Awarua Farm (Marlborough) Limited v Marlborough District Council
[2014] NZHC 2264
•18 September 2014
IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY
CIV-2014-406-23 [2014] NZHC 2264
UNDER Section 299 of the Resource Management
Act 1991
BETWEEN
AWARUA FARM (MARLBOROUGH) LIMITED
First Appellant
PHILIP JOHN WOOLLEY Second Appellant
AND
MARLBOROUGH DISTRICT COUNCIL
Respondent
Hearing: 13 August 2014 Counsel:
D J Clark for Appellants
P J Radich and M J Radich for RespondentJudgment:
18 September 2014
JUDGMENT OF GODDARD J
This judgment was delivered by me on 18 September 2014 at 10.00 am, pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors:
Wisheart Macnab and Partners, Blenheim for Appellants
Radich Law, Blenheim for Respondent
AWARUA FARM (MARLBOROUGH) LIMITED v MARLBOROUGH DISTRICT COUNCIL [2014] NZHC
2264 [18 September 2014]
Introduction
[1] This appeal relates to three decisions of the Environment Court (the Court) concerning a farm operated by the appellants. The second appellant is Mr Woolley and the first appellant is his company, Awarua Farm (Marlborough) Ltd.1
Mr Woolley is a dairy farmer in Marlborough with two dairying operations, one at Awarua Farm near Tuamarina (Awarua Farm) and the other at Glenmae in the Wairau Valley (the Glenmae Farm). In its third decision, the Court issued a range of enforcement orders against the appellants in relation to the Awarua Farm.2
[2] The issues on appeal can be divided in three separate headings:
(a) whether the Court had jurisdiction to make enforcement orders 1–4 pursuant to ss 314 and 319 of the Resource Management Act 1991 (the RMA);
(b)whether the Court correctly found the appellants to be in breach of s 15 of the RMA (relating to enforcement orders 5 and 9); and
(c) whether the Court had the power to issue enforcement orders 6–8, 10 and 11.
[3] The day before the hearing, the appellants urgently applied for a stay of the enforcement orders. That application is addressed at this end of the decision.
Background
[4] The Awarua Farm has a high water table, particularly during winter. The farm keeps dairy cattle in summer and is rested in winter to avoid soil compaction3
and destruction of the pasture. The farm is reliant on drainage due to its proximity to
1 Together, the appellants.
2 Marlborough District Council v Awarua Farm Marlborough Ltd [2014] NZEnvC 89 [The Third
Decision].
3 When stock intensively trample wet soil, the soil aggregates are broken down and spaces in the soil are reduced. This is called soil compaction or pugging. Soil compaction causes poor drainage; poor plant growth; greater fertiliser requirements; and more topsoil and contaminant runoff to waterways.
the Wairau River and the redirection of the Pukaka River into a drain to the east of the farm. In winter, the water level in those drains approaches ground level.
[5] The discharge of effluent from the farm is a discretionary activity and requires resource consent.4 In 2004 the appellants made a resource consent application under s 88 of the RMA. It stated that the effluent management system had a storage capacity of 100 cubic metres.5 The assessment of environmental effects that accompanied the application stated that the discharge of effluent by the proposed effluent management system would have “little or no effect on the environment”; that “run-off to any water courses … is unlikely to occur”; and that the system could handle “both the present volume and up to nearly twice the amount”.
[6] A report by a resource management officer on the application noted that “it is not anticipated that there will be a discharge, either directly or indirectly to water” and that “with proactive management the effect of this discharge is not anticipated to be any more than minor”. Resource consent was granted on 14 December 2005. Condition two of the resource consent requires the consent to be conducted in accordance with the application.
[7] The farm’s effluent management system is central to the appeal. The system drains effluent from the washdown of the yard into several catchment drains. Those catchment drains flow to a small sump that connects via an underfloor drainage system to a concrete sump beneath the floor of a piggery sty. The concrete sump has a pump unit with a stirrer attached. The pump unit is attached to external piping that discharges effluent via an irrigator. Since the release of the Court’s third decision6 and the issue of enforcement orders, three effluent containers with a combined capacity of 90 cubic metres have been connected to the system.
