity. It simply owned the power lines that ran over the land. The court, however, held that since a statutory right constituted an interest in land and as the owner of utility works it has the exclusive right to occupy the portion of the soil where the works lie to the exclusion of all others and as such the right was greater than a right given by virtue of easement or licence.

Further, the court said, even if an interest in the land couldn’t be proven, as a matter of policy the existence and importance of works must mean that Unison had sufficient interest to found an action in nuisance. In particular, the court found that NFT created a state of affairs that caused unreasonable and continuing interference with the lines, and was therefore strictly liable even if NFT took reasonable precautions.

What is important to establish in nuisance is to show that a landowner has changed the state of affairs on their land which then causes a loss or damage to either other land or someone with an interest in other land. In this particular case, the change was the planting of the forest where lines already existed on a sheep and beef farm.

A similar case would be, for example, where a landowner interfered with a waterway that resulted in flooding downstream. If the landowner hadn’t interfered or changed the path of the waterway and flooding occurred downstream, there could be no liability under nuisance because that was a natural state of affairs, but by interfering with that natural state of affairs, a nuisance is created.

This case serves as a warning that even where you are not at fault, if you do something on your land that alters its natural state and somebody else’s land (or operation) is affected, you could be liable.

[1] Nottingham Forest Trustee Limited (NFT) v Unison Networks Limited (Unison) [2021] NZCA 227

 

DISCLAIMER: All the information published in Rural eSpeaking is true and accurate to the best of the authors’ knowledge. It should not be a substitute for legal advice. No liability is assumed by the authors or publisher for losses suffered by any person or organisation relying directly or indirectly on this newsletter. Views expressed are those of individual authors, and do not necessarily reflect the view of Edmonds Judd. Articles appearing in Rural eSpeaking may be reproduced with prior approval from the editor and credit given to the source.
Copyright, NZ LAW Limited, 2021.     Editor: Adrienne Olsen.       E-mail: [email protected].       Ph: 029 286 3650


Over the fence

2021 resident visa pathway for migrant workers

A new pathway for migrant workers to gain residency was introduced on 29 September 2021 by Immigration Minister, the Hon Kris Faafoi. This is a one-off resident visa that is targeted for up to 165,000 migrants — including around 9,000 primary industry workers.

In order to comply, a worker must have been in New Zealand on 29 September 2021 and be already subject to an eligible visa or have an application for an eligible visa submitted to Immigration New Zealand by this date. They must also meet one of the following three grounds:

  1. ‘Settled’ worker: lived in New Zealand for at least the past three years
  2. ‘Skilled’ worker: earn the median wage ($27 per hour) or above, or
  3. ‘Scarce’ worker: their role is on a scarce role list.

Since 1 December 2021 migrants who have already applied for residency under certain applications will be eligible to apply under any of the above three categories; these applicants will be notified by Immigration New Zealand. From 1 March 2022 all other eligible migrants can apply.

The pathway is particularly targeted at the primary sector to reflect the difficulties in recruiting workers due to Covid.

It is important to note that this is not a permanent resident visa. An eligibility checker is available on Immigration New Zealand’s website here. Applications will be prioritised and, as a result, Skilled Migrant Expressions of Interest will be frozen until 31 July 2022 when the 2021 resident visa pathway closes.

Covid on the farm

Prevention plans

With the ever-changing nature of Covid, prevention plans are key to keep the virus off your farm. When developing a prevention plan, it’s important to communicate and involve all parties. This includes discussions with your staff, contractors and suppliers so everyone can understand the risks involved and the procedures in place to negate them.

Communication should not stop when a plan is formed, it should be regularly revisited and adjusted if required. It is important to have a plan that reflects the new traffic light system that began on 3 December 2021.

What to include

The plan needs to consider both the people involved and animal welfare. It is important to consider ways to minimise contact between individuals, both within your workplace and with people outside of your workplace. Cleaning procedures, physical distancing, and the physical and mental health of your employees must all be considered when implementing a prevention plan.

What if Covid gets onto the farm?

If one of your workers, a member of their immediate family, or you or your family test positive for Covid or are considered a close contact there should be procedures in place so that your farming operations can continue. This includes ensuring livestock and crops are still cared for should any of your team members be required to self-isolate in a quarantine facility. This is why splitting shifts and creating work bubbles could be beneficial. The Ministry for Primary Industries is available to help co-ordinate services to provide for your animals’ welfare should that be needed.

All farmers must notify their suppliers and contractors should someone on your farm test positive.

Vaccinations and employee rights

In late November the Covid-19 Response (Vaccinations) Legislation Act was passed; this has significant implications on the rights of employees. Employees can now be subject to vaccine mandates by either working in an employment sector required to be vaccinated against Covid by government orders, or working for a business or farm that introduces a company policy mandating vaccination.

