Auckland Regional Council v Holmes Logging Limited HC Auckland CRI 2009-404-35

[2010] NZHC 960

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2009-404-35
CRI 2009-404-36

CRI 2009-404-37

AUCKLAND REGIONAL COUNCIL

Appellant

v

HOLMES LOGGING LIMITED AND KENNETH ANGUS HOLMES Respondents

Hearing:         25 and 28 August 2009

Appearances: J C Gordon SC and M Harborow for the Applicant

P M Fee and M Atkinson for the Respondents

Judgment:      17 June 2010 at 11:15 a.m.

JUDGMENT OF WOODHOUSE J

This judgment was delivered by me on 17 June 2010 at 11:15 a.m. pursuant to r 11.5 of the High Court Rules 1985.

Registrar/Deputy Registrar

……………………………………

Solicitors:

Ms J C Gordon SC, Meredith Connell, Office of the Crown Solicitor, Auckland

Mrs P M Fee, Jones Fee, Solicitors, Auckland

AUCKLAND REGIONAL COUNCIL V HOLMES LOGGING LIMITED AND HOLMES HC AK CRI 2009-

404-35  17 June 2010

[1]      The appellant Council laid a number of charges in the District Court against the respondents, and one other defendant, under the Resource Management Act 1991 (the Act).  These charges concerned logging activities by Holmes Logging and rules in the Council’s regional plan for sediment control and, in respect of those matters, alleged contravention of ss 9 and 15 of the Act and of an abatement notice.   All charges were dismissed by Judge Thompson.

[2]      The Council has brought an appeal on points of law by way of a case stated under s 107 of the Summary Proceedings Act 1957.

The charges, statutory provisions and procedural background

[3]      The charges were laid on 12 December 2006 against Holmes Logging, Mr Holmes, a director of Holmes Logging, and the operations manager of Holmes Logging.  The operations manager was named as a respondent in this Court.  He died in January 2009 and his name has been removed from the proceeding.   Although charges were brought separately against Holmes Logging and Mr Holmes, it is not necessary to distinguish between them.

[4]      The charges relevant on the case stated are charges under ss 9(3)(a), 15(1)(a)

and 15(1)(b) of the Act.  The provisions in force at the time1 are as follows:

9        Restrictions on use of land

…

(3)      No person may use any land in a manner that contravenes a rule in a regional plan or a proposed regional plan unless that activity is—

(a)Expressly allowed by a resource consent granted by the regional council responsible for the plan; or

…

1 Being those provisions in force in December 2006.  They were amended, as from 1 October 2009, by ss 7 and 15(1) of the Resource Management (Simplifying and Streamlining) Amendment Act

2009.

15       Discharge of contaminants into environment

(1)      No person may discharge any—

(a)       Contaminant or water into water; or

(b)Contaminant onto or into land in circumstances which may result in that contaminant (or any other contaminant emanating as a result of natural processes from that contaminant) entering water; or

…

unless the discharge is expressly allowed by a rule in a regional plan and in any relevant proposed regional plan, a resource consent, or regulations.

[5]      The charges under s 9(3) were that the respondents contravened the provision by undertaking “land disturbing activities” (logging), or permitting those activities, in a manner that contravened a specified rule in the “Auckland Regional Plan: Sediment  Control”  when  the  activity  was  not  expressly  allowed  by  a  resource consent (or pursuant to s 20A of the Act, which has no relevance on this appeal). The charges related to two separate sites in the Mahurangi Forest north of Auckland, known as Moirs Hill Road and Gully Road.

[6]      The charges under ss 15(1)(a) and (b) were that the respondents discharged, or permitted discharge, of a contaminant, “namely sediment”, into the Puhoi River, in respect of the Gully Road site, and into “unnamed tributaries of the right branch of the Mahurangi River”, in respect of the Moirs Hill Road site, or onto land in circumstances which may have resulted in the contaminant entering one or other of the specified waterways.

[7]      There was a defended hearing in the District Court over four days to 22 May

2008, followed by written submissions from both parties filed on 28 May 2008. Judge Thompson delivered a judgment the following day, 29 May 2008, dismissing all charges.

[8]      On 11 June 2008 the Council filed a notice of its intention to appeal by way of case stated.  The Council also filed an application for an extension of the standard

14 days time limit for filing a draft case stated pursuant to s 107(3) of the Summary

Proceedings Act 1957 and this was granted.

[9]      A number of drafts of a case stated were filed by the appellant in the District Court before the Judge signed a formal case stated on 2 February 2009.  There was then an application by the respondents to this Court for an order that the case stated be referred back to the Judge for amendment.  This led to a judgment of Winkelmann J dated 1 May 2009,  referral of the case stated back to the Judge, and further amendment until the case stated was settled on 4 June 2009.

The regional plan

[10]     Section 5.4 of the Council’s regional plan for sediment control is central to a number of the questions.  The plan is part of the case stated.  The broad structure of section 5.4, and relevant provisions in it, are set out in the following paragraphs.

[11]     The introduction to section 5.4 is as follows:

5.4      Rules Relating To Section 9 Of The RM Act

Land Uses

This Plan provides rules for land disturbing activities.   No person may use land for the land disturbing activities specified in section

5.4 – Tables A, B and C of this Plan unless resource consent is

obtained,  or  it  is  specified  under  the  Permitted  Activities  that  a resource consent is not required.

Section 9 of the Act provides that other land use activities are not controlled by this Plan.

The rules for land disturbing activities specify permitted, controlled and restricted discretionary activities.

…

[12]     Sub-section 5.4.1 prescribes rules for four types of activity which may be permitted in defined circumstances.   The activities of relevance in this case are vegetation removal, earthworks, and roading and tracking.  For convenience I will generally refer to “roading and tracking” simply as “roading”.

[13]     Permitted activity rule 5.4.1.1 specifies, in Table A, activities that are or may be permitted.   All vegetation removal is permitted, subject to compliance with conditions in rule 5.4.1.2.  Earthworks and roading are permitted activities provided

the scope of the activities does not exceed limits specified in Table A.  The limits are defined by dimensions, such as the area of the works and the length of roading, and with different limits depending on the proximity of the earthworks and roading to a watercourse or wetland.

[14]     Permitted activity rule 5.4.1.2 prescribes conditions.   This rule was given some emphasis by the Judge.  Condition 2 is directly relevant to questions C and D, and generally relevant by way of background.  It is as follows:

Effective erosion and sediment control measures shall be implemented to minimise  erosion  and  sediment  discharge  from  the  operation.     These measures shall be implemented on any disturbed areas where sediment is likely to wash to watercourses and/or channels which contain stable pools, and  shall  remain  in  place  until  the  area  of  operation  is  stabilised  in accordance with Condition 3.

Any sediment control measures shall be monitored on a weekly basis during operations within the area draining to it and cleaned out when it is observed to be greater then [sic] 50% full of sediment.  Materials extracted from the sediment control measures shall be deposited in a position from which they cannot wash to any watercourse and/or channels which contain stable pools.

Explanation

One or more erosion and sediment controls may be implemented to assist in

ensuring the activity is carried out in accordance with Condition 2 above.

Such examples include:

(i)        Sediment Retention Ponds

(ii)       Silt Fences

(iii)      Contour Drains

(iv)      Runoff Diversion Channels

(v)       Slash Bunds

These measures should be implemented in accordance with “Erosion and Sediment Control Guidelines for Land Disturbing Activities for the Auckland Region”, Auckland Regional Council Technical Publication Number 90, available from Auckland Regional Council.  These Guidelines also contain further erosion and sediment control measures, which may also be implemented.

[15]     Sub-sections 5.4.2 and 5.4.3 are concerned with “Controlled Activities” and “Restricted Discretionary Activities” respectively.    Controlled and restricted discretionary activities are again defined by reference to dimensions, and some other criteria set out in tables, and relating to the scope of the earthworks and roading.  The charges under s 9(3) alleged contravention of the restricted discretionary activity rules contained in 5.4.3.

The case stated : Summary of facts found and of some evidence

[16]     The case stated records the following:

3.3      It was proved upon hearing that:

General

(a)      Kenneth Angus Holmes is a director of Holmes Logging

Limited and was responsible for its overall management.2

(b)In  2005,  Holmes  Logging  Limited  acquired  the  logging rights for areas of production forest in the Mahurangi Forest near Warkworth.   Two  separate areas  of  the  forest  were involved.   One was known as Gully Road and the other known as Moirs Hill.

(c)The defendants began work at the Gully Road site on or about 8 August 2006.   The defendants began work at the Moirs Hill site on or about 20 February 2006.

Section 9 charges

(d)The Auckland Regional Plan: Sediment Control became operative in 2001.

