Carruthers v Otago Regional Council

[2013] NZHC 632

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2012-412-36 [2013] NZHC 632

JOHN ANDREW CARRUTHERS

Appellant

v

OTAGO REGIONAL COUNCIL

Respondent

Hearing:         7 March 2013

Appearances: C S Withnall QC for the Appellant

A Logan for the Respondent

Judgment:      27 March 2013

JUDGMENT OF FOGARTY J

Introduction

[1]      This is an appeal against convictions under the Resource Management Act

1991 (RMA).  Section 338(1) of the RMA makes it an offence to contravene s 13 of the Act.  Section 13(1) of the Act reads:

13     Restriction on certain uses of beds of lakes and rivers

(1)     No person may, in relation to the bed of any lake or river,—

(a)     use, erect, reconstruct, place, alter, extend, remove, or demolish any structure or part of any structure in, on, under, or over the bed; or

(b)     excavate, drill, tunnel, or otherwise disturb the bed; or

CARRUTHERS V OTAGO REGIONAL COUNCIL HC DUN CRI-2012-412-36 [27 March 2013]

(c)     introduce or plant any plant or any part of any plant (whether exotic or indigenous) in, on, or under the bed; or

(d)     deposit any substance in, on, or under the bed; or

(e)     reclaim or drain the bed—

unless expressly allowed by a national environmental standard, a rule in a regional plan as well as a rule in a proposed regional plan for the same region (if there is one), or a resource consent.

[2]      In  October  2010,  a  water  resource  scientist  with  the  Regional  Council happened to be in the vicinity of the lower portion of the appellant’s farm, travelling along Ngapuna Road in the Taieri Valley.  Ngapuna Road runs just west of the Taieri River and east of the Rail Trail along the disused Otago Central Railway.  A gully carrying water on the appellant’s farm, at its lowest boundary, closest to the Taieri River, flows through a culvert at the boundary of the farm under Ngapuna Road. The scientist noticed that the water was significantly discoloured and stopped to investigate it.  He looked upstream and noticed that the bed of what he considered to be a stream had been heavily pugged by livestock, and to the south of the stream on the true right bank, he looked at material which appeared to have been recently deposited by a digger.  The digging became the subject of one charge, and allowing the livestock to disturb the bed of a river became the subject of the second charge, both being prohibited by s 13(1)(b), absent any consent.

The conviction

[3]      The  District  Court  (Judge  L  J  Newhook,  an  Environment  Court  Judge) convicted the appellant on the two charges, having found that the body of water was a stream or modified watercourse, so that its bed was the bed of a river.  Therefore s 13(1)(b) was breached, both by digging and by allowing the livestock to disturb it by pugging.  That is a summary I have made of the Judge’s findings in [55] and [56] of his judgment.[1]   These two paragraphs will be examined in more detail later in the

judgment.

[1] Otago Regional Council v Carruthers DC Dunedin CRI-2011-002-219, 4 April 2012.

[4]      Section 338(1)(a) provides:

338    Offences against this Act

(1)     Every person commits an offence against this Act who contravenes, or permits a contravention of, any of the following:

...

(a)     Sections 9, 11, 12, 13, 14, and 15 (which impose duties and restrictions in relation to land, subdivision, the coastal marine area, the beds of certain rivers and lakes, water, and discharges of contaminants):

The ground of appeal

[5]      The ground of appeal is essentially one of law.  Mr Withnall QC submits that Judge Newhook applied the wrong legal test to the question of whether or not the watercourse in question was a river, as defined by the RMA, or whether it was an artificial watercourse, and wrongly found that it was a river.

[6]      Section 2 of the RMA defines a river as:

2       Interpretation

(1)     In this Act, unless the context otherwise requires,—

...

river means a continually or intermittently flowing body of fresh water; and includes a stream and modified watercourse; but does not include any artificial watercourse (including an irrigation canal, water supply race, canal for the supply of water for electricity power generation, and farm drainage canal):

[7]      A “modified watercourse” is not defined further by the statute.  Mr Logan for the respondent submitted that a modified watercourse has both natural and artificial elements.   A watercourse may be modified by activities such as damming, channelling, straightening, diversion, bridging or culverting.