[8] On 25 March 2013, the respondent, Marlborough City Council (the Council)
applied for enforcement orders against the appellants in relation to several issues, including the effluent management system.
4 Resource Management Act 1991, s 104B.
5 The equivalent of 100,000 litres.
6 See [16] below.
The Environment Court decisions
[9] The first decision was released on 30 August 2013.7 The Court held that the farm was operating in breach of ss 15 and 17 of the RMA; that dairy effluent was not being discharged in accordance with the resource consent application; and that the offal pits on the farm were in breach of the Wairau Awatere Resource Management Plan (the Wairau Awatere Plan).8
[10] Of particular importance to this appeal was the indication that the storage capacity of the farm’s effluent management system was less than the 100 cubic metres claimed in the resource consent application. The Environment Court was satisfied that there were periods when the sump and pigsty overflowed and effluent travelled onto nearby races and ponded in low lying areas before discharging into nearby fields and possibly into adjacent farm drains. Because the resource consent application stated that 100 cubic metres of storage were available, and because it did not allow for overflow of washdown around the sump or ponding in fields, the discharge of effluent was in breach of condition two of the resource consent.
[11] The Court considered that the established breaches provided it with broad powers to undertake an extensive review and impose more requirements under the resource consent. However, it accepted that the starting point was whether compliance with the existing consent was possible.
[12] With these factors in mind, the Court issued a draft enforcement order, preventing the appellants from discharging effluent until the effluent management facilities were certified as being capable of accommodating washdown from three days of effluent without overflow from the sump or piggery drainage system. The Court reasoned that the certification regime would give the appellants the opportunity to comply with the conditions of the resource consent while preventing
any continued adverse effects to the environment.9 The parties were given ten
working days to comment on the orders before they were finalised.
7 Marlborough District Council v Awarua Farm Marlborough Ltd [2013] NZEnvC 206 [The First
Decision].
8 See Wairau Awatere Resource Management Plan at [30.1.8.11].
9 The First Decision, above n 7, at [76].
[13] The second decision was released on 1 October 2013.10 By that date, the Court had had the benefit of weekly inspection reports, in addition to a report from GHW Global confirming the farm did not have an effluent management system capable of supporting 700 milking cows. The Court found this report underlined the grounds for an enforcement order on the basis that incorrect information had been supplied.11
[14] Despite its finding that the inspections demonstrated “a serious and on-going compliance situation” on the farm that needed to be “addressed urgently”,12 the Court decided to give the appellants a further opportunity to provide evidence that the conditions of the resource consent could be met. The Court also indicated that if the appellants did produce such evidence, further orders would follow:
[10] To suggest that certification is not required, is not acceptable to this Court. It is for Mr Woolley to establish, given the clear evidence to the contrary at the current time, that this farm can comply with its existing consent, or this Court will make enforcement orders reducing the level of stock to a level where certification can be achieved.
…
[30] If a satisfactory outcome is not identified in the certification or report, or there remains significant disagreement with the course of action proposed from the Council, the Court will need to consider an urgent hearing and/or further interim orders on the papers or by hearing, as necessary.
[15] The issue of compliance remained unresolved and a further hearing was required on 20 March 2014 to review the interim enforcement orders.
[16] The Court released its third decision on 17 April 2014. The Court was not satisfied that the farm could meet consent conditions and the RMA requirements with the volume of effluent storage available at the time. Nor was it satisfied that the existing effluent sump could be used without adverse environmental impacts arising
to which there had been no consent.
10 Marlborough District Council v Awarua Farm Marlborough Ltd [2013] NZEnvC 235 [The
Second Decision].
11 At [4].
12 At [6].
[17] The Court held that in order to comply with the resource consent, the RMA and the Wairau Awatere Plan, the effluent management system must be capable of handling volume equivalent to three days of effluent washdown. Having heard expert evidence from both sides on the issue, the Court found that approximately 210 cubic metres of storage was the absolute minimum that would be required. This was a conservative calculation, given the experts’ agreed calculation of a minimum storage volume of 360 cubic metres.