(e)Vegetation  removal  was  undertaken  by the  defendants  at both Gully Road and Moirs Hill.

(f)In  relation  to  vegetation  removal  erosion  and  sediment control measures, the defendants did not comply with the TP903  provisions in terms of dimensions and capacities of the various structures put in place by them on the two sites.

(g)       Earthworks and roading and tracking was undertaken by the defendants at both Gully Road and Moirs Hill.

(h)      At Gully Road the total length of the bladed haul tracks was

2,505 metres.  The total area of the bladed haul tracks was

16,890 m².  The total area of the landings was 9,000 m².  The total length of the haul tracks and other soil disturbance was

535 metres.  The total area of the other haul tracks and other

soil disturbance was 3,210 m².

(i)       At Moirs Hill the total length of the bladed haul tracks was

2,225 metres.  The total area of the bladed haul tracks was

16,480 m².   The total length of the roads was 440 metres. The total area of the roads was 4,850 m².  The total area of the landings was 10,000 m².   The total length of the other

2 A reference to the operations manager for Holmes Logging has been omitted.

3   TP90 is shorthand for the Council’s technical publication number 90, “Erosion and Sediment

Control Guidelines for Land Disturbing Activities for the Auckland Region”. It is referred to in condition 2 of rule 5.4.1.2, recorded at [14] above. It was produced as part of the case stated.

haul tracks and other soil disturbance was 1130 metres.  The total area of the other haul tracks and other soil disturbance was 7040 m².

(j)        Resource  Consent  number  31786  was  obtained  by  the previous forest operator in 1996.   A copy is attached and marked  “5”.     Its  purpose  was  to  deal  with  vegetation removal,   earthworks,   tracking   and   roading   activity   as detailed in an Assessment of Effects on the Environment lodged with the Council in June 1996 by the previous forest operator.   The special conditions included a condition that all forestry operations “shall be carried out in accordance with”:

(i)The New Zealand Forest Code of Practice (LIRO Second Edition June 1993);

(ii)      Auckland Regional Council’s Technical Publication No. 2 – Erosion and Sediment Control Guidelines for Earthworks4  (updated March 1995).  A copy of the Guidelines is attached and marked “6”.

(k)       A further special condition of the Resource Consent read:

(i)The grantee shall submit an Annual Operational Plan for the proposed future areas of works a minimum of two months prior to these works being undertaken. These plans shall be submitted for the approval or otherwise for the Group Manager Environmental Management Auckland Regional Council and shall include details of …

(l)The defendants gave no consideration to TP2 (nor to TP90 or TP223).  It was clear from the prosecution evidence and was rather reinforced by the defence evidence.   TP90 was not complied with.

(m)      No Annual Operational Plan was approved by the Council during the relevant period (June to November 2006).   For some period of time, the Council knew the work was proceeding without an Annual Operational Plan and made no issue of it.

3.4      Both the prosecution and defence led evidence that the concept of

‘contributing catchments’ is an important principle in determining the sizing and effectiveness of sediment controls (refer evidence of Bryant, Larcombe and Dey).  There was a conflict of evidence as to how to measure catchments and the precise sizes of the catchments at the sites (refer evidence of Bryant, McMahon and Dey).

4 This technical publication was referred to in the judgment and by the parties as TP2.

3.55

Section 15 charges

3.6Photograph GR19 (taken on 17 November 2006 and attached and marked  “7”)  depicts  run-off  from  the  upper  catchment  flowing across the unstabilised bladed haul track and directly into a stream at the forefront of the photograph.   That stream is the Puhoi Stream, although the stream cannot be seen in the photograph.

The limits to an appeal on a question of law by way of case stated

[17]     The limits to an appeal on questions of law by way of case stated were fully discussed by Fisher J in Auckland City Council v Wotherspoon.6   The Judge said, at

85-86:

… I cannot envisage any circumstances in which an informant could ever succeed on an appeal by way of case stated against the dismissal of a prosecution unless the case fell into one of those three categories, namely:

(a)       A conventional legal question on unchallenged facts;

(b)A positive factual finding in favour of the defence unsupported by any evidence; or

(c)Failure to draw from unchallenged primary facts an inference in favour of the prosecution when that inference is the only one reasonably possible.

Even   those   three   categories   have   severe  limitations   as   I  will   now demonstrate.

[18]     The three categories identified by Fisher J, and the limitations on them as discussed by him in the following pages, provide, with respect, a useful guide when considering whether questions which have been settled do in fact involve questions of law.  This is relevant to some of the questions asked in this case stated.

5  This paragraph was deleted by order of Winkelmann J on 4 June 2009.  See [9] above and, more fully, [95] ff below.

6 [1990] 1 NZLR 76 (HC).

Outline of the questions

[19]     There are 10 questions, which were labelled A to J.  Questions A to F relate to various aspects of the Judge’s decision on the charges under s 9 of the Act.  The remaining questions G to J relate to the Judge’s decision on the charges under s 15.

Question A : Section 9 : Onus

[20]     The question is :

Was I correct in directing myself that the prosecution was required to establish, beyond reasonable doubt, that the land use activities were not expressly allowed by a resource consent granted by the Auckland Regional Council?

[21]     The question relates to the charges under s 9(3)(a).  In his decision the Judge said:

[2]       … To succeed on a charge under s9 the Informant is required to establish, beyond reasonable doubt, three elements or issues.  First, that the Defendant used land.   In this case that is said to have come about by undertaking land disturbing activities on the land in question.  Secondly, that the activities undertaken on the land contravened a rule in a Regional Plan: in this case Rule 5.4.1.2 of the Auckland Regional Plan: Sediment Control. Thirdly,  that  the  activities  were  not  expressly  allowed  by  a  Resource Consent granted by the Auckland Regional Council. …

[22]     Ms Gordon SC, for the appellant, submitted that the Judge was in error because s 67(8) of the Summary Proceedings Act applies to the proviso in s 9(3)(a) of the Resource Management Act.  Section 67(8) is as follows:

(8)       Any exception, exemption, proviso, excuse, or qualification, whether it  does  or  does  not  accompany  the  description  of  the  offence  in  the enactment creating the offence, may be proved by the defendant, but, subject to the provisions of section 17 of this Act, need not be negatived in the information, and, whether or not it is so negatived, no proof in relation to the matter shall be required on the part of the informant.

[23]     In  Gillies  Waiheke  Limited  v  Auckland  Regional  Council,7   the  Court  of Appeal held that s 67(8) of the Summary Proceedings Act applies to s 9(1)(a) of the Resource Management Act.  The Court said, at [28]:

The first point to make is that s 67(8) of the Summary Proceedings Act 1957 has (we think correctly) been held to apply to s 9(1)(a) of the Resource Management Act: Smith v Auckland City Council [1996] 1 NZLR 634 (HC) (per Fisher J); also Bay of Plenty Regional Council v Bay Milk Products Limited [1996] 3 NZLR 120 (HC) (per Thorp J). The effect is that the burden is on a defendant to prove, on the balance of probabilities, that the use was expressly allowed for by a resource consent (see Akehurst  v Inspector of Quarries [1964] NZLR 621 (SC)).

[24]     The provisions of s 9(1)(a) of the Resource Management Act, considered by the Court of Appeal in Gillies Waiheke, are in all material respects the same as the provisions of s 9(3) that applied in this case.

[25]     Mrs Fee, for the respondents, acknowledged that the onus would have been on the respondents if they had had to resort to, or wished to rely on, the proviso, but submitted that neither circumstance arose.  It was submitted that the onus was on the appellant, as informant, because “the requirement to show that the respondents’ activity was not allowed by the resource consent does not stem from s 9(3)(a) but from the rule in the regional plan itself”.

[26] In support of this argument Mrs Fee referred, firstly, to the second sentence in the introduction to section 5.4 of the regional plan, set out at [11] above. For convenience I will set it out again, including emphasis given by Mrs Fee in her submission:

No person may use land for the land disturbing activities specified in Section

5.4 – Tables A, B and C of this Plan unless a resource consent is obtained, or it is specified under the Permitted Activities that a resource consent is not

required.

[27]     The words need to be read in context.  They are not a rule.  They are simply part of the introduction to rules relating to permitted, controlled and restricted discretionary activities.   The words, in their full context, in fact reinforce the conclusion  that  the  onus  will  be  on  a  defendant  –  that  the  onus  was  on  the

7 [2004] NZRMA 385 (CA).

respondents in this case – to prove that the activity was expressly allowed by a resource consent (unless it “is specified under the Permitted Activities”, which is a separate issue).   In considerable measure, the words relied on by Mrs Fee simply repeat the provisions of s 9 of the Act, including the proviso.

