Baigent v Tasman District Council
[2019] NZHC 1750
•24 July 2019
IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY
I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE
CIV-2019-442-24
[2019] NZHC 1750
UNDER the Resource Management Act 1991 IN THE MATTER OF
an appeal under section 299 of the Act
against a final decision of the Environment Court issued 27 March 2019
BETWEEN
GARY BAIGENT
Appellant
AND
TASMAN DISTRICT COUNCIL
Respondent
Hearing: 9 July 2019 Counsel:
T H Bennion for appellant A C Besier for respondent
Judgment:
24 July 2019
RESERVED JUDGMENT OF DOBSON J
[1] This appeal is brought by the appellant (Mr Baigent) from a decision of the Environment Court that found that two areas within a farm in the Tasman District belonging to him (the property) were to be characterised as naturally occurring wetlands for the purposes of the Tasman Resource Management Plan (TRMP).1 The consequence was that resource management rules relating to wetlands had been breached, and the respondent (the Council) had therefore been entitled to issue abatement notices.
1 Tasman District Council v Baigent [2018] NZEnvC 155 at [22]–[23].
BAIGENT v TASMAN DISTRICT COUNCIL [2019] NZHC 1750 [24 July 2019]
[2] The primary challenge is to the reasoning in an interim decision of the Environment Court on an application by the Council for enforcement orders to require remediation of works undertaken on the property.2 The challenge also encompassed the terms of the Environment Court’s final decision on the Council’s application for enforcement orders.3
[3] The property has been in Mr Baigent’s family for four generations. Mr Baigent is a tetraplegic who lives in Australia, but remains interested in the management of the property by others. The property adjoins Rangihaeata Head in Rangihaeata Road, Golden Bay. It came to the attention of the Council in April 2015 when a Council officer noted vegetation clearance and drainage works on two areas within the property, which appeared at first glance to be wetlands. If that designation did apply, then activities such as destruction or removal of indigenous vegetation, and diversion of water, would be discretionary activities that would require a resource consent.
[4] The initial views of Council officers were checked with Mr Jeroen Lurling, an ecologist retained by the Council, whose opinion was that these two areas within the property clearly constituted wetlands. The Council issued an abatement notice requiring drainage works within the area of the property to cease and that occurred. The notice related to activities within the two areas, which have been labelled throughout the proceedings as the northern wetland and the southern wetland, notwithstanding, and in effect without prejudice to, the fundamental issue of whether the areas did indeed constitute wetlands in terms of the relevant statutory standards and regulatory requirements. Mr Baigent initially applied for retrospective consent to carry out drainage works, but that was not pursued.
[5] Thereafter, the Council filed enforcement proceedings in the Environment Court, and after a two day hearing in Nelson on 14 and 15 May 2018, Judge Dwyer delivered an interim decision on 27 August 2018. It found that the northern area was a naturally occurring wetland,4 that there had been a diversion of water within that wetland and that there had been interference with native vegetation in the wetland.
2 Tasman District Council v Baigent, above n 1.
3 Tasman District Council v Baigent [2019] NZEnvC 52.
4 It was not disputed that the southern wetland is a wetland.
[6] Judge Dwyer was satisfied that orders essentially in the terms that had been sought by the Council ought to be made, and in his interim decision he directed that the Council was to draft such orders. The parties filed memoranda about the appropriate terms of orders as drafted by the Council and Judge Dwyer’s final decision, issued on 27 March 2019, confirmed terms for orders requiring Mr Baigent to undertake the remediation works in the wetlands on the property.
The nature of the appeal
[7] Appeals from the Environment Court to this Court may be brought on questions of law.5 An appellant is required to establish that the Environment Court applied a wrong legal test or came to a conclusion without evidence, or one to which, on the evidence, it could not reasonably have come, or that the Environment Court took into account matters which it should not have, or failed to take into account matters which it should have taken into account.6
[8] The essence of Mr Baigent’s appeal is that the Environment Court erred in the interpretation it adopted of naturally occurring wetland. Arguably, that expression ought to have been defined in a way that excluded land that had been used historically as the northern wetland had in this case. On Mr Baigent’s argument, it did not constitute naturally occurring wetland.
[9] The other primary argument was that Judge Dwyer was only able to make factual findings in vague terms that were too uncertain to justify a finding of breach of relevant resource management rules.