[18] The Court reluctantly concluded that the farm was capable of adhering to the original resource consent, provided that certain changes were implemented in its effluent management system. These changes were incorporated into enforcement orders 1–4.
[19] The Court also made a range of other enforcement orders relating to the discharge of contaminants into the environment, the offal pits and access to the farm by Council officers.
Enforcement orders 1–4
[20] The enforcement orders issued by the Court pursuant to ss 314 and 319 of the
RMA are long and detailed. Critical to this aspect of the appeal is enforcement order
1, which requires the appellants to provide a design for an effluent collection and distribution system sufficient to collect and store a minimum of 200 cubic metres. The Court must approve the design before it can be installed and the appellants permitted to commence milking on Awarua Farm. Enforcement orders 2–4 provide further requirements for the implementation and management of the effluent management system. The appellants submitted that the Court lacked jurisdiction to make these orders.
[21] The scope of an RMA enforcement order is wide. As Elias J (as she then was) commented in Russell v Manukau City Council:13
… s 314 is something of an omnibus enforcement provision designed to give the Planning Tribunal power not only to compel compliance with the Act or district plans but also to make orders restraining or requiring action to
13 Russell v Manukau City Council [1996] NZRMA 35 (HC) at 5.
prevent, remedy or mitigate adverse effects on the environment… If minded to make an order, the Planning Tribunal then had available to it the range of orders provided by s 314.
[22] Section 314 provides for a range of enforcement orders, three of which are relevant to this appeal. First, an enforcement order may require positive action where it is necessary to ensure compliance with the Act, a rule in a plan or a resource consent.14 Second, an order may also require positive action if that is necessary to avoid, remedy or mitigate any actual or likely adverse effect on the environment caused by or on behalf of that person.15 Third, an order may change or cancel a resource consent if an application supplied inaccurate information to the consent authority that materially influenced its decision.16
[23] Except as provided in s 319(2), an enforcement order may be made on such terms and conditions as the Court thinks fit.17 Any person (including a local authority) may apply to the Court for an enforcement order under s 314(1)(a)–(d) or s 314(2).18 A local authority may also apply for an enforcement order under s 314(1)(da) or (e).
[24] After considering an application for an enforcement order, the Court may make any appropriate order under s 314 or refuse the application.19 Under s 319(2) the Court is precluded from making certain enforcement orders under s 314(1)20 where the person against whom the order is sought is acting in accordance with a resource consent. An order may only be made against such a person if the adverse effects in respect of which the order is sought were not expressly recognised in the
grant of the resource consent.
[25] Section 17 can also provide grounds for an enforcement order. This section imposes a specific duty to avoid, remedy or mitigate the adverse effects of any activities on the environment. The duty applies whether or not an activity is in
carried on in accordance with a resource consent. The duty is not of itself
14 Resource Management Act, s 314(1)(b)(i).
15 Section 314(1)(b)(ii).
16 Section 314(1)(e).
17 Section 314(3).
18 Section 316(1).
19 Section 319.
20 The orders precluded are orders under s 314(1)(a)(ii), (b)(ii), (c), (d)(iv), or (da).
enforceable but subs (3) provides that it may be enforced through an enforcement order. Importantly, subs (3) is also subject to s 319(2).
[26] Mr Clark, for the appellants, submitted that the Court did not have jurisdiction to issue enforcement orders 1–4. He said that where there is a resource consent, the Court can either make enforcement orders to ensure compliance with that resource consent or it can make an actual change to the resource consent pursuant to s 314(1)(e). He said enforcement order 1 went beyond ensuring compliance with the resource consent because it stipulated twice the volume of storage specified in the resource consent application. Mr Clark also suggested the Court could not rely on s 314(1)(e) because the Council did not explicitly refer to that provision in its application for enforcement orders.
[27] Mr Clark further submitted that the appellants were not properly heard in relation to the effluent management system imposed by enforcement orders 1–4 and that the Council should have used the review power under s 128 of the RMA instead of applying for enforcement orders.