[28]     Mrs Fee also relied on rule 5.5.1.  This rule is not relevant.  It is contained in a section prescribing rules for the purposes of ss 14 and 15 of the Act.8    For this reason it does not assist the respondents on the present issue under s 9.  In any event, and as with the introductory words in section 5.4, rule 5.5.1 simply records the different ways in which an activity may be carried out without contravention: one way is to do it pursuant to a resource consent.

[29]     Judge Thompson was directing himself on the proviso to s 9(3)(a).   I am satisfied he misdirected himself.  The onus was on the respondents as defendants.

Question B : Section 9 : What were the permitted activities?

[30]     The question is:

Was I correct in assuming that the earthworks and roading and tracking land use activities were permitted activities under the Auckland Regional Plan: Sediment Control?

[31]     Mrs Fee submitted that the question is “flawed” and should not be answered. The essence of the grounds for this submission was that, although the Judge first assessed the s 9 charges on this assumption, he did not confine his conclusion to one based on the assumption.  He went on to consider the s 9 charges on the basis that the activities were not permitted and concluded that the charges had not been made out on that alternative basis.

8   Section  14  is  headed  ‘Restrictions relating  to  water’.    Section  15  is  headed  ‘Discharges  of contaminants into environment’, and will be considered later in respect of other questions.

[32]     Although the Judge did assess the charges on the alternative basis, I do not consider that the question is flawed.  The way in which the Judge approached the matter is relevant to an assessment of his reasoning for dismissing the charges and to an assessment of other questions, and it has some bearing on the disposition of the appeal.  For these reasons it is appropriate to consider and to answer this question and, in doing so, to provide some of the background also relevant to some other questions.

[33]     The Judge’s statement of the facts he found to be proved, includes the facts recorded in the case stated at paragraph 3.3(e)-(i) (see [16] above).  These are the facts relating to the nature and scope of the vegetation removal, earthworks and roading activities of Holmes Logging.   The earthworks and roading activities of Holmes Logging were outside the limits specified in Table A of rule 5.4.1.1 for permitted activities.   The earthworks and roading activities came within the rules governing restricted discretionary activities contained in sub-section 5.4.3 of the regional plan.  The charges under s 9(3) allege contravention of “Rule 5.4.3”.

[34] The Judge, in his summary of the elements of the s 9 charges, recorded at [21] above, referred only to rule 5.4.1.2. He commenced his discussion of the s 9 charges as follows:

[7]       These charges all allege the use of land in a manner that contravened a Regional Plan Rule – namely Rule 5.4.1.2 in the Auckland Regional Plan: Sediment Control – in a manner that was not expressly allowed by a resource consent.   This Plan became operative in 2001.   Rule 5.4.1.2 sets out the permitted activity conditions for vegetation removal.  Primarily, it requires the implementation of …effective erosion and sediment control measures.

…

[35]     Following this the Judge considered and dismissed some arguments for the defendants.  He also referred to relevant provisions of the resource consent held by Holmes Logging, including discussion of the erosion and sediment control guideline documents referred to in the consent, TP2, and its replacement TP90.  He then said:

[16]     In respect of the permitted activity Rule, the [TP90]9  document is mentioned  only in  the  Explanation,  rather than  as a  requirement  of  the substantive Rule.  It is there as means of achieving an end, not as an end in itself.

[17]      But the first step is whether there was a contravention of the Plan, and in respect of the permitted activity Rule, logic drives me to agree with the defence position.  What the substantive Rule requires is effective erosion and sediment control measures.   The contents of the Explanation provide guidance as to how the primary purpose can be achieved, and might well be taken as evidence of accepted standards and good practice which an operator ignores at its peril.   But those methods are not compulsory and where, as here, there is no evidence that there was sediment damage to waterways or their inhabitants, the defendants can say that what they did, even if not complying with the TP document, was effective.  If they were effective, then I cannot be satisfied beyond reasonable doubt that the land use activities, (assuming them to be permitted) conducted by the defendants contravened the Regional Plan Rule.   If that is so, the charge fails at that point, and whether or not the Consent expressly allows the activity is superfluous.

[18]     But if the work was not permitted, bringing the question of the Resource Consent into play, I can accept that the Council intended to make the terms of TP 2 obligatory.   But given the non-prescriptive way it is framed and worded, and given that there is no evidence that there were damaging discharges of sediment from any of the works, whether permitted or requiring a consent, it is not possible to say that it was breached in a way that constitutes a criminal offence.

[36]     The answer to question B, if it is read literally, is “no”: the Judge was not correct to assume that the earthworks and roading and tracking activities were permitted activities.

[37]     Although the Judge did go on to consider the s 9 charges on the alternative basis that the work was not permitted, there is nevertheless a pronounced focus in the judgment on assessment on a false basis in relation to earthworks and roading.   I agree  with  Ms  Gordon’s  submission that  the  primary basis  upon  which  the  s 9 charges were dismissed was erroneous.

9  The judgment refers to TP2.   This is obviously a simple slip, as counsel acknowledged.   The

“Explanation” refers to TP90: see [14] above.

[38]     It is not clear why the Judge proceeded in this way, when the activities included earthworks and roading, as well as vegetation removal, but the former activities exceeded the permitted activity limits in Table A.   It does appear from what was said in the judgment at [2], [7], [16] and [17], that the permitted activity, which in this case applied only to vegetation removal, as the Judge noted at [7], was the focus, and earthworks and roading got included in the general discussion.  Sub- section 5.4.3, stipulated in the charges as the rule contravened, and being the sub- section making the earthworks and roading of Holmes Logging restricted discretionary activities, is not referred to in the judgment.   When the Judge did consider the matter on  the alternative assumption in [18], this was then on the erroneous basis that the onus was on the Council to prove that what was done was not expressly allowed by the resource consent.

[39]     For these reasons, when question B is considered beyond the strictly literal, my answer remains “no”: the Judge was not correct to assume that the earthworks and roading and tracking activities were permitted activities under the regional plan.

Question C : Section 9 : Test for assessing effectiveness of control measures

[40]     The question is:

When assessing whether the defendants employed effective erosion and sediment control measures, did I apply the correct test of effectiveness?

The provision in the regional plan giving rise to this question is condition 2 in rule

5.4.1.2 recorded at [14] above.

[41]     The test applied by the Judge is in his judgment at [17], recorded at [35]

above.  In particular:

… where, as here, there is no evidence that there was sediment damage to waterways or their inhabitants, the defendants can say that what they did, even if not complying with the TP document, was effective.

[42]     Mrs Fee submitted that this is not a question of law, but one of fact.   She developed the point with submissions relating to the extensive evidence heard by the Judge over four days,  with a good deal of it  directed to the issue  whether the

defendants had implemented “effective” measures.   Mrs Fee quite properly noted that in the judgment the Judge was not attempting to set out all the relevant evidence which led him to his conclusion.

[43]     I am satisfied that the question involves a question of law.   The Judge’s conclusion that there was no evidence of damage to waterways from sediment was a finding of fact.  But that is not the test that he applied.  Question C is not concerned with the adequacy or otherwise of evidence of damage from sediment.  The inquiry required  by question  C  is  whether  effectiveness  of  the  measures  employed  can properly be answered  by determining,  as  a  question  of  fact,  whether  there  was damage to the waterways or their inhabitants.  That raises a question of law.

[44]     Mrs Fee submitted that, on the basis that the question was one of law, the Judge in any event applied the correct test.  The submission was supported by careful analysis of relevant words in condition 2, and in another condition in rule 5.4.1.2, and by reference to s 5(1) of the Resource Management Act, setting out its purpose.

[45]     Ms Gordon also undertook a careful textual analysis of the condition, and assessment of meaning having regard to purpose, and the requirement in s 68(3) of the Resource Management Act that regional councils, when making a rule, “shall have regard to actual or potential effect on the environment of activities”.  (Emphasis added.)  Ms Gordon summarised the appellant’s position as follows:

It is submitted that in assessing whether a control measure was effective, the Court should have looked beyond whether there was actual sediment discharge to waterways.  It is submitted that effectiveness in rule 5.4.1.2(2) also required consideration of whether the control reduced potential damage to waterways to the smallest possible amount or extent.   Judge Thompson did not consider this aspect.

[46]     It is unnecessary to consider counsel’s submissions in detail.  This is because, in my opinion, the question cannot be answered with an unqualified yes or no.   I agree with the thrust of Ms Gordon’s submissions that, for measures to be effective, they must be capable of dealing with events in the future.   I will also accept for present purposes, but without deciding, the submission that the requirement in condition 2 that there be control measures “to minimise erosion and sediment discharge”, means measures that will reduce potential damage to waterways “to the

smallest possible amount or extent”.   But it does not axiomatically follow that, because the rule is concerned with future as well as past events, effectiveness, even to the high degree submitted for the Council, cannot be determined by considering what has in fact happened.  In some cases it may not be possible to do that, but in others it may be possible.   It will depend on all of the evidence – all of the circumstances – of the case.