The material facts

[8]      The appellant’s farm is situated on the west side of the Strath Taieri Plain. The farm lies on part of a huge alluvial fan, created by runoff from the range of hills immediately to the west, the Rock and Pillar Range.  Numerous creeks drain these hills across the alluvial fan down to the Taieri River.   Some of these creeks are named, some are not.  The closest named creek to the appellant’s property is to the south  and  west,  and  is  called  Six  Mile  Creek.    There  are  other  minor  creeks, unnamed, to the north of Six Mile Creek, two of which enter the appellant’s property. The unnamed creek in question shows  as a blue line on a 1989 map, Infomap

260-H43 (Middlemarch) produced by the Department of Lands and Survey, as entering the appellant’s property, and then ending with a blue arrow.  Some hundreds of metres later, but more or less downstream, a blue line of a creek commences again, which creek now drains into a dam on the property.  That dam in turn drains into a ditch/bed which the scientist saw from Ngapuna Road, and which had been the subject of digging and pugging.

[9]      The  water  flow  of  Six  Mile  Creek  has  been  diverted  by  an  artificial watercourse which takes water north, splitting  into two channels, one  of which discharges into the upper reaches of the unknown creek in question.

[10]     The trial Judge accepted all of the evidence of the appellant.   It was the appellant’s evidence that but for the artificial watercourse diverting water from Six Mile Creek into the upper reaches of the unnamed creek, this creek would not flow past  the  point  on  the  map  where  the  blue  arrow  indicating  the  creek  goes underground.  On the ground this is an area dominated by cutty grass.  It is flat, and has minor characteristics of a very small wetland, which terminates in an artificial stone culvert and drains to an artificial ditch.  This was dug some indeterminate time ago.  On the appellant’s evidence, it now always runs water past the blue arrow/the cutty grass flat, because of the diversion of water through the artificial watercourse from Six Mile Creek to the upper reaches of the unnamed creek.

[11]     Downstream of the cutty grassland and the manmade ditch, the water then flows into a natural gully.  This gully has been clearly formed by past water flows. This gully has a sinuous character, and this sinuosity was relied upon by Dr David Barrell, a senior scientist at the Institute of Geological and Nuclear Sciences, who was a principal expert witness in the trial.  He has previously studied this area, which he describes as “the alluvial fans on the Strath Taieri Plain from Middlemarch North

to Six Mile Creek”.  He says: [2]

In the general area of Middlemarch, the southeast face of the Rock and Pillar Range has been “eaten back” north-westward by the actions of streams. This has produced an array of valleys and amphitheatres on the range-front. Erosion in the stream catchments has produced gravelly, sandy and silty debris  that,  during  floods,  has  washed  out  onto  the  Strath  Taieri  Plain, forming geometrically distinctive accumulations of sediment that are known as alluvial fans.  These fans extend towards the edge of the river plain of the Taieri.

[2] Statement of evidence at [16].

[12]     The appellant’s farm is bounded to the west, uphill, by State Highway 87, and, at the base, by the Ngapuna Road.   Preparing his evidence for the trial, Dr Barrell drove along State Highway 87, that is to the west of the property (along the appellant’s western boundary), and along Ngapuna Road.   He did not go onto the farm.  He did not walk the line of the unnamed creek down to the cutty grass area, nor the line of the excavated ditch, nor down to the natural gully and onto the dam, nor the line from the dam to the road.  He did view a video of these features taken from a helicopter flyover.

[13]     It was Dr Barrell’s evidence that the map showing the watercourse to end with the blue arrow, means that the opinion of the map writer was one of a stream disappearing into  the  ground.    Dealing with  the water flows  on  the appellant’s property, he said:

The most telling characteristic attesting to this being a natural stream is the sinuous  nature of its incised  valley,  especially just downstream of  State Highway 87, and in the vicinity of the Central Otago Rail Trail.   In my opinion it is implausible that such an irregular channel would have been constructed by humans.

The alluvial fans of the assessment area may be regarded as former river beds.  In recent times, at least the past few hundred years, and more likely

several to many thousands of years, the streams have adopted much more localised channels or valleys on their fans. The alluvial fans generally would at one time or other in the deep prehistoric past, have qualified as rivers.  But as a result  of natural environmental changes, perhaps including climatic improvements since the last ice age, or lack of recent earthquakes on the Hyde Fault, the natural drainage courses have become localised in shallow channels or valleys draining down the alluvial fans.

Without doubt, “un-named stream” has been modified, by enhancement of its flow via water races derived from Six Mile Creek, and straightening of its course near Robertslee farm [the appellant’s property] which aerial photos reveal to flow more or less on the same line as its natural channel.

In my opinion, “un-named stream” is a modified natural watercourse.

[14]     His evidence, at the end, contains a handwritten note, apparently signed by him, saying that he had not viewed the middle section of the watercourse.  I treat that as a proper and prudent qualification.