The statutory and regulatory framework
[10] Areas of wetland are recognised as a feature potentially having environmental importance. “Wetland” is defined in s 2 of the Resource Management Act 1991 (RMA) in the following terms:
5 Resource Management Act 1991, s 299(1).
6 Countdown Properties (Northlands) Ltd v Dunedin City Council [1994] NZRMA 145 (HC) at 153.
includes permanently or intermittently wet areas, shallow water, and land water margins that support a natural ecosystem of plants and animals that are adapted to wet conditions
[11] The introduction to chapter 30 of the TRMP includes the following general observations:7
… most of the remaining lowland wetlands … are in private ownership. International convention and national legislation recognise the importance and scarcity of this unique and valuable ecosystem and the need to preserve and protect it.
A preliminary study of wetlands in the District shows an almost total loss of naturally occurring wetlands from the Motueka and Moutere ecological districts, and significant losses (over 70 percent) of wetlands from Waimea and Golden Bay. …
[12] In addressing the aims of the TRMP in the same chapter, under the heading “Wetland Management”, the plan stipulates:
30.1.3.26To recognise the importance of naturally occurring wetlands and their margins as unique, scarce and vital ecosystems with a range of significant values, including natural character, and to protect and maintain or restore existing naturally occurring wetlands.
…
30.1.3.28To encourage, promote and support:
(a) the protection and maintenance or enhancement of naturally occurring wetlands;
(b) the construction of further wetlands; and
(c) the enhancement of wetland values in wetland areas that are not naturally occurring, including farm drainage systems, irrigation, stock water and amenity ponds and dams;
including the creation of wetlands following gravel extraction.
[13] Provisions in the TRMP regulating activities in naturally occurring wetlands include:
7 Tasman District Council Tasman Resource Management Plan at [30.0.1.7].
31.1.6.1 Discretionary Activities (Diversion and Take of Water (including by infilling) from Naturally Occurring Wetlands)
The diversion and take of water from a naturally occurring wetland including the diversion of water by the infilling of a wetland, is a discretionary activity.
A wetland subject to this rule includes permanently or intermittently wet areas, shallow water and land water margins that support a natural ecosystem of plants and animals that are adapted to wet conditions, and:
(a)wetlands which are part of river, stream and lake margins;
(b)natural ponds, swamps, marshes, fens, bogs, seeps, brackish areas, mountain wetlands, and other naturally wet areas that support vegetation adapted to living in wet conditions, and provide a habitat for wildlife;
(c) coastal wetlands; but excludes:
(d)wet pasture or where water temporarily ponds after rain, or pasture containing patches of rushes (juncus species);
(e)oxidation ponds;
(f)artificial wetlands used for wastewater or stormwater treatment;
(g)artificial farm dams and detention dams;
(h)land drainage ditches and farm drains;
(i)reservoirs for firefighting, domestic or community water supply;
(j)temporarily ponded rainfall.
Note: The edge of a wetland (i.e. where a wetland becomes land) is where terrestrial plant species become dominant and where the substrate changes from being permanently or intermittently wet to ‘dry land’. Where plants can be used as an indicator, a wetland becomes dry land where the plant species are those typical of terrestrial environments over more than 80 percent of the area.
A resource consent is required. Consent may be refused or conditions imposed.
17.8.5.1 Permitted Activities (Destruction or Removal of Indigenous Vegetation)
The destruction or removal of indigenous vegetation (excluding indigenous forest) is a permitted activity, if it complies with the following conditions:
(a)The site is not a naturally occurring wetland.
(b)The site does not include any of the following:
(i)indigenous dune vegetation;
(ii)salt herb fields;
…
(iv)indigenous vegetation on any area of karst that contains an area of fissured or fluted rock outcrops, a cliff face or any talus slope;
(v)indigenous vegetation containing small-leaved coprosma shrubs (Coprosma propinqua or Coprosma rigida) or small- leaved shrub daisy (Olearia virgata) on any lowland alluvial site (up to 600 metres above sea level) in the Buller catchment, between 600 and 1200 metres above sea level in the Takaka catchment (including the Cobb), and up to 950 metres in the Canaan Downs/Pikikirunga area.
Assessments of the property
[14]Judge Dwyer summarised the history of ownership of the property as follows:8
[7] Mr Baigent deposed that prior to his great grandfather's purchase of the Property in 1910, it had been subject to gold mining and quarrying activities. The flat areas of the Property were substantially cleared of native vegetation and grassed by the 1950s. At this time the Property was part of a larger farm which included an adjoining property to the west and there were about 250 sheep running on the two properties. The adjoining land was sold in the 1970s but the Property remains a farm running between 100 and 150 sheep under an informal lease to a local farmer. It contains two houses, sheds and yards.