[47]     The  point  is  illustrated  in  part  by  Ms  Gordon’s  submission  that  Judge

Thompson’s approach “could lead to a fundamental absurdity”:

That absurdity would arise where erosion and sediment control measures were implemented that were flawed and incapable of controlling erosion and sediment discharge.  However, no actual sediment discharge may have yet occurred because, for example, an event like a heavy rainfall may not have occurred.   Nevertheless, because of the poor control methods the potential for erosion and sediment discharge was significant.   Applying Judge Thompson’s  approach,  the  condition  in  rule  5.4.1.2(2)  would  not  be breached until there was actual sediment discharge to water.   It is submitted that such a restrictive approach is not consistent with the plan’s purpose.

[48]     In circumstances such as these, a test confined to an inquiry whether there had been sediment damage to waterways or their inhabitants would almost certainly be the wrong test.  The inquiry would have to extend to the other matters noted in the example relating to the poor control methods employed and evidence of risk of significant contamination.   But what this example illustrates, in relation to the question posed, is that the circumstances of each case are likely to vary widely.

[49]     It is easy enough to construct another example where the single test the Council contends for would be unreasonable and probably absurd.  For example, the land  user  might  be  prosecuted  after  five  years  of  operation  involving extensive vegetation removal, earthworks and roading in close proximity to waterways.  Over the five year period there were three 1 in 100 year rain storms.  The operator had high quality measuring equipment in the waterways and in areas leading to the waterways.   There was no relevant contamination.   It would be unlikely that a prosecution would be brought in such circumstances, although a zealous prosecutor might bring a charge if the erosion and sediment control measures were different from measures stipulated in the rules.   In these circumstances the Court would be

entirely justified  in  determining  the  question  of  effectiveness  by deciding,  as  a question of fact, whether the facts outlined in this example were established.

[50]    These examples, particularly mine, may be somewhat extreme, but they illustrate the primary point: circumstances are likely to vary considerably from case to case.  This may be illustrated in a more concrete way by noting some evidence referred to by Mrs Fee in her submissions: the respondents’ erosion and sediment control measures had been in place for approximately two  years and  there was evidence, said to be unchallenged, that the controls had successfully withstood a 1 in

150 year “rain event”.  Reference in the submission to that evidence does not support a conclusion that in this case the Judge did apply the correct test.  That would depend on the evidence and assessments in that regard are not a matter for this case stated.

[51]     What the evidence does illustrate is the point I have sought to make with hypothetical examples: the appropriate “test” – the appropriate inquiry – will depend on the evidence.  In my opinion the Court dealing with a criminal prosecution should not be constrained by a single test premised on one set of possible circumstances.

[52]     The answer to this question is, therefore, that the test applied by the Judge will have been the correct test if there was sufficient evidence which would enable the question of effectiveness of the erosion and sediment control measures to be assessed by determining, as a question of fact, whether or not there already had been sediment damage to waterways or their inhabitants.

[53]     I also consider that a question whether a trial Judge had been correct in determining effectiveness in the manner it was done in this case would, in most cases, be unlikely to give rise to a question of law.  I am certainly not persuaded that there is a question of law in that regard in this case.

[54]     Ms Gordon made a further submission on a discrete point.   This was that, although both parties in the District Court led evidence on the concept of “contributing catchments”, as an important principle in determining the sizing and effectiveness of sediment controls, the Judge did not refer to this in reaching his conclusion that the methods were effective.  This does not in my judgment bear on

the question as to whether the correct test was applied.   It is part of the evidence which may or may not have justified the test the Judge did apply in this case.

Question D : Section 9 : Permitted activities : Was compliance with TP90 compulsory?

[55]     The question is:

Was I correct in concluding that compliance with TP90 was not compulsory?

[56]     TP90 is referred to in condition 2 of rule 5.4.1.2, in the third paragraph under the heading “Explanation”: see [14] above.   The Judge found that “the evidence plainly establishes that the TP90 provisions were not complied with”.10    The Judge recorded, at [7] of his judgment, that the Council’s contention was that there had been contravention of rule 5.4.1.2 by failing to implement erosion and sediment control measures in accordance with TP90.

[57]     The Judge held that, although TP90 was not complied with, as a matter of fact, compliance with TP90 was not compulsory as a matter of law; that is to say, as a matter of interpretation of the rule.   The Judge provided brief reasons for his conclusion at [16] and [17].   The essence of the reasons was that the reference to TP90 was under the heading “Explanation” and the contents of the Explanation simply provide guidance as to how the “primary purpose can be achieved”; that is to say, how the substantive rule requirement of effective erosion and sediment control measures can be achieved.

[58]     I am satisfied that the Judge was in error.   I have come to that conclusion having had full regard to the further careful submissions by Mrs Fee in which she subjected the wording of condition 2 of rule 5.4.1.2, including that portion under the heading “Explanation”, to detailed textual scrutiny.  My reasons for coming to this conclusion are, broadly, for the reasons submitted by Ms Gordon.

10 See the factual findings recorded in the case stated at 3.3(l) at [16] above.

[59]     In Powell v Dunedin City Council11 the Court of Appeal said that interpreting a rule in a plan under the Resource Management Act was not to be undertaken in a vacuum and rigid adherence to the wording of a particular rule should be avoided. This was said in the following passage:

[35]     In this case, the appellants argued that the Court should look to the plain  meaning  of  the  access  rule  and,  having  found  that  there  is  no ambiguity, interpret that rule without looking beyond the rule to the objectives, plans and methods referred to in the earlier parts of section 20 of the plan. While we accept it is appropriate to seek the plain meaning of a rule  from  the  words  themselves,  it  is  not  appropriate  to  undertake  that exercise in a vacuum. As this Court made clear in Rattray12, regard must be had  to  the  immediate  context  (which  in  this  case  would  include  the objectives and policies and methods set out in section 20) and, where any obscurity or ambiguity arises, it  may be  necessary to refer to the  other sections of the plan and the objectives and policies of the plan itself. Interpreting a rule by a rigid adherence to the wording of the particular rule itself would not, in our view, be consistent with a judgment of this Court in Rattray or with the requirements of the Interpretation Act.

[60]     The fact that TP90 is referred to in a part of the rule under the heading “Explanation”  is  not  in  my  opinion  determinative  of  the  question  whether compliance with TP90 is, in effect, optional.   The contents of the “Explanation” expand on what is recorded before that sub-heading.  The Judge said, at [17], that “the contents of the explanation provide guidance as to how the primary purpose can be achieved  …”.    I agree,  in respect of some aspects of the  explanation.   For example, the opening words in the first paragraph are “one or more erosion and sediment controls may be implemented to assist …”.   If the words are taken in isolation they are likely to be read merely as guidance.  Mrs Fee also submitted that they are merely permissive in any event, as indicated in particular by the use of the word “may”.

[61]     This illustrates the reason why words are not to be interpreted in a vacuum. It is plain from a reading of condition 2 as a whole that the implementation of at least one erosion  and sediment control measure is  mandatory and these are to be in accordance with TP90.   The words “These measures should be implemented in accordance with” TP90 are mandatory words.  And it is clear from the explanation that the particular operation may require more than one erosion control measure and

11 [2004] 3 NZLR 721 (CA).

12 J Rattray & Son Ltd v Christchurch City Council (1984) 10 NZTPA 59 (CA).

more than one sediment control measure.  Reference to the TP90 document, part of the case stated, makes that abundantly clear.   And the TP90 document has been incorporated into the rule by reference.  As a consequence it has legal effect as part of the plan.13

[62]     For  these  reasons  I  am  of  the  opinion  that  the  Judge  was  in  error  in concluding that compliance with TP90 was not compulsory.  Compliance with TP90 was compulsory and, as the Judge found, it was not complied with.  In consequence this element of the charges under s 9 was established.  The charges as a whole would then also appear to have been established because of the findings that the vegetation removal, earth works and roading activities were carried out.

Question E : Section 9 : Resource consent : Was compliance with TP2 compulsory?

[63]     The question is:

Was compliance with TP2 compulsory?

