Subpart 3 of the Resource Management (National Environmental Standards for Freshwater) Regulations 2020 (the NES), contains regulations relating to intensive winter grazing on arable/pastoral farms greater than 20 hectares in size or on horticultural land use greater than 5 hectares in size.

The NES defines “Farm” as a landholding whose activities include agriculture and “landholding” means 1 or more parcels of land (whether or not they are contiguous) that are managed as a single operation.

Hence a “Farm” is an operational unit, that does not have to be made up of contiguous blocks of land. The individual paddocks making up the farm can be located significant distances from each other i.e. Middlemarch and Outram.

Regulation 29 3(b) of the NES states that: At all times, the area of the farm that is used for intensive winter grazing must be no greater than the maximum area of the farm that was used for intensive winter grazing in the reference period (the period that started on 1 July 2014 and ended with the close of 30 June 2019).

However, questions have recently arisen regarding how Regulation 29 of the NES relates to the sale and purchase of blocks of land.

Example

A farm is made up of two blocks and had a maximum total intensive winter grazing of 100 hectares during the reference period. This was made up of 50 hectares on each block (yr. 2018).

During the reference period: Block A - maximum area of intensive winter grazing 70 hectares (yr. 2015 - when Block B contained 10 hectares of intensive winter grazing) and Block B - maximum area of intensive winter grazing 60 hectares (yr. 2016 - when Block A contained 20 hectares of winter grazing).

Current situation

Hence the farmer could intensively winter graze up to 100 hectares on either block (so long as the total did not exceed 100 hectares).

Purchase a new block:

1. The farmer next season wants to purchase Block C which did not have any intensive winter grazing on it during the reference period. The farmer could intensively winter graze up to 100 hectares on this paddock (subject to the total farm intensive winter grazing not exceeding 100 hectares).
2. The farmer next season wants to purchase Block C which had up to 20 hectares of intensive winter grazing on it during the reference period. The farmer could intensive winter graze up to 120 hectares on this paddock (subject to the total farm intensive winter grazing not exceeding 120 hectares). This is because the farm’s total intensive winter grazing during the reference period has increased by 20 hectares. However, the previous farm which Block C was purchased from, would have to reduce their intensive winter grazing total by 20 hectares, as Block C now no longer counts towards its total intensive winter grazing.

Sell an existing block

If the farmer did not decide to purchase Block C and instead decided to sell Block B:

1. The maximum area of intensive winter grazing that could occur on the remaining farm would reduce to 70 hectares (the maximum area of intensive winter grazing carried out on Block A during the reference period).
2. The farmer who purchased Paddock B, would now be able to increase their farm’s area of intensive winter grazing by 60 hectares. Furthermore, if they never had any intensive winter grazing on their farm during the reference period they would now be able to Reg 29 3(a).