[15] The Judge conducted a view for the purposes of the hearing and summarised his observations as follows:
[9] Today, the Property (as I saw it) comprises a mix of undulating pasture areas falling from the road access down towards flatter coastal paddocks, together with a combination of bush, forest and what appears at first glance to be wetlands. The southern and northern wetlands, where works had obviously been undertaken, are approximately 200m apart on the lower, flatter area of the Property. Parts of the wetlands (particularly the northern wetland) appear to be significantly infested with weed species such as gorse.
[16] The Council had previously identified the two wetland areas as such in March 2009. In April 2015, Council officers had observed work that appeared to have been undertaken in the wetlands comprising construction and/or excavation of several drains, clearance of native vegetation and the installation of gravel and draining coil
8 Tasman District Council v Baigent, above n 1.
within some of the drains. Mr Lurling assessed the areas as they stood at the time he inspected them in May 2015 and concluded that both northern and southern wetlands met the definition of a wetland, whichever assessment method was adopted.
[17] Mr Lurling’s report was referred to Mr Baigent who retained Rob and Jan Fryer, ecologists, to undertake their own ecological assessment. Their findings were that the existing wetlands would historically have been part of a much wider wetland system covering some four hectares of the Rangihaeata peninsula. They considered that comparatively little of the wetland was left, with little of that in its natural form. As analysed by Judge Dwyer, the Fryers’ report did not dispute that at least parts of the northern and southern wetland areas constituted wetlands but rather that they were areas of low ecological value. They observed that it was unlikely that the property would be a refuge for any threatened fauna due to lack of scale and connectivity. There had been multiple attempts made to drain the paddocks in which they were located, with stock grazing in the pasture areas and into the wetland until relatively recently.
[18] The Fryers undertook that assessment in May 2016 and their report was provided to the Council in October 2016. They undertook a further assessment in October 2017 when they concluded that:
… while the sites have certain ecological benefits, the modifications over generations of landuse do not qualify them as “significant wetlands” but rather regenerating lowland coastal forest with some elements of wetland habitat. The presence of the weed species of gorse and blackberry are the key elements here as they will not colonise an area subject to constant saturation.
The Environment Court reasoning
[19] The TRMP defined wetland in the same terms as in s 2 of the RMA.9 Definitions in the TRMP included that of “naturally occurring” as follows:10
… in relation to wetlands, means not specifically created by someone as a wetland, and includes wetlands formed by natural processes of reversion and sedimentation.
9 See [10] above.
10 Tasman Resource Management Plan at [2.2].
[20] Without analysing any other influences on their interpretation of naturally occurring wetlands, Judge Dwyer adopted a straightforward approach consistent with their natural and ordinary meanings. He answered the question as to whether the northern and southern wetlands were wetlands for the purposes of the TRMP by reference to six factual findings, none of which contemplated that those natural and ordinary meanings ought to be qualified by other influences.
Interpretation of “naturally occurring wetland”
[21] For Mr Baigent, Mr Bennion criticised the interpretation adopted by the Judge. He also criticised the validity of the six reasons cited by the Judge for his finding that the northern wetland is indeed a naturally occurring wetland as defined in the TRMP, largely because of the arguably wrong interpretation of the term that was applied by the Judge.
[22] On the approach to interpretation of a naturally occurring wetland, Mr Bennion cited the context provided in the introduction to chapter 30 of the TRMP, which recognises that there has been almost total loss of naturally occurring wetlands in some parts of the district, and over 70 per cent loss in others. On Mr Bennion’s interpretation, once lost, a wetland cannot subsequently re-appear in a naturally occurring state. He argued that a naturally occurring wetland must be the remnant of something that was there before and which has been recognised as a shrunken form of an original, larger naturally occurring wetland. Mr Bennion submitted that the terms of provisions 31.1.6.1 and 17.8.5.1 of the TRMP support his interpretation that the regulatory regime under the RMA is to apply to protect the remnants of what were originally present, in the sense of naturally occurring, as wetlands.
[23] Arguably, if the Judge had appreciated this interpretation as applying, he would have assessed the evidence through a different lens. There was no challenge to Mr Baigent’s evidence that the whole of the area in question had, in his father’s generation, been ploughed and sown in grass for pastoral farming uses. Mr Baigent deposed that the paddocks were so flat that they had played cricket on them. He does state that the areas designated as wetlands by the Council were never naturally occurring but are the outcome of interventions in drainage in the area over decades.