[64]     One of the conditions of the resource consent was that all forestry operations “shall be carried out in accordance with” TP2.  At [11] of his judgment, the Judge referred to an argument for the respondents that, notwithstanding the wording of the resource consent condition, Holmes Logging was not bound to comply with TP2. The Judge said:

… [TP2], it was argued, should be considered as being no more than a suggested  and entirely optional  guideline.   It  is true,  as the  title of the document itself says, that on its face it is a guideline.   In principle it is certainly possible to incorporate such a document into the Consent and thus give  it  more  status and weight  than  something that  is  entirely optional. Seemingly this is what the Council thought it was doing by having Condition

2 say …shall be carried out in accordance with…  Depending on the terms of the document itself, it could effectively become a standard, rather than a guideline.   But in a prosecution context, it has to be possible to say with certainty whether or not the terms of the document have been breached.

[65]     As recorded in the Judge’s findings of fact:14

13   See  Resource  Management  Act  Schedule  1,  Part  3,  clause  30  and  Resource  Management

Amendment Act 2005, s 131, as to transitional provisions.

14 Recorded at [16] above, para 3.3(l).

The defendants gave no consideration to TP2 (nor to TP90 or TP233).   It was clear from the prosecution evidence and was rather reinforced by the defence evidence.

[66]     There  was  a  further  brief  discussion  of  TP2  in  the  judgment  at  [18]  as follows:

… given the non-prescriptive way [TP2] is framed and worded, and given that there is no evidence that there were damaging discharges of sediment … it is not possible to say that it [TP2] was breached in a way that constitutes a criminal offence.

[67]     Although the question is whether compliance with TP2 was compulsory, the way in which the matter arises, and the way in which it was dealt with by the Judge at [11], gives rise to two inquiries.  The first is whether the condition in the resource consent states that compliance is mandatory.  If the answer is “yes”, the second is whether TP2 is expressed in a manner which makes it possible to determine whether or not it has been complied with.  Putting this second inquiry another way: is TP2 expressed in a manner which makes it possible for the land user to determine what is required?

[68]     At [11] the Judge recognised that it was the Council’s intention to make compliance with TP2 mandatory when it imposed the condition that all forestry operations “shall be carried out in accordance  with” TP2.   Notwithstanding the submissions  for  the  respondents,  I  am  in  no  doubt  that  the  way  in  which  the condition in the resource consent is expressed requires TP2 to be treated as a mandatory  standard.    In  other  words,  there  was  a  clear  direction  that  TP2  be complied with.

[69]     Although the Judge touched on the question whether the wording of the condition in the consent purported to make TP2 compulsory, the reason why he concluded that the respondents had not breached the condition, notwithstanding the fact that they had given TP2 no consideration, was that the wording of TP2 itself meant it was not possible to determine whether it had been complied with.  There was no further discussion in the judgment explaining this conclusion.

[70]     It may be that the Judge’s succinct treatment of the issue was influenced by his conclusion that the onus was on the Council to prove beyond reasonable doubt that the activities were not expressly allowed by the resource consent, a conclusion which I have held to be erroneous.

[71]     Section 9(3) makes it an offence to use land in a manner that contravenes a rule unless the activity is expressly allowed by a resource consent.  The onus on the consent holder includes an onus to establish, on the balance of probabilities, that it has carried out the activity in accordance with all of the terms of the consent, which obviously includes any special conditions:   Gillies Waiheke Ltd v Auckland City

Council.15

[72]     If  what  is  directed  to  be  done  by  a  condition  in  a  resource  consent  is expressed in a manner which makes it difficult for the land user to work out exactly what needs to be done, that cannot effectively be a licence to the user to ignore the condition where, as here, the onus was on the land user to comply.   If there was difficulty in understanding exactly what was required to be done there would seem to be at least two appropriate courses of action open to the land user, rather than ignoring the condition.  One would be to apply for a variation or cancellation of the condition under s 127 of the Act before commencing operations.  The other would be to use best endeavours to comply, in which event a successful prosecution for non- compliance might be difficult.

[73]   In my judgment, for these reasons, the respondents failed to establish compliance with the condition as required by s 9(3)(a).

[74]     If I am wrong in my conclusion on that approach, it is necessary to consider whether TP2 is expressed in a manner which means that it is not possible to determine,  on  the  balance  of  probabilities,  whether  its  provisions  have  been complied with.  I agree with the submissions of Mr Harborow, for the appellant on this point, that the relevant part of TP2 is expressed in a way which makes it possible to determine whether there has been compliance.  Mrs Fee made two submissions in support of the contrary argument.  The first was that in numbers of places in TP2 the

15 HC Auckland, A131-133/02, 20 December 2002, Randerson J, at [23]-[24].

language used is expressly non-prescriptive.   In addition to the description of the document itself as “guidelines” there is, for example, an introductory statement:

It is not intended that this guide-line [sic] be prescriptive and developers, consultants etc, are encouraged towards cost saving innovations that are effective in controlling erosion and sedimentation.

That is just one of several examples.

[75]     In  my  opinion  the  description  of  the  document  as  a  guideline  and  the expressly non-prescriptive words in some sections of it, do not prevent the operative section of TP2 being given effect if it is reasonably possible for the land user to determine from the operative part what is required.

[76]     The operative part of TP2 is section 6.  Mrs Fee submitted that section 6 is “incapable of becoming obligatory” because, in effect, there is no unambiguous direction as to what is to be done.   Mrs Fee submitted that there are 11 different sediment control methods without any attempt by the authors of TP2 to define when any particular sediment control must be used.

[77]     TP2 is part of the case stated.  Analysis of section 6 satisfies me, as a matter of construction, that the consent holder can reasonably determine which methods are required for particular circumstances.  What the consent holder is plainly required to do is to read section 6 and determine which of the 11 “sediment control practices”, as they are called, should be implemented in order to meet different purposes, with the purposes clearly defined at the commencement of the description of each method or practice.  There are variables.  That is inevitable because, for example, there will be significant variations in the scope of the works, land contours, natural flows, proximity of natural water and so on.  What the respondents’ submission portrays as inadequate definition is in my judgment the description of various alternatives to give the operator reasonable choices for the particular circumstances.  But the choice must be made.  On the Judge’s finding there was no effort in this case to do anything specified in section 6.

[78]     There is a point where an inquiry of this nature moves from a question of law, which a pure question of construction would normally be, into a mixed question

of  law  and  fact.    The  factual  element  of  the  inquiry  would  begin  to  become prominent if, for example, the respondents in this case had given consideration to TP2 and sought to comply with it.  If the facts of this case had taken the inquiry to that point there may have been no appropriate question of law to answer.  But, for the reasons I have endeavoured to explain, that point was not reached in this case because  of  the  Judge’s  finding  of  fact  that  the  respondents  had  given  no consideration to TP2.

[79]     For these reasons, my answer to question E is that compliance with TP2 was compulsory.

Question F : Section 9 charges : Compliance with resource consent condition 3

[80]     The question is:

In finding that there was not a breach of special condition 3 of the Resource Consent was I correct to take into account the fact that the Council knew work was proceeding and made no issue of the absence of an Annual Operational Plan?

[81]     The first part of condition 3 is set out in part in the Judge’s summary of his findings of fact.16   The full condition is as follows:

3The  Grantee  shall  submit  an  annual  Operational  Plan  for  the proposed future areas of works a minimum of 2 months prior to these works being undertaken.   These Plans shall be submitted for the approval or otherwise of the Group Manager, Environmental Management, Auckland Regional Council and shall include details of:

a)site    description   including   contour   and   location   of watercourses,

b)       the proposed harvest schedule,

c)the proposed areas of earthworks associated with roading and skid site formation,

d)the proposed erosion and sediment control measures to be used on the site,

16 Para 3.3(k) recorded at [16] above.

e)the proposed re-establishment methodology of the areas concerned,

f)any   identified   environmental   values   within   the   areas concerned which have not been addressed in the information submitted  as  part  of  the  consent  application  information dated June 1996,

g)        the specific measures to be undertaken to minimise impact on these values.

The condition shall not apply to those areas proposed to be harvested prior to 30 December 1997.

[82]     At [13] of his judgment, the Judge discussed and dismissed an argument for the respondents that condition 3 would be complied with if the consent holder submitted an annual operational plan even though it was not accepted by the Council as adequate.  At [14] he said:

It is common ground that over the time period covered by the charges – June to November 2006 no AOP [annual operational plan] has been approved by the Council.  Indeed nothing even purporting to be an AOP at all had been submitted until August 2006.  That said, the defence submission that for a substantial period the Council knew the work was proceeding and made no issue of the absence of an AOP seems to be sound.   Later though, while various amended versions were lodged after that, none were regarded as adequate by Council staff. This process culminated in an exchange of emails in  late  October  2006  in  which  the  Council’s  staff  set  out  what  further material was required.  It was this deficiency, and the knowledge that work would proceed without a satisfactory Plan in place, that culminated in the issuing of the Abatement Notice, dated 26 October 2006.