[28] I conclude that the Court had two possible routes by which it could issue enforcement orders 1–4. The first route was under s 314(1)(b). Section 314(1)(b) does not empower the Court to change a resource consent where the consent holder is merely operating in breach of the consent.21 However, in this case, the appellants were also in breach of the duty contained in s 17 to avoid, remedy or mitigate the adverse effects of the effluent management system on the environment.
[29] Accordingly, the only statutory limit to the Court’s jurisdiction is s 319(2). As the Environment Court correctly held, that provision does not apply here because not only were the appellants failing to act in accordance with the resource consent, but the adverse effects in respect of which the order was sought were not expressly
recognised in the grant of the resource consent.22 In circumstances where the
consent holder is acting in breach of s 17 and is not protected by s 319(2), resource consent cannot be used as a shield against applications for enforcement orders.
21 Warren Fowler Ltd v Manukau City Council ENC Christchurch C029/99, 16 March 1999 at [25].
22 The First Decision, above n 7, at [30]–[33].
[30] The Court was therefore empowered under s 314(1)(b) to make any appropriate orders to ensure compliance with the RMA and to require the appellants to do anything necessary to avoid any likely adverse effects on the environment caused by the discharge of effluent. The Court considered that a minimum of 200 cubic metres of storage would be required to prevent further RMA breaches and to ensure compliance with the resource consent, which did not provide for ponding, or adverse environmental effects. This finding was reached with the benefit of expert
evidence and I am not willing to interfere with it on appeal.23
[31] The second route open to the Court was to change the resource consent under s 314(1)(e). It is not clear from the decision whether this is in fact what the Court did. Certainly, it made a finding that jurisdiction to make such an order existed.
[32] The Court was not constrained from applying s 314(1)(e) simply because the Council did not explicitly refer to that provision in its application.24 The form contained in the Resource Management (Forms, Fees and Procedure) Regulations
2003 requires an applicant to:25
… describe the nature and terms of the enforcement order sought in terms of
s 314 of the Resource Management Act 1991.
[33] The Council’s application was made under s 314 in its entirety. The orders sought to address environmental issues arising out of the farm’s operation and included an order requiring “installation of an effluent storage pond with sufficient capacity to accommodate the effluent from 700 cows”. Even if that were not so, s 319(1) empowers the Court to make any appropriate orders under s 314 provided that grounds for such an order exist.26
[34] Sufficient grounds to make an order under s 314(1)(e) existed. The Council had applied for enforcement orders.27 The resource consent application stated that
the effluent management system had a storage capacity of 100 cubic metres. An
23 The Third Decision, above n 2, at [14].
24 Hampton v Hampton [2009] NZRMA 411 (HC) at [38].
25 Schedule 1, form 46.
26 See also Sybeem Holdings Ltd v Auckland Council [2011] NZEnvC 217 at [40]. The Court considered a range of orders even though the Council sought enforcement orders under s 314(1)(a)(i) and (1)(b)(i)of the RMA 1991 only.
27 Section 316(2).
expert report prepared by MWH Global found that the actual storage capacity was
32.8 cubic metres. The Court held that the volume:28
… was misrepresented to the Council, and whether or not it was acceptable to the Council at the time is immaterial where, in fact, there is a material inaccuracy in the information supplied.
[35] In conclusion, I am satisfied that enforcement orders 1–4 were within the Court’s jurisdiction. For the sake of completeness, I am also satisfied that the appellants were properly heard on the requirements of the effluent system. The appellants were put on notice by the Council’s application, which sought an order requiring an effluent management system capable of handling effluent from 700 milking cows. The first hearing occurred on 24 – 25 July 2013. As noted at [11] above, the Court held that it had jurisdiction to make the orders sought by the Council. However, it opted to take a conservative approach by giving the appellants an opportunity to show that they could comply with the existing consent.