In particular, after the Baigent family sold land to the west of the present property around 1970, he suggests that the pattern of drainage generally from east to west was altered by new owners so that when culverts were installed they caused the land to drain back into the Baigent property, that is from west to east. He deposes that the effects only became apparent later because the area was hidden by scrub.
[24] Mr Baigent’s evidence contending that the areas had never been naturally occurring wetlands were somewhat at odds with the grounds for challenge argued in the appeal by Mr Bennion.
[25] Mr Bennion took evidence of intervening use of the whole area for pastoral farming to mean that the area in question, even if part of a naturally occurring wetland previously, had been lost in the sense acknowledged in the introduction to chapter 30 of the TRMP. Although I sensed he was not entirely comfortable with his submission when expressed as an absolute proposition, the essence of Mr Bennion’s argument on the facts was that once a previously naturally occurring wetland was lost, subsequent re-appearance of features of the land constituting a wetland could not thereafter mean that it was a wetland that was “naturally occurring”.
[26] Mr Bennion supported the interpretation he contended for by suggesting that the natural and ordinary meaning adopted by the Judge would lead to unintended adverse consequences for rural land use. He submitted that the drafters of the TRMP could not have intended that neglectful farmers would fall foul of an unforeseen change in designation of parts of their farm if they failed to maintain drains to an extent that areas reverted to wetland, including self-sown vegetation of the types recognised as distinctive of wetland areas. Arguably, Mr Baigent’s experience is an example of that where failure of drains occurs to an extent that transforms parts of what had been a pastoral farming area into an area where the ground moisture levels are consistent with a wetland, and the dominant growth is of flax and kanuka. Arguably, a commitment to replacing drainage systems to restore the area’s use for pastoral farming ought not to fall foul of regulatory requirements of resource management plans.
Analysis
[27] I am not persuaded that there is any justification for a gloss on the natural and ordinary meaning of the words “naturally occurring” as defined in the TRMP. That definition distinguishes such wetlands from those that are specifically created by human intervention, which is an understandable distinction in the resource management context. For instance, there is a distinction between the two types of wetlands contemplated in provision 30.1.3.28,11 where the territorial authority seeks to encourage, promote and support wetlands of two broad types, namely those constructed and those naturally occurring.
[28] The scope of wetlands that are treated as occurring naturally includes those formed by natural processes of reversion and sedimentation. The inclusion of that aspect of the definition of the phrase is an answer to Mr Bennion’s submission that once a naturally occurring wetland loses its original state, it could not exist again in a naturally occurring state. Absent specific intervention constructing the wetland, natural processes occurring over time to land that has been drained and then reverts to wetland fall within the scope of a wetland naturally occurring. Similarly for land that has been transformed by sedimentation into wetland.
[29] I do not accept that maintaining that basic division consistently with the ordinary meaning of the definition is inconsistent with the purposes or terms of the relevant provisions in 31.1.6.1 and 17.8.5.1 of the TRMP. The control over the diversion and taking of water by making it a discretionary activity is not appropriately extended to constructed wetlands, such as those excluded from that form of control in subclauses (d) to (j) of 31.1.6.1.
[30] Similarly, the destruction or removal of indigenous vegetation is generally a permitted activity, but that permission is excluded where that is to be undertaken in a naturally occurring wetland. That provision is consistent with the regulatory concern to control the environment of what remains of naturally occurring wetlands. There is no rationale for excluding from regulatory control areas that have reverted to such status where, for example, drainage to alter the status of wetland has failed.
11 Cited at [12] above.
[31] Nor am I persuaded that application of the ordinary meaning of the definitions would involve an unwarranted or unintended intrusion into farming operations on land that, if draining is not adequately maintained, is vulnerable to reversion into a wetland. As Ms Besier submitted for the Council, where such circumstances have arisen, the resource management regime appropriately contemplates that activity on such land to transform it once more from naturally occurring wetland (if deterioration has occurred to that extent) should be the subject of resource consent processes.
[32] It follows that I am not persuaded the Judge made any error in the definition of naturally occurring wetland as he applied it in both the interim and final decisions. Therefore there is no basis on which to revisit the accuracy of the factual findings cited by the Judge as reasons for his determination that the northern wetland was indeed a naturally occurring wetland. At least the majority of those points were a valid application of evidence before the Court to the test that adopted the natural and ordinary meaning of the phrase “naturally occurring wetland”.