[15]     In cross-examination, he said a little more on the nature of the landform features that we observe today.  He was being questioned on the characteristics of alluvial fans.  He said:

A distinction to make in this question is that of, on most days when you observe a stream [it is under] the weather conditions of the season.  Most of the landform features that we’re examining in this, which is the incised channels, the sinuous channels, are things which only form or modify under conditions of maximum flow, and so I think that by and large form.  So [it is important] to note that [most] landform features form and are modified under more extreme conditions than most of us observe day-to-day.

[16]     The appellant’s evidence was that, putting aside the diversion from Six Mile Creek, that only “if there was sufficient rain” does water flow to the state highway on the immediate west of his property into the culvert, across his property, through his ditch and down to the dam, and thence through the dam to Ngapuna Road, through the critical section of the stream.  The Judge found as a fact that the water

would flow “only if there was sufficient rain”,[3]  absent the diversion from Six Mile

Creek.

Findings of the Judge

[3] See Otago Regional Council v Carruthers at last sentence of [51], [53] and [55].

[17]     The key findings of the Judge are contained in [55] and [56]:

[55]     As I have already indicated, it seems to me to be highly relevant to draw  together  the  slightly  academic  but  very  detailed  evidence  of  Dr Allibone and Mr Barrell, particularly that of Mr Barrell; together with the evidence of the Defendant and his witnesses, and to see what the picture is of an overall system that I consider has been clearly established beyond reasonable doubt in the evidence. That is, of how the water system coming down from the Rock and Pillar range operated originally, and still largely does in a natural sense. It is then important to factor into it the man-made modifications that have been made at Six-mile and, perhaps even more importantly, the ditch near Robertslee. I find beyond reasonable doubt that the evidence of the expert witnesses, together with the honest evidence of the Defendant and his two witnesses, particularly under questioning, is that there is a stream system overall coming down this alluvial fan, modified however in places as in the races and the ditch, that spreads water down the alluvial fan,  sometimes  disappearing  underground,  sometimes  emerging,  and  no doubt spreading in sheet flows and/or channels in times of flood and, where not conducted in the manmade elements, operating or flowing in a sinuous or meandering way, especially in the critical 339 metres between the dam and Ngapuna Road where the excavation and the pugging had occurred. I find on the evidence of the expert witnesses, and even more  particularly on the evidence of the Defendant and his witnesses that, at least in times of flood, there is natural flow in that critical part of the system, above Ngapuna Road, and that the fact of that water being there and having got there by largely natural means, albeit slightly modified in some places, brings us squarely to the point where to use Mr Logan's emphasis, that the body of water can be described in the manner of the definition of river in the Act, as a stream or modified  water  course,  and  that  it  does  not  include  any  artificial  water course.

[56]     I accept the submissions of Mr Logan that to hold otherwise, that it [sic] that there was an artificial water course involved, one would have to be looking at a river bed created by the intervention of man, and having regard to the findings in the other cases, with which I am in agreement, the water course of an artificial body of water would need to be found to be unconnected with any natural water course. It follows from the findings of fact that I have made that on the criminal standard, beyond reasonable doubt, that the inter-connection of these features is such that what we have here is a continually or intermittently flowing body of fresh water, including a modified water course.

[18] My earlier summary of the findings of the Judge is taken by combining the last sentence of [55], beginning “I find...” and [56]. The last sentence of [55] finds as a fact that there is natural flow in the watercourse immediately above Ngapuna Road, where the digging and pugging was observed. Secondly, that the water was there “by largely natural means”. Thirdly, the body of water (by which I assume the

Judge means the critical part of the system above Ngapuna Road) “can be described in the manner of the definition of river in the Act, as a stream or modified water course, and that it does not include any artificial water course”.

[19]     At [56] the Judge considered that to hold otherwise, that it was an artificial watercourse,  such  artificial  body  of  water  “would  need  to  be  found  to  be unconnected with any natural water course.”

Analysis

[20]     For the appellant, Mr Withnall QC argued that the flow of water upstream of Ngapuna Road, downstream of the dam, was not a river.  A key consideration is how to characterise the significance of the flow being maintained by the diversion of water from Six Mile Creek, which diversion begins as an artificial watercourse? Another key issue is the interconnection, if any, between the bed of the stream qualifying as riverbed (whether artificially constructed or modified, or sometime in the past being riverbed), on the one hand, with water flows on the other.