[36] By October, the appellants accepted that they could not comply with the resource consent because they had misrepresented the storage capacity of the system in their application. The appellants were given a further opportunity to comply with the resource consent. The matter returned to Court on 20 March 2014, following an entire milking season during which the Council alleges that the appellants continued to breach the interim orders issued by the Court.
[37] In the context of repeated failures to comply with the existing consent, the Court was left with little option but to require the appellants to upgrade or replace the existing effluent management system. The solution was hardly thrust upon the appellants, when the prospect that a new or upgraded system would be required was raised at the outset, and when the parameters of an appropriate effluent management system were considered by experts on both sides at the second hearing.
[38] Furthermore, if the appellants genuinely had an alternative proposal for managing the effluent, they could have relied on s 321 of the RMA, which allows
28 The Third Decision, above n 2, at [35].
any person directly affected by an enforcement order to apply to change or cancel the order.
[39] Finally, it is no answer to say that the Council should have used the review provision in s 128 instead of applying for enforcement orders. It was open to the Council to act as it did, given the appellants were in breach of the Wairau Awatere Resource Management Plan, the RMA and their resource consent.
Enforcement orders 5 and 9
[40] The Court found that the discharge of effluent and mud onto nearby paddocks, the road, and into waterways was governed by s 15 of the RMA. It accordingly issued enforcement orders stating:
5.The stock races along Pembers Road where it crosses from Pembers to Tarrant Road and alongside the waterway near Tarrants Road and across Blind Creek Road, and besides the stream south of Blind Creek Road, are be maintained so that discharge of contaminants from the race to the waterways is prevented.
…
9.Road crossings are to be cleaned after each occasion that cows are driven across in such a way that contaminants are not discharged to water or to land where they may discharge to water. All collected materials are to be disposed of appropriately.
[41] Section 15 covers the discharge of contaminants into water and the discharge of contaminants into or onto land in circumstances where the contaminants may enter water. Dairy effluent is a contaminant under the RMA.
[42] Section 15(1) provides that the discharge of any contaminant into water, or onto land in circumstances where it (or any other contaminant emanating from it) might enter the water, is regulated by s 15 unless allowed by a national environmental standard or other regulations, or allowed by a rule in a regional plan and in any relevant proposed plan or a resource consent.
[43] The word “discharge” is defined as including “emit, deposit and allow to escape”.29 The Court of Appeal has held that “discharge” means engaging in an activity that results in the emission or discharge of a contaminant. That interpretation extends to engaging in an act that causes a discharge or having legal responsibility for a discharge.30 The inclusion of a discharge that “may result” in a contaminant entering water reflects increasing concerns over contaminants reaching water bodies either through percolation to underground aquifers or streams or from being washed off contaminated sites into storm water systems and ultimately to a water course or the sea.
[44] The enforcement orders were issued in response to the Council’s concerns
that:
(a) the raceways were inadequately surfaced, resulting in the discharge of effluent and mud to nearby paddocks and waterways and the contamination of road crossings; and
(b)effluent was being deposited on public roads during road crossings without steps being taken to clean the roads.
[45] In its first decision, the Environment Court noted that there were several places, particularly close to waterways, where the raceways were in:
[43] … such poor condition that this had allowed significant ponding of effluent and water, and its ponded contents had then overflowed into the nearby streams and drains …
[46] The Court expressed concern that:
[45] … the poor race surfacing has meant that movement of cattle has led to ruts and hollows. This results in ponding and pooling of effluent and rainwater which then escapes and enters water.
[47] The Court held that the ponding of rainwater and effluent and its subsequent discharge over land to water constituted a breach of s 15 of the RMA. It stated:
29 Resource Management Act 1991, s 2(1).
30 McKnight v NZ Biogas Industries Ltd [1994] 2 NZLR 664 (CA) at 669–670.
[50] … The ponding of this effluent, both from the Hunter Road extension crossing and on the triangle was within 1m – 2m of the water body, at the Blind Creek crossing within 1m – 2m of the crossing and in the other example near Blind Creek within the Awarua farm was sloping directly into the stream.