[83] Question F arises from [14]. There was no further discussion of condition 3. Contrary to what is implied by question F, it is not clear to me that the Judge expressed a concluded view as to the consequences of the failure of the Council to take issue with the absence of an operational plan over “a substantial period” until the “various amended versions” began to be lodged. The Judge’s statement in [14] that the defence submission “seems to be sound” appears to record findings of fact; that is to say, findings that the Council knew the work was proceeding and that the Council made no issue for a substantial period. There is no discussion of the legal consequences of these findings of fact. When the Judge, at [18], considered the s 9 charges on the basis that the work was not permitted, so that the activity was required to be in accordance with the resource consent, there is no mention of the failure to comply with the operational plan condition.

[84]     Mrs Fee submitted that, because of the matters just referred to, question F “does not identify a specific question of law”.  Question F, in its terms, does identify a clear question of law.  I will come to that.  However, if it is assumed that the Judge did not come to a view as to the legal consequences of his findings of fact, the legal consequences can be determined by this Court based on the facts he did find as

recorded at [14] and in the case stated.17     On these findings, there clearly was a

breach of s 9 because of the failure to supply an acceptable operational plan over the period that the Council actively sought one.   In consequence, on this basis, the respondents  failed  to  meet  the  onus  on  them  to  establish  compliance  with  the resource consent.

[85]     I will nevertheless consider the answer to question F.  It has been posed by the Judge on the basis that he did take into account his factual findings in concluding there was not a breach of special condition 3.  This also raises a legal question of general application.   This question is whether the obligation to comply with a condition in a resource consent (or with the resource consent terms as a whole) can in some way be waived or suspended by acts or omissions of the Council or its officers, short of formal action pursuant to the provisions of the Act.  The question, stated more broadly, is whether some form of estoppel can be raised as a defence in a prosecution for an offence under the Act.

[86]     In my judgment well established principles lead readily to an answer in the negative; concepts of estoppel and waiver, with the latter possibly included in the broader concept of the former, have no place in determining the enforceability of conditions attached to resource consents under the Act.

[87]     In Springs Promotion Ltd v Springs Stadium Residents’ Association Inc18

Randerson J discussed the question whether there is any “room for private law doctrines such as waiver, estoppel or election” when considering questions arising under  the  Act.19    Following  a  careful  review  of  relevant  authorities,  and  the

17 See [16] above at para 3.3(m).

18 [2006] 1 NZLR 846 at [64]-[82].

19 The discussion commences at [64].

principles arising, Randerson J held that these doctrines have no application when considering substantive rights under the Act.

[88]     Springs Promotion was concerned with a question whether existing use rights had been lost.  Although the question of general principle was therefore applied to a right arising from and defined by provisions in the Act, Randerson J expressed one of his broad conclusions in general terms as follows:20

Common law principles or equitable doctrines such as waiver, estoppel or election generally have no application under the Resource Management Act except in exceptional circumstances of the kind described by Lord Scarman in the Pioneer Aggregates case.21

[89]     In my judgment the principles discussed in Springs Promotion and applied to a right arising under the Act, apply equally to obligations arising in or under the provisions of the Act.   This is for the reasons of principle discussed in Springs Promotion.   And generally see chapter VII of Spencer Bower Estoppel by Representation.22

[90]     When discussing the subsistence of the existing use right in the Springs Promotion case, Randerson J referred to the relevant provisions of the Act governing existing use rights as a comprehensive code.  The same applies to the granting and effect of resource consents and conditions contained in them.  In particular Part 6 of the Act contains detailed provisions in respect of resource consents, including provisions expressly directed to the procedure for changing or cancelling consent conditions, on the application of the consent holder (s 127) or on the initiative of the consent authority.

[91]     For these reasons my answer to question F is that the Judge was not correct to take into account the fact that the Council knew work was proceeding and made no issue of the absence of an annual operational plan.

20 At [83](iii).

21 Pioneer Aggregates (UK) Ltd v Secretary of State for the Environment [1985] AC 132 at 140-141.

22 4th ed, 2004.

Questions G and I : Section 15(1)(a) and (b) : Evidence of discharge?

[92]     These questions are conveniently dealt with together.  They are:

GWas my finding that “there was no evidence from which I could infer that there was a discharge of contaminant into water which was the Puhoi River or the tributaries of the Mahurangi River” a finding that was available on the evidence or inconsistent with the evidence?

IWas my finding that “there was no evidence from which I could infer that there was a discharge of contaminant onto land in circumstances which may have resulted in that contaminant entering water which the Puhoi River or the tributaries of the Mahurangi River” a finding that was available on the evidence or inconsistent with the evidence?

[93]     The Judge dealt with the s 15(1) charges as follows:

[20]     In respect of the charges arising from both sites and alleging the discharge of contaminants directly into either the Puhoi River, or unnamed tributaries of the Mahurangi River, or discharge onto land in circumstances where  it  may  have  entered  those  waters,  one  issue  seems  to  me  to  be decisive.  Even accepting that the relevant Defendants can be shown, beyond reasonable doubt, to have discharged the sediment there is no evidence from which I could be satisfied, beyond reasonable doubt, that that sediment did, or  may  have,  entered  either  the  Puhoi  River  or  the  tributaries  of  the Mahurangi River.

[21]      Mr Dunphy gave evidence (para 14) that the haul tracks at Gully Road crossed perennial and ephemeral streams that discharged to the Puhoi River.  At para 15 he said that in respect of the Moir’s Road site there were again perennial and ephemeral streams that discharged to the right branch of the Mahurangi River.  At para 111 of his evidence he said that it was clear from his inspections of the Gully Road and Moir’s Hill sites that …during rainfall events there would have been a direct discharge of sediment into the waterways at Gully Road and Moir’s Hill sites as the result of the work and areas close to waterways where there were:

a)       no sediment controls; or

b)       inadequate sediment controls.

[22]     At para 89 of his evidence Mr Bryant speaks of the problems he believed there to be in respect of the Gully Road site, including the discharge of sediment-laden water directly into a watercourse.   In respect of Moir’s Hill, at para 135, he speaks of the discharge of sediment onto land that drained to a watercourse.  Neither of these watercourses are named, nor does he say to where they drain.

[23]      At para 43 Mr Clarke says that there …would have been… discharge of sediment into waterways, and added that on his inspection on 4 October

2006 he saw sediment-laden water entering a watercourse.

[24]     The  point  is  that  the  evidence  fails  to  connect  any  observed discharge, or even one which the witness believed would have occurred, with any  particular  or  identifiable  land  or  water.    None  of  the  watercourses spoken of are named or described, nor is there evidence from which I can infer that any of them were tributaries of the Mahurangi River or the Puhoi River itself.  It is important to bear in mind that the definition of water in the RMA is extremely wide, and includes …Water in all its physical forms whether flowing or not and whether over or under the ground.   It is of course inevitable that, particularly in a rain event, sediment from soil disturbed by logged operations will get into water – even if it is only a puddle lying on the ground, or a rill trickling down a slope.  But the mischief being aimed at by the Act, the Plan and by the resource consent is not that: - it is the prevention of contaminants entering water bodies where the aquatic environment could be damaged.   That, no doubt, is why the Informations were worded as they are, nominating water bodies where such damage could occur.

[25]      But the evidence falls well short of satisfying me, beyond reasonable doubt, that any discharge of sediment, even assuming it to have been caused or permitted by any of the defendants, was onto land in circumstances where it may have (which I accept is a low threshold) or actually did, enter the water nominated in the charges.

[94]     These paragraphs [20] to [25] contain the complete discussion of the s 15 charges, apart from a brief, introductory description of the charges themselves.   I have set this out in full because there are no findings of fact on the s 15 charges recorded in the case stated.

[95]     As noted at footnote 5 above, paragraph 3.5 of the case stated was deleted by order of Winkelmann J on 4 June 2009.  Questions G and I raise issues relating to the limits on appeals on points of law by way of a case stated.   In my opinion, questions G and I go beyond the proper limits.   The reasons for the order of Winkelmann J provide relevant background to my conclusion.

[96]     The original statement in paragraph 3.5 of the case stated recorded a number of facts stated to have been proved.  The “facts” are some of the items of evidence recorded in the judgment at [21] and some other matters, two of which appear to be based upon what is recorded at [23] of the judgment.