[21]     Mr Logan for the respondent summarised his client’s case as follows.   He said that the appellant argues that because the water is race fed, the flow is artificial and cannot constitute a river.  He submitted that argument misstates the legal test.  It is not consistent with the first part of the definition of river in s 2 of the RMA:

a continually or intermittently flowing body of fresh water;

There is no qualification in that phrase based on how water is provided.  A flowing body of water is only excluded  if it is in an artificial watercourse.   The reach immediately upstream of Ngapuna Road is not an artificial watercourse.  In addition, the  argument  ignores  the  evidence,  that  there  is  a  flow  path,  from  the  upper catchment through the appellant’s farm to the Ngapuna Road culvert.   (Emphasis added.)

[22]     In oral argument, Mr Logan varied that submission.  He argued that even if one were to exclude the inflow of water artificially diverted from Six Mile Creek, there were still sufficient water flows, after rain, to meet the criterion of “intermittently flowing body of fresh water” and, therefore, it was a river.

[23]     I prefer to examine the issues in this order:

(a)      Would this current watercourse from State Highway 87 to Ngapuna Road (ie, across the farm) be a “river” absent the inflows of water from the diversion from Six Mile Creek?

(b)If no, did the bed of the current watercourse, particularly below the cutty grass flat, become a river because of the inflows from Six Mile Creek?

(c)      Can the last section, the scene of the changes (the ditch/bed, 339 metres long, between Ngapuna Road and the dam) be isolated as river or not?

[24]     The issues could be approached the other way around, but there is a risk that that analysis would obscure the question of whether or not this is naturally a river. For reasons which will become apparent in my analysis, whether or not this watercourse is naturally a river is very relevant to the ultimate application of the RMA to the conduct of the appellant.

Issue (a) - Would this current watercourse from State Highway 87 to Ngapuna Road (ie, across the farm) be a “river” absent the inflows of water from  the diversion from Six Mile Creek?

[25]     All counsel were agreed that the definition of river and the offence provisions all have to be read purposefully to the overall purposes of the RMA, particularly s 5. Section 5 of the Act provides:

5        Purpose

(1)     The purpose of this Act is to promote the sustainable management of natural and physical resources.

(2)    In this Act, sustainable management means managing the use, development, and protection of natural and physical resources in a way, or at a rate, which enables people and communities to provide for their social, economic, and cultural wellbeing and for their health and safety while—

(a)    Sustaining the potential of natural and physical resources (excluding minerals) to meet the reasonably foreseeable needs of future generations; and

(b)     Safeguarding the life-supporting capacity of air, water, soil, and ecosystems; and

(c)     Avoiding,  remedying,  or  mitigating  any  adverse  effects  of activities on the environment.

[26]     Natural and physical resources is defined in s 2, as follows:

Interpretation

(1)     In this Act, unless the context otherwise requires,—

...

Natural and physical resources includes land, water, air, soil, minerals, and energy, all forms of plants and animals (whether native to New Zealand or introduced), and all structures:

[27]     It should be noted immediately that the definition is not confined to natural

resources, but includes “and all structures”.

[28]     With that extension of the definition in mind, s 5(2) is properly understood as pursuing sustainable management of both natural and manmade resources.   The definition of river, set out above, distinguishes natural rivers, artificial water races and modified watercourses.  Modified watercourses fall within the definition of river. Hence, if a natural river is modified, the modification does not mean the watercourse loses its natural character of being a “river”.  Whereas, if the watercourse is wholly artificial, then it is not a “river”.   This is so even if the water in the artificial watercourse has been taken from a “river”.   Almost all artificial watercourses will take water from a lake or “river”, and may discharge some of that water back (eg

irrigation  races).     I  do  not  think  there  is  any  disqualification  preventing  a watercourse being artificial because it is connected to a river.  And so I do not agree with Judge Newhook’s observation to the contrary in his judgment at [56]; see [19] above.

[29]     Mr Withnall for the appellant stressed that the definition of river does not refer to the bed, whether it be a natural or artificial bed carrying the water.   He effectively argued that the words “river means a continually or intermittently flowing body of fresh water” were referring to a natural flow.  He argued this because of the qualification that such a continually or intermittently flowing body of fresh water does not include any artificial watercourse.  The exclusory part of the definition uses the manmade structures to exclude the application of the definition of “river”.