…
[52] … the concentration or ponding of that effluent, either intentionally or by failing to maintain adequate areas, such as feed pads, stock races and the like, in our view can clearly lead to the accumulation of material which constitutes a contaminant, which, if it enters a water body or land where it may enter a water body, would breach Section 15 of the Act.
[53] In this case it is the failure of the farmer to maintain the races and to allow, over a long period of time, the ponding of effluent and other rainwater to such an extent that the farmer knew, or should have known, that it would overflow to land in circumstances where it may enter water, or flow directly to water.
[54] … To have stock walking regularly through large ponds of standing water and effluent next to streams where those ponds are created by poor maintenance of the races and walkways, in our view is a clear example of permitting the activity to occur.
…
[57] … on the triangle of land belonging to the neighbour, we are satisfied that Mr Woolley is the primary cause of the poor condition of this race and the ponding of effluent. In respect of both Hunter Road and Blind Creek Road, we are also satisfied that the ponding of effluent and rainwater in this area which occurs on the roadway is due to Mr Woolley’s failure to maintain an appropriate crossing and raceway on either side of the formed road.
[48] In its third decision, the Court observed that the race appeared to be deteriorating again and was moving a “great deal of material from the paddocks along the races” creating a “risk of contamination of the waterways”.31
[49] Mr Clark submitted that the orders effectively required the appellants to ensure that stock do not have a bowel movement that could, when mixed with rainwater, enter natural water. He argued that such an application of s 15 of the RMA would have a detrimental effect on pastoral farming and regional councils in
New Zealand.
31 The Third Decision, above n 2, at [24].
[50] I am satisfied that enforcement orders 5 and 9 do not have such far reaching implications and were within the scope of the Court’s jurisdiction. The Court recognised that the evacuation of the bladder or bowels of stock is a non-point discharge not controlled by the RMA.32 The Court was concerned with the discharge that occurs when the effluent leaves effective control of the appellants and flows onto the road and into the water.33
[51] A person allows a contaminant to escape if they fail to take precautions that a reasonably prudent person in their position would take to prevent the escape.34 Here, the poor maintenance of the races and walkways on the appellants’ farm allowed effluent to be discharged into streams. The orders require the appellants to maintain their raceways and walkways to a sufficient standard in order to prevent such contamination. This type of situation is governed by s 15. I am satisfied that enforcement orders 5 and 9 were within the scope of the Court’s jurisdiction.
Remaining orders
[52] The appellants’ submissions that enforcement orders 6–8, 10 and 11 were outside the scope of the Court’s jurisdiction can be dealt with briefly. Enforcement orders 6 and 7 relate to the offal pits situated on the farm. They provide:
6. No offal pits are to be made or used where the base of the pit is less than one metre above the highest groundwater level, and they shall not be within 50m of any surface water body. All offal pits are to be covered to prevent access by animals, and on decommissioning covered by at least 1 metre of soil.
7. The location of all offal pits are to be advised to the Regional Council.
[53] Mr Clark submitted that because the discharge of offal into land is a Permitted Activity,35 the Court has no jurisdiction to go beyond the Wairau Awatere Plan to require compliance with the Permitted Activity. Further, he argued that requiring a person to disclose the location of something is not within the scope of an
enforcement order under s 314.
32 The First Decision, above n 7, at [51].
33 Kerikeri Properties Limited v Northland Catchment Commission (1977) 6 NZPTA 344 at 348.
34 McKnight v NZ Biogas Industries Ltd, above n 30, at 8.
35 See the Wairau Awatere Resource Management Plan, at [30.1.8.11].
[54] In its first decision, the Court held that the appellants had breached the following conditions:
30.1.8.11.3 The discharge shall not be within 50 metres of any surface water body.
30.1.8.11.4 The base of the disposal area shall be no less than 1 metre above the highest level of the water table.
30.1.8.11.5 The waste shall not contain any substances classified as eco- toxic under the Hazardous Substances and New Organisms Regulations.
…
30.1.8.11.8 The offal pit shall be securely covered at all times, and covered with at least 1 metre of soil on final closure of the pit.