[97]     As  I have earlier  recorded,  settling the  case on  appeal  was  a  prolonged process.  The hearing before Winkelmann J on 21 April 2009 included argument as to whether what had been recorded in paragraph 3.5 were findings of fact by the Judge.  The question whether they were findings of fact was referred back to Judge

Thompson.    He  advised,  by minute  dated  13  May 2009,  that  he  did  not  make findings in the terms set out in paragraph 3.5.  He said the only findings he did make are as recorded in paragraphs [20] to [25] of his judgment.  In his minute the Judge also stated that “paras [21] to [23] are recitations of the evidence rather than findings properly so-called”.   It is unusual to have comment from a Judge to an appellate court as to the meaning of the judgment under appeal.   In this case the Judge’s comment was called for, although the manner of expression in paragraphs [21] to [23] makes the point clear in any event.

[98] There are a number of difficulties with questions G and I. The first is that the questions purport to record findings of the Judge, in inverted commas, but there were no such findings. The questions state, in essence, that the Judge found that there was no evidence from which he could infer that there was discharge of contaminant (1) into the Puhoi River, or (2) into tributaries of the Mahurangi River, or (3) onto land in circumstances where the contaminant may have entered the Puhoi River or tributaries of the Mahurangi River. The only recorded finding to the effect that an inference could not be drawn is in the judgment at [24]. The Judge’s finding in that paragraph relates to the evidence he outlined in paragraphs [21]-[23]. He expressed a conclusion there only that there was no evidence from which he could infer that any of the watercourses referred to in the evidence at [21]-[23] “were tributaries of the Mahurangi River or the Puhoi River itself”.  And that limited finding does not bear on question I which is concerned with s 15(1)(b) – discharge of contaminants onto land in circumstances where it may have got into the Puhoi River or Mahurangi River tributaries.

[99]     Even if the answer to the questions is that there was evidence from which the relevant inferences could be drawn, that would not help the appellant.   For the appellant to succeed on a point of law, it would be necessary to demonstrate, firstly, that it was the only inference available.23

[100]   The only way in which the appellant could persuade me that there was no other available inference would be by traversing all of the evidence given over four

23 See Auckland City Council v Wotherspoon [1990] 1 NZLR 76 (HC) and in particular at [90]-[91], and the other authorities cited.

days.  I was not invited to do that and I do not intend to do so.  It would be a rare case where an appeal limited to a question of law could result in the appellate court reviewing all the evidence.

[101]   Questions G and I are framed by reference to inferences.  The difficulties for the Council remain if the questions are reframed by asking whether the Judge was in error in failing to make a positive finding in favour of the Council to the effect that there was a discharge which may have got, directly or indirectly into the Puhoi River or tributaries of the Mahurangi River.  If the questions are considered in this way, in my   opinion   the   appellant   cannot   succeed.      In   Auckland   City   Council   v

Wotherspoon24 Fisher J said:

The second basis upon which an informant’s appeal could be advanced is that the dismissal of the information has turned wholly or in part upon a positive factual finding in favour of the defence but on examination that finding is found to be unsupported by any evidence …

I think it is important to know the limitations upon this principle as a ground for a prosecution appeal on a question of law. The ground is limited to the question whether there is any evidence to support a factual finding in favour of the defence. It is not concerned with the question whether the Court at first instance had correctly chosen between conflicting items of evidence, rejected evidence on a matter of credibility, declined to make a positive factual finding as to primary facts, or made a positive finding as to primary facts and circumstances where, had it been approaching the matter de novo, the appellate court might have regarded the evidence as insufficient as a matter of weight. …

In  the  present  case  it  is  particularly  important  to distinguish  between  a positive finding of fact unsupported by any evidence on the one hand and the refusal to make any positive finding, notwithstanding the presence of evidence, on the other. That distinction may be illustrated by Nankivell v O’Donovan25. … [In Nankivell] at pp 61-62 Prendergast CJ said that:

… it is not a question of law that, such evidence as was adduced being all one way, and tending to prove a fact, the Magistrate was bound to accept it as sufficient. …

A Court may not make factual findings without any evidentiary foundation but that notion does not operate in reverse. A Court can always reject evidence. It can decline to find that facts have been affirmatively established, having regard to credibility, weight and permissible inferences. This explains why informants rarely, if ever, succeed on the "no evidence to support finding" ground. …

24 [1990] 1 NZLR 76 (HC) at 87-88.

25 (1895) 13 NZLR 60.

[102]   The matters I have dealt with are, in a sense, captured in the framing of the end of questions G and I: was it a finding “that was available on the evidence or inconsistent with the evidence”?   The Court on appeal, quite expressly, is being drawn into an analysis of evidence which would only be permissible if this was a general appeal.

[103]   There is one separate piece of evidence, not referred to in the judgment, which the Council relies on in support of the appeal on these questions.  This was recorded in the case stated at paragraph 3.6.  This is a photograph said to depict run- off flowing across a bladed hill track into the “Puhoi Stream” [sic].

[104]   Paragraph 3.6 of the case stated summarises evidence.  It does not record a finding of fact.   This was made clear in the judgment of Winkelmann J earlier referred to, and in the subsequent minute from Judge Thompson.   Mr Harborow invited me to reach my own finding of fact from this photograph to the effect that the Council had proved that the respondents had caused or permitted discharge of contaminant into the Puhoi River and that, in consequence, the s 15 charges relating to the Puhoi River had been established.

[105]   I am not prepared to embark on that essentially factual exercise.  My reasons for declining to do so are indicated by the preceding discussion and one further point.  The further point is that an answer in favour of the appellant would not be determinative.  This is made clear by the careful reservation expressed by the Judge when stating his conclusions on the s 15 charges at [20] and again at [25].  He found the charges not proved “even accepting that the relevant Defendants can be shown, beyond reasonable doubt, to have discharged the sediment” (at [20]).   There is at least an implicit reservation as to whether that had been established.

[106]   My answer to questions G and I is that no error of law is established in respect of these questions .

Questions H and J : Section 15 charges : Relevance of “particulars”

[107]   These questions are conveniently dealt with together.   They are essentially identical questions directed to the fact that all of the charges under ss 15(1)(a) and (b) expressly refer either to the Puhoi River or to tributaries of the Mahurangi River. The identified rivers are contained in the wording of the charges.  The questions in a combined form are:

In any event, [i.e. irrespective of the answer to question G or question I] was I correct in concluding that the prosecution needed to prove beyond reasonable doubt that the water was in fact the Puhoi River or the tributaries of the Mahurangi River?

[108]   The essence of the submission for the Council was that the Judge wrongly required proof beyond reasonable doubt of a fact that was not one of the essential elements of the offence charged.  It was submitted that the essential elements of the offence under s 15(1)(a) are: there was a discharge of a contaminant; the defendant caused  or  permitted  the  discharge;  and  the  discharge  was  into  water.    Under s 15(1)(b) there is the additional requirement of proof of discharge onto or into land coupled with proof of circumstances that the discharge “may result in that contaminant … entering water”.   It was further submitted that, although the informations particularised sediment as the contaminant and the Puhoi River and tributaries of the right branch of the Mahurangi River as the water, the furnishing of the particulars did not require proof of those particulars beyond reasonable doubt.

The majority decision of the Court of Appeal in R v Mead26  was cited as authority

for the legal proposition.

[109]   I am not persuaded that R v Mead is an authority which requires a conclusion, in respect of questions H and J, that the Judge was in error as a matter of law.  R v Mead was an appeal following conviction of the appellants by a jury.   They were convicted on four charges of wilfully ill-treating children in a manner likely to cause them unnecessary suffering, contrary to s 195 of the Crimes Act 1961.  There were three counts framed in essentially identical terms in respect of three children.  There were particulars to each count containing allegations of a range of acts over periods

26 [2002] 1 NZLR 594 (CA) per Thomas and Anderson JJ, Elias CJ dissenting.

of time with these acts said to constitute ill-treatment which was likely to cause unnecessary suffering.   There was a fourth count in respect of one of the children with particulars alleging a single act on one occasion.

[110]   In  summing  up  the  Judge  directed  the  jury  that,  whilst  they  had  to  be unanimous in their verdict on counts 1 to 3, they did not have to be unanimous in respect of the matters that had been particularised.  The Judge further directed that each juror had to be satisfied that the Crown had proved, beyond reasonable doubt, at least one of the particularised allegations of fact.  The Judge said:

… one of you may consider that one of the accused … is guilty on count one because you find that he is responsible for the deprivation of food, cold baths, verbal abuse, whereas others of you may consider that it is because of the force feeding of cold and rotten food and hitting … you do not all have to be of the same mind in relation to a factual basis on which you determine wilful ill-treatment … it is not necessary for the Crown to prove that all the items particularised occurred.  If you find that one of the items particularised did occur and the accused was deliberately responsible for it, then that could form a proper basis on which to return a verdict of guilty … so any one or more of those matters particularised can form a factual basis upon which you can then go to determine whether the accused is guilty or not.