Employers must follow certain procedures when introducing a vaccine mandate. You must consider a number of factors when determining what roles require a vaccinated employee. These are expected to include the risk of exposure, transmission, proximity and whether the risk can be mitigated. For some rural sector businesses, interaction with customers and with other staff members is limited and therefore the risk is minimal; this may differ vastly to another business. Therefore the risk associated with a role will be dependent on its responsibilities and the nature of the business itself.

Workers whose role requires vaccination, and who choose not to have the vaccination, still have rights. Employers must exhaust all other avenues before termination including considering redeployment elsewhere. If it is no longer possible to carry out work without being vaccinated, a minimum of four weeks’ paid notice is required.

If one of your unvaccinated employees decides during this time to get vaccinated the notice will then be cancelled, unless it would unreasonably disrupt your workplace. Your employee will not be prevented from the standard entitlements granted on termination if they decide to remain unvaccinated and is able to bring a personal grievance against the business.

The situation around Covid matters is ever-changing; therefore we recommend that you check the government’s Covid websites regularly or talk with us.

DISCLAIMER: All the information published in Rural eSpeaking is true and accurate to the best of the authors’ knowledge. It should not be a substitute for legal advice. No liability is assumed by the authors or publisher for losses suffered by any person or organisation relying directly or indirectly on this newsletter. Views expressed are those of individual authors, and do not necessarily reflect the view of Edmonds Judd. Articles appearing in Rural eSpeaking may be reproduced with prior approval from the editor and credit given to the source.
Copyright, NZ LAW Limited, 2021.     Editor: Adrienne Olsen.       E-mail: [email protected].       Ph: 029 286 3650


What are they? Should I be concerned?

The identification of ‘Significant Natural Areas’ has been in the news lately. How are these areas defined and what are the implications for rural landowners?

The legislative basis identifying significant natural areas is in section 6 of the Resource Management Act 1991 (RMA):

‘6   Matters of national importance

In achieving the purpose of this Act, all persons exercising functions and powers under it, in relation to managing the use, development, and protection of natural and physical resources, shall recognise and provide [our emphasis] for the following matters of national importance:

(c) the protection of areas of significant indigenous vegetation and significant habitats of indigenous fauna.

…’

The RMA is nearly 30 years old, but it is only fairly recently that the people exercising the functions and powers under it (in respect of this section, mainly being regional councils) have stepped up the process of identifying the areas of ‘. This is the first step in complying with their obligations under section 6(c) of the Act.

In practical terms, regional councils are identifying and recording these areas within their territory – some of which are on private land. This process has, however, been somewhat controversial partly because what is ‘significant’ is not defined by the Act and, as a result, it has been left to each council to interpret this individually, largely using case law and ecological guidance. This has led to inconsistencies between local authorities recording these areas.

Implications for rural landowners

What does it mean for a landowner once a significant natural area has been identified on their land?

First, it means is that the area will be identified on the council’s records.

Second, the use to which that land can be put is likely to be more controlled. That doesn’t necessarily mean that its existing use will be stopped — although it could. It does mean, generally speaking, that existing activities are unlikely to be able to be intensified and new activities are likely to be subject to tighter controls, if permitted at all.

The concern for a private landowner having such an area on their land is that it potentially reduces the value of that land by limiting the use to which it is put; it also reduces the ability to change or vary the current farming practices in relation to the land. It is seen as a fetter to an individual’s private property rights.

Is there any compensation for a landowner who has such an area identified on their land? The answer is no. Direct government compensation has been ruled out. There have, however, been instances where the Native Heritage Fund has purchased land where large significant natural areas have been identified. There may be some financial assistance in the form of rates rebates, or funding for fencing of the areas and for pest control.

More certainty with NPSIB?

Some greater certainty might be achieved when the proposed National Policy Statement for Indigenous Biodiversity (NPSIB) is finalised. A draft NPSIB was released in 2018 and recently the Associate Minister for the Environment, the Hon Phil Twyford, agreed to extend the timeframe for the delivery of the final version of the NPSIB to the end of this year.

The intention of the NPSIB is to provide ‘clear direction to Councils on their responsibilities for identifying, protecting, managing and restoring indigenous biodiversity under the Resource Management Act 1991’. Therefore, at the very least, the NPSIB should provide some consistency between councils and certainty for landowners as to what the effect of having a significant natural area on their land might mean.

Given that the entire RMA is being reviewed and is likely to be repealed and replaced by two separate statutes, one has to presume that the current uncertainty and inconsistency may continue for some time. Whatever the form of the new laws relating to the use and development of land takes, it is certain that rules relating to the protection of indigenous flora and fauna will be an important part of that reform. Given the work that has already gone into the draft NPSIB, we presume it will be captured by the new legislation in one way or another.


What does ‘alienation’ mean in this context?