[55] The Court held:
[37] In the vicinity of these offal pits the water level is at, or near, ground level at least in winter. In fact, during the time of our visits, surface water was flowing from the position of the offal pits along the base of the hills and then to a drain running north/south. That drain was less than 50m from most of the offal pits. We are in no doubt whatsoever that offal pits in this area have been placed within the groundwater. The extent of contamination is unknown as no testing seems to have been undertaken, but we are concerned that surface water may have been contaminated, as well as groundwater within these paddocks. A battery was also observed at this site and we note that inorganic and particularly hazardous materials are not permitted as part of the offal pit provisions…
[38] The soil covering also appears to be inadequate … Given that we saw skeletons and animal parts, this may also constitute a health hazard (particularly if walked over) and there is the potential for stock to eat contaminated matter given that most of these offal pits were clearly not fenced off from the adjacent paddocks.
[56] During the first hearing, the Court accepted that the offal pits had been moved to a higher location to comply with the Wairau Awatere Plan. However, it remained concerned that the old pits were still in operation. To avoid any misunderstanding, it issued an enforcement order setting out the depth, the distance from the high water point and groundwater, and the minimum cover depth of any
offal pit.36
36 The First Decision, above n 7, at [41].
[57] I am satisfied that enforcement orders 6 and 7 were within the scope of the Court’s jurisdiction. Section 314(1)(b)(i) provides that an enforcement order may require a person to do something that is necessary to ensure compliance with a rule in a plan. Enforcement order 6 simply incorporates the rules of the Wairau Awatere Plan outlined at [54] above. Similarly, an enforcement order to facilitate inspection of the offal pits and ensure compliance was justifiable given past difficulties encountered by Council staff in undertaking inspections on the property.
[58] Mr Clark further submitted that enforcement order 10 was outside the jurisdiction of the Court. Enforcement order 10 provides:
10.Contaminants discharged onto pasture shall not be permitted to pond and dispersed effluent shall not be greater than 18mm in depth on the pasture.
[59] The resource consent allows ponding to a depth of 18mm. Mr Clark submitted that the prohibition of “ponding” by enforcement order 10 constituted a significant additional requirement. That is not correct. The Court explicitly stated that enforcement order 10 was designed to prevent “any ponding of dispersed effluent greater than 18mm depth on the pasture”.37 Further, the Court stated:38
… although we consider that 18mm may be excessive from a saturation point of view, we have left this unchanged notwithstanding that the Regional Plan now specifies 10mm.
[60] Enforcement order 10 merely prohibits ponding at a depth exceeding 18mm, as provided for by the resource consent. Accordingly, the order was within the Court’s jurisdiction under s 314.
[61] Enforcement order 8 states:
8.Council officers are to be permitted access to Awarua Farm at all times provided for by the RMA. Any obstruction, intimidation or interference is to be reported to the Court immediately.
37 The Third Decision, above n 2, at [43].
38 At [33].
[62] Mr Clark submitted that the Court had no jurisdiction to issue this enforcement order because the ability of inspectors to go onto the land is governed by s 332, which provides:
332 Power of entry for inspection
(1) Any enforcement officer, specifically authorised in writing by any local authority or consent authority to do so, may at all reasonable times go on, into, under, or over any place or structure, except a dwellinghouse, for the purpose of inspection to determine whether or not—
(a) this Act, any regulations, a rule of a plan, a resource consent, section 10 (certain existing uses protected), or section 10A (certain existing activities allowed), or section 20A (certain lawful existing activities allowed) being complied with; or
(b) an enforcement order, interim enforcement order, abatement notice, or water shortage direction is being complied with; or
…
[63] The Council submitted that the order was issued in the context of repeated non-compliance with s 332 and “aggressive resistance to authority”. I am satisfied that it was appropriate for the Court to order the appellants to provide entry in accordance with s 332 so that, if they did not do so, they would be subject to the more severe consequences that would flow from a breach of an enforcement order. This order is within the scope of s 314((b)(i).
[64] Enforcement order 11 states:
11.Any non-compliance with any of these obligations will be a breach of this enforcement order.