[111]   In the Court of Appeal, the appellants relied on a decision of the Court of Appeal of England and Wales in R v Brown.27   In that case the accused was charged with  fraud  by  making  misleading  statements.    Particulars  to  the  single  count identified five statements alleged to be knowingly misleading.  The Court of Appeal held that there had been an error in a direction by the trial Judge to the jury that the jury did not have to be unanimous in respect of any one of the statements relied on. Brown’s case was distinguished by Thomas and Anderson JJ in Mead.  The essential reason for this explains why I consider that Mead does not apply in the present case.

Brown’s case was distinguished on the basis that, as explained by Anderson J, each “particular” in Brown’s case “was an act which if proved in fact would constitute an essential ingredient”28.   The difference between the charge of ill-treatment under s 195 of the Crimes Act, and the charge in Brown’s case, was discussed by Thomas J as follows:29

27 (1983) 79 Cr App R 115.

28 At [110].

29 At [82].

Ill-treatment is an essential ingredient of the present offence, and ill- treatment must be established, but the various forms or incidents of ill- treatment cannot be equated with the false statement in Brown which made up the inducement in the charge.

[112]   A  significant  feature  of  the  charges  in  Mead  in  counts  1-3,  and  as demonstrated by the nature of the particulars, was that what was alleged as the factual foundation for the essential elements of the charge, was a course of conduct. That was not the case in Brown.  It was not the case in count 4 in Mead where the factual foundation was a single act. And it is not the case here.

[113]   Mr Harborow submitted that in Mead “Thomas J held at [77] that the fact that particulars are furnished by the prosecution does not make them ingredients of the offence”.  That needs to be read in context.  Thomas J was referring to the particulars that had been provided in that case for counts 1-3.  There was no general proposition of law in the precise form submitted by counsel which, if correct, might tend to make the provision of particulars a rather pointless exercise.

[114] But particulars are important. In fairness to Mr Harborow I note that his submission was immediately followed by the proposition that the purpose of particulars is “to fairly inform the defendant of the prosecution case”. This was noted by Thomas J at [77]. Importantly the Judge went on to say: “the particulars fixed the bounds of the evidence against” the accused in that case. As noted by Elias CJ in Mead, the purpose of particulars under the Crimes Act is specified in s 329(4) as follows:

Every count shall contain so much detail of the circumstances of the alleged crime as is sufficient to give the accused reasonable information concerning the act or omission to be proved against him, and to identify the transaction referred to …

Section 17 of the Summary Proceedings Act 1957 is to much the same effect:

17       Information to contain sufficient particulars

Every information shall contain such particulars as will fairly inform the defendant of the substance of the offence with which he is charged.

[115]   The way that statutory provision is framed makes clear, in my judgment, that the particulars of fact contained in an information in many cases will not be able to

be separated in some artificial way from the essential legal elements of the charge. The legal elements of any offence can be stated in abstract terms.  But when a person is charged with an offence, the bare legal framework is required to be given factual substance which means something to the person charged.  This is required by law because it is prescribed by s 17 of the Summary Proceedings Act and s 329(4) of the Crimes Act.  In this case the respondents, as defendants in the District Court, were entitled to proceed on the basis that what the Council had to prove was what the Council had chosen to charge them with in substance.

[116]   It is relevant to ask what the position would have been if these charges had been before a jury.  The Judge, in summing up, would in my opinion have been in error if he had told the jury that they had to be satisfied beyond reasonable doubt that there had been a discharge of sediment into water somewhere, but they did not have to be satisfied beyond reasonable doubt that it was the Puhoi River, notwithstanding the fact that the entire case had been conducted on that basis.  In my judgement that would not have been right.

[117]   Mr Harborow submitted that the information could have been confined to an allegation that a particular defendant discharged sediment into water at Gully Road. Had the four day hearing proceeded on that basis, without a request for further particulars, and if the essential ingredients of the offence had been established in respect of those factual allegations, the direction the Judge gave himself in this case might have been in error (although  I express no concluded view in that regard because other issues arise), but that is not the case here.

[118]    My answer to questions H and J is that the Judge was not in error.

Summary

[119]   For convenience I will repeat the questions and record my answers.

Question A:     Was I correct in directing myself that the prosecution was required to establish, beyond reasonable doubt, that the land use activities were

not expressly allowed by a resource consent granted by the Auckland

Regional Council?

Answer:No; the onus was on the defendants to establish, on the balance of probabilities, that the activities were expressly allowed by a resource consent granted by the Auckland Regional Council.  As recorded at [71] this required proof that the activities had been carried out in accordance with the consent, including its conditions.

Question B:Was  I  correct  in  assuming  that  the  earthworks  and  roading  and tracking land use activities were permitted activities under the Auckland Regional Plan: Sediment Control?

Answer:No; it was not correct to assume that the earthworks and roading and tracking activities were permitted activities under the regional plan.

Question C:When assessing whether the defendants employed effective erosion and sediment control measures, did I apply the correct test of effectiveness?

Answer:It is not possible to answer this question with a “yes” or “no”.  It will depend on the circumstances.  The test will have been the correct test if there was sufficient evidence to enable the question of effectiveness of the erosion and sediment control measures to be assessed by determining, as a question of fact, whether or not there already had been sediment damage to waterways or their inhabitants.  No error of law was established in this regard.

Question D:Was  I  correct  in  concluding  that  compliance  with  TP90  was  not compulsory?

Answer:         No; compliance with TP90 was compulsory.

Question E:    Was compliance with TP2 compulsory?

Answer:         Yes; compliance with TP2 was compulsory.

Question F:In finding that there was not a breach of special condition 3 of the Resource Consent was I correct to take into account the fact that the Council knew work was proceeding and made no issue of the absence of an Annual Operational Plan?

Answer:No; it was incorrect to take into account the fact that the Council knew work was proceeding and made no issue of the absence of an annual operational plan.

Questions G and I:

G        Was my finding that “there was no evidence from which I could infer that there was a discharge of contaminant into water which was the Puhoi River or the tributaries of the Mahurangi River” a finding that was available on the evidence or inconsistent with the evidence?

I          Was my finding that “there was no evidence from which I could infer that there was a discharge of contaminant onto land in circumstances which may have resulted in that contaminant entering water  which  the  Puhoi  River  or  the  tributaries  of  the  Mahurangi River” a finding that was available on the evidence or inconsistent with the evidence?

Answer:For the reasons recorded at [94]-[102] it is not appropriate to answer these questions in the form stated.   In respect of the broad issues raised by the questions, no error of law was established.

Questions H and J: In any event, [i.e. irrespective of the answer to question G or question I] was I correct in concluding that the prosecution needed to prove beyond reasonable doubt that the water was in fact the Puhoi River or the tributaries of the Mahurangi River?

Answer:Yes; it was correct to conclude that the prosecution needed to prove beyond reasonable doubt that the water was in fact the Puhoi River or the tributaries of the Mahurangi River.

Disposal of the appeal

[120]   I have concluded that there were errors of law in respect of the charges under s 9 of the Act, but not in respect of the charges under s 15.  Mrs Fee submitted that, if I found errors of law, the matter should not be remitted back to the District Court and, in effect, I should not interfere in any way with the decision to dismiss the charges.  Ms Gordon submitted that, if material errors of law were found, conviction should be entered in this Court.

[121]   The  powers  of  the  High  Court  are  contained  in  s 112  of  the  Summary Proceedings Act 1957.  In respect of the charges under s 9, I am not persuaded that the dismissal of the charges should stand in spite of my conclusions.  On the other hand, I am not persuaded that conviction should be entered in this Court, assuming there is jurisdiction to do so.   I consider that the learned Judge who heard the evidence should determine, in the light of my answers, whether the charges have been proved in all respects and, if so, whether convictions should be entered.  As to

jurisdiction, in Lyons v Ching30  Hardie Boys J held that there was no jurisdiction

under s 112 to enter a conviction and determine sentence in the High Court.  This decision was recently followed by Wylie J in Commissioner of Inland Revenue v Evans.31

[122]   In respect of the charges under s 9 of the Resource Management Act 1991 the appeal is allowed, the dismissals of the charges against Holmes Logging Limited and Mr Holmes are set aside, and the charges are remitted back to the District Court to be disposed of in accordance with the answers to questions A to F.

[123]   In respect of the charges under ss 15(1)(a) and (b) the appeal is dismissed.

30 (1983) 1 CRNZ 69 at 71.

31 HC AK, CRI 2007-404-000374, 2 July 208.

[124]   If either party seeks costs an application should be made by memorandum filed within six weeks with a response from the other party within a further three

weeks.

Peter Woodhouse J