There are significant amounts of Māori land in New Zealand in productive rural areas. Much of this land is farmed by way of lease, at times in conjunction with adjoining general freehold land. Sometimes these ’joint’ farms have been farmed in this way for generations.

For Maori land to be leased or sold, however, specific rules apply. The Te Ture Whenua Maori Act 1993 governs the ‘alienation’ of Māori land.

Why Māori land is so tightly controlled

The preamble to the legislation tells us why alienation of Māori land is so tightly controlled as it states:

‘Whereas it is desirable to recognise that land is a taonga tuku iho of special significance to Maori people and, for that reason, to promote the retention of that land in the hands of its owners [our emphasis], their whanau and their hapu, and to protect wahi tapu: and to facilitate the occupation, development and utilisation of that land for the benefit of its owners, their whanau, and their hapu: And whereas it is desirable to maintain a court and to establish mechanisms to assist the Maori people to achieve the implementation of these principles.’

‘Alienation’ under the Act is a very wide term and includes:

  • Every form of disposition of Māori land or of any legal or equitable interest in Māori land, whether divided or undivided
  • The making or grant of any lease, licence, easement, profit, mortgage, charge, encumbrance, or trust over or in respect of Māori land
  • Any contract or arrangement to dispose of Māori land or of any interest in Māori land
  • The transfer or variation of a lease or licence, and the variation of the terms of any other disposition of Māori land or of any interest in Māori land
  • An agreement to the taking under the Public Works Act 1981 of Māori land or any interest in Māori land, and
  • The granting, renewal, variation, transfer, assignment, or mortgage of a forestry right over Māori land.

However, alienation does not include:

  • A disposition by will of Māori land
  • A disposition of a kind above effected by order of the court
  • A surrender of a lease or licence in respect of Māori land
  • The granting, for a term of not more than three years (including any term or terms of renewal), of a lease or licence over or in respect of Māori land, or
  • A disposition by way of sale by a mortgagee pursuant to a power expressed or implied in any instrument of mortgage.

Many different rules apply

Different rules apply regarding the alienation of Māori land; all are dependent on the status of the land and how it is owned.

Māori customary land is defined in the Act as ‘land that is held by Maori in accordance with tikanga Maori and shall have the status of customary land’.

Under section 145 of the Act, Māori customary land cannot be alienated or disposed of by will or vested or acquired under an Act. However, this doesn’t prevent a change in the owners in accordance with tikanga Māori. Nor can it stop a change in status of Māori customary land to Māori freehold land (there is a process for this) or the creation, cancellation, or variation of an easement, or laying out of a roadway, over Māori customary land.

Section 146 of the Act states that no person can alienate Māori freehold land otherwise than in accordance with the Act. ‘Māori freehold land’ is land which has been determined as such by the Māori Land Court by freehold order. Māori freehold land can be owned by individuals, through Māori incorporations or through trusts; this land can be alienated but there is a formal process under the legislation:

  • Section 150A sets out the requirements for alienation by a trust
  • Section 150B sets out the requirements for alienation by a Māori incorporation, and
  • Section 150C sets out the requirements for alienation by individuals or land owned jointly or in common by individuals.

Māori land that is owned by Māori incorporations tend to be larger blocks that are economic in their own right. This contrasts with Māori land owned by trusts and (particularly) owned by groups of individuals in common that are often smaller and not economic in their own right. Often several blocks can be found adjacent to each other, but with similar, but not the same common ownership. Agglomerating these blocks into an economic unit can be challenging and an understanding of what are fairly complex rules and procedures is necessary. However, as we can see from the preamble referred to above, the aim of the Te Ture Whenua Maori Act 1993 is not only to retain land in Māori ownership, but to ‘facilitate the … development and utilisation of that land for the benefit of its owners…’. To that end, alienation, particularly by way of lease, to an appropriate lessee is a useful mechanism for achieving some of the Act’s aims.

If you have an interest in Māori land that could be leased or sold, or if you are looking to lease Māori land to use as part of your farming operation, getting advice from a lawyer who is experienced in Māori land law and wāhi tapu is vital. Please get in touch with us if you are in this situation.


Should be more specific

Leasing of farms, orchards and cropping land is becoming more common. It is a good way for farming operations to expand without capital commitments involved in buying land. For landowners, it can be a useful way to retain ownership of the capital but give away the day-to-day farming operations, either through a desire to semi-retire or to hold the farming asset for a period while family or continued ownership issues are resolved.

Continue reading



Over the fence

National Environmental Standards for Freshwater Regulations 2020: impacts on winter grazing

The National Environmental Standards for Freshwater Regulations 2020 came into force on 3 September 2020. The standards are designed to protect existing inland and coastal wetlands, improve poor practice intensive winter grazing of forage crops, restrict further agricultural intensification and limit the discharge of synthetic nitrogen fertiliser to land and require reporting of fertiliser use. Continue reading