[65] Mr Clark submitted that the contents of this order cannot be the subject of an enforcement order. There is no merit in this submission. It is axiomatic that non-compliance with the obligations stipulated by the Court would constitute a breach of the enforcement orders.
Result
[66] The enforcement orders issued by the Court in its third decision were within the scope of its jurisdiction under s 314.
[67] The appeal is dismissed.
The stay
[68] The day before the hearing, the appellants made an urgent application for a stay of the enforcement orders on the basis of an urgent animal welfare issue in relation to a herd of 700 cows owned by the appellants (the Tuamarina herd). The application and the accompanying affidavits from Mrs Woolley and from a veterinarian, Mr Hansby, conveyed the clear understanding that the Tuamarina herd was currently situated at Awarua Farm, that they had to be milked on site at that farm for their own welfare, and that the appellants had attempted to engage with the Council to prevent this welfare issue from arising.
[69] For clarity of understanding, it is important to record that the reference to Tuamarina and the Tuamarina herd is really a reference to Awarua and the Awarua herd.
[70] Mr Hansby said in his affidavit dated 11 August 2014 that:
[7] In my opinion, the Tuamarina dairy herd must be milked and continue to be milked and must not be moved. My opinion is for the following reasons:
(a) If the cows that calve are not milked they will suffer unreasonable pain and suffering.
(b) They will be exposed unreasonably to infection.
…
(e) Moving large numbers of dairy cows when they are in late pregnancy or early lactation to another farm or farms is impractical and unwise because of feed budgeting.
…
[71] Mr Hansby concluded his affidavit by stating:
[34] If we are looking at animal welfare, it is my opinion that the animals in the Tuamarina herd should not be moved to another farm at this time and that the animals must be milked.
[35] If it is at all possible, the cows should be milked at Tuamarina.
[72] An urgent telephone conference was convened on receipt of the application and the parties agreed to address the matter of the stay the following day at the hearing.
[73] The Council raised several matters at the hearing that weighed strongly against the application. First, there is no animal welfare issue. The Tuamarina herd is not being milked at Awarua Farm. Instead, it is being milked at Glenmae Farm, in breach of another Court order.39 It appears that the real issue faced by the appellants is that Fonterra will not collect or pay for milk that is being produced in contravention of that order.
[74] Secondly, proceedings in relation to Awarua Farm and its effluent management system have been on foot since before the 2013 dairy season. Despite on-going litigation and clear warnings from the Court regarding the need to improve the effluent management system, the appellants nonetheless decided to impregnate their cows in late 2013.
[75] The chronology of correspondence between the parties shows that the appellants have been aware of the possibility of this situation arising for a long time and have received numerous warnings. As early as 30 May 2014, the Council was concerned with the potential for animal welfare issues and sought to engage with the appellants. By a letter dated 4 June 2014, the Council warned the appellants that the design of the new system ought to have started soon after the Court’s decision was released. The Council also asked whether the appellants intended to apply for a stay of the orders pending the resolution of the appeal. The appellants did not respond. The Council’s position was restated in a letter dated 23 June 2014. Again, the appellants did not respond. It was not until 12 August that the application for a stay was filed.
[76] Thirdly, there is no basis to the appellants’ claim that the Council has been uncooperative or inflexible. The appellants are prevented by Court order from milking at Awarua Farm. The Council does not have the ability to waive such an
order. Further, at a meeting on 24 July 2014, the Council told the appellants that the
39 Marlborough District Council v Woolley [2014] NZEnvC 79.
Tuamarina herd had to be milked at Glenmae Farm to protect the welfare of the herd, notwithstanding separate Court orders prohibiting such action. While refusing to absolve the appellants of the legal and economic repercussions of a breach of Court orders, the Council nonetheless showed a willingness to find a solution to that ensured the welfare of the appellants’ Tuamarina herd.
[77] In conclusion, I am satisfied that the grounds for a stay are not made out. The application is dismissed.
Costs
[78] The respondent has been successful and is entitled to costs. The parties can submit memoranda on costs within 14 days.
Goddard J
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