Findings of breach too uncertain
[33] Mr Bennion’s second head of challenge to the Environment Court decision was that Judge Dwyer had been unable to find, with the necessary extent of particularity, the extent to which the activities carried out in the northern wetland had been conducted in contravention of either 31.1.6.1 or 17.8.5.1. The interim decision addressed it as follows:12
[37] It seems apparent from the evidence I heard and what I saw on my site visit that the works undertaken on Mr Baigent’s behalf were partly in wetlands, partly in existing natural flowing water bodies and partly in land drainage ditches and farm drains (not defined in the District Plan) which have been created over the years. At least some of the work would have been in contravention of Rule 31.1.6.1 but just how much it is difficult to say.
[38] Whatever the extent of breach of Rule 31.1.6.1 might be, what is clear is that the works in the streams (rivers as defined in RMA), land drains and farm drains also involved the removal of indigenous vegetation along the sides of those waterbodies when that vegetation was in a naturally occurring wetland. Accordingly, the removal of the indigenous vegetation was in breach of Rule 17.8.5.1. Further to that, what is apparent is that the swathes of land which were cleared of indigenous vegetation were used to deposit soil and other material dug out of the bed of the waterbodies. This had the effect of
12 Tasman District Council v Baigent, above n 1.
building up elevated mounds of soil which provide a base for and have subsequently been substantially invaded by pest species, such as gorse, blackberry and the like.
[34] The interim decision does not contain any attempt to quantify the extent of the areas that are appropriately treated as naturally occurring wetlands, or any measure of the relative seriousness or materiality of the breach of the relevant terms of the TRMP by the works that have been undertaken on Mr Baigent’s property.
[35] The final decision addressing the terms for enforcement orders recorded differences between Mr Baigent and the Council. The orders as proposed by the Council require Mr Baigent to appoint an appropriately qualified and experienced ecologist to prepare a plan for the remediation of the two wetland areas within the property. Mr Bennion, on Mr Baigent’s behalf, had challenged the draft terms of orders proposed by the Council for not adequately identifying the extent of the area requiring restoration or remediation work. The Judge commented on this concern as follows:13
The position of the wetland areas “on the ground” was readily apparent to the Court on visiting the Property and it is difficult to see why it should not be just as apparent to an ecologist acting in accordance with his/her professional obligations to the Court …
[36] Arguably, if the Court could not delineate the area treated as naturally occurring wetland so as to distinguish it from drains and other features in farmland, the Environment Court could not be satisfied of the extent of the area in which unauthorised works had occurred that ought to have been the subject of an application for resource consent. This submission rested on the premise that the Environment Court had to be satisfied of breaches beyond reasonable doubt.
[37] On the last point, Ms Besier submitted that Mr Bennion’s argument confused the application of the criminal standard, which does apply in criminal prosecutions for offences under s 338 of the RMA, with the conventional standard required in civil proceedings, including applications for enforcement orders. She cited numerous
13 Tasman District Council v Baigent, above n 3, at [7].
decisions in support of the onus of proof being the civil standard.14 Those authorities show the Environment Court and its predecessor, the Planning Tribunal, consistently requiring local authorities applying for enforcement orders to satisfy the Court on the balance of probabilities, having regard to the seriousness of the matter at hand.
[38] Once the correct onus of proof is applied to the Environment Court’s reasoning, Ms Besier submitted that no error could be made out. It was unnecessary for the Council to define precisely the area in respect of which it contended there had been breaches, and both their existence and extent were a matter for the Court to assess in light of all the evidence before it.
[39] It is understandable that a property owner in Mr Baigent’s position would complain that if the local authority cannot mount its application for enforcement orders against him by defining the area in which breach of relevant rules has allegedly occurred, then the Court should not accept that a claim of such breach has been adequately made out. However, on the present facts and in the context of works in the nature of laying new drains and clearing native vegetation that has grown in wetland areas, breach of the relevant rules can be made out without the Council being required to precisely define the limits of the area in which it has occurred.
[40] I am not satisfied that the Judge erred in granting the Council relief notwithstanding uncertainty as to the precise limits of the area in which activity constituted a breach. I am not persuaded that there is any error by the Judge reaching the conclusions he did in the interim decision without requiring (or finding) defined areas within which non-conforming activities were carried out in naturally occurring wetlands.
Result
[41]Accordingly, the appeal is dismissed.
14 Auckland Council v Diack Trustee Co Ltd [2011] NZEnvC 84 at [4] and [19]; The Friends of Sherwood v Auckland Council [2018] NZEnvC 178 at [84]; Christchurch City Council v Ivory [1994] NZRMA 442.
Costs
[42] The Council is entitled to costs. I will receive memoranda if quantum cannot be agreed.
Dobson J
Solicitors:
Bennion Law, Wellington for appellant
Tasman Law Limited, Nelson for respondent
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