[30]     Mr Logan stressed, however, that the reason why s 13 prohibits disturbing the bed is to protect the natural biological values of the river, as captured in subs (2A):

(2A)  The activities are—

(a)     to enter onto or pass across the bed of a lake or river:

(b)     to damage, destroy, disturb, or remove a plant or a part of a plant, whether exotic or indigenous, in, on, or under the bed of a lake or river:

(c)     to damage, destroy, disturb, or remove the habitats of plants or parts of plants, whether exotic or indigenous, in, on, or under the bed of a lake or river:

(d)     to damage, destroy, disturb, or remove the habitats of animals in, on, or under the bed of a lake or river.

[31]     In most situations across New Zealand there is no difficulty applying this definition of river.  Artificial watercourses, such as irrigation channels, water supply races, canals and farm drainage canals, are all usually connected only at intake or discharge to rivers.   Once the water is taken from a river or a lake and is in the artificial  watercourse,  s 13  does  not  apply.    This  is  so  even  if  the  artificial watercourse develops biologically to sustain plant, insect and fish life.  This is the case in many irrigation races.

[32]     This case presents as a set of facts not expressly anticipated by Parliament, inasmuch as it concerns an existing gully.  Where Parliament has not anticipated the facts, there are always difficult problems of statutory interpretation.   The problem posed by this case is that the water flowing across the appellant’s farm does not fall into the normal simple context of an artificial watercourse, being something quite distinct from a natural river.

[33]     To appreciate this, it is necessary to envisage what would happen if there had been no artificial watercourse taking water from Six Mile Creek across to the head of the unnamed creek.  A ditch near Robertslee has been dug in the past between the cutty grass minor wetland and a natural old waterbed of a sinuous character further downstream.[4]     The purpose of this ditch was to take the improved flow of the unnamed creek, as augmented by the diversion from Six Mile Creek, down to the gully that flows only after significant rains.  This gully is not just an indentation in the ground, it is a significant waterbed.   It is obviously an “incised” “sinuous” “channel” formed by extreme conditions in the past.[5] The problem is that the alluvial fan is covered with many such gullies or channels, which have, at some point in time, been the means for taking very large flows of fresh water, sufficient to dig out such channels.  On Mr Carruthers’ unchallenged evidence, corroborated by the map, in normal circumstances, the unnamed creek stops “flowing” around the cutty grass area.  The watercourses below that (the blue line appearing after the break) flow only when there has been sufficient rain to generate a flow.

Intermittency

[4] This ditch is near the homestead, and is, I think, the same ditch referred to by Judge Newhook at

[55] as “the ditch near Robertslee”.

[5] See above, [14] and [15], evidence of Dr Barrell.

[34]     Judge Newhook in his last sentence at [55] of his decision based his finding not on the presence of the water from Six Mile Creek, but on the evidence that “at least in times of flood, there is natural flow in that critical part of the system”.   That

finding applies the standard of “intermittently” in the definition of river.

[35]     “Intermittently” is not defined.   It is plainly a standard.   By that I mean reasonable persons can disagree as to whether or not flow is intermittent.   When applying a statutory standard it is necessary to apply it against the purpose for which it is inserted.  Otherwise the standard is not being applied for its statutory purpose. In  my view, the reason  for the  intermittent  standard has  to  be found  against  a consideration of the RMA values attaching to rivers.  The first source of insight into these values are the terms of s 13.  Section 13, read as a whole, is intended to protect the riverbed, (subsection (1)), and to protect the natural life of a river (subsection (2A)).   Therefore the standard “intermittently” should be applied or not to protect these goals in s 13.

[36]     There is little evidence in this case as to whether there would be any river life in the watercourse downstream of the cutty grass wetland by reason of water flowing there after substantial rain.  There is a blue line on the 1989 map, appearing some distance below the cutty grass wetland.  Whether the intermittent flows established the river values in  s 13(2A) was not proved at the trial.

[37]     Turning to s 13(1), one examines the merit of protecting riverbeds subject to intermittent flows.  There are, of course, many creeks in New Zealand that can be reasonably found to qualify as “rivers” because they do flow intermittently.  Many side creeks of high country rivers fall into that category.  They do have a bed which regularly fills and, in extreme weather environments, floods, as in extends beyond its natural bed.   You can say that they are streams, even though in late summer and autumn they may have dried up, at least visibly from the surface.  It is important that the beds of those side creeks not be disturbed, as they fulfil an important function of clearing water from a catchment without doing damage to the bush on either side of the creeks.

[38]     Similarly, there are riverbeds in pastoral areas which have the same function. One thinks immediately of the Selwyn River in Canterbury.  Many Cantabrians have never seen water in that riverbed.  It does not mean that the riverbed does not have a function and a need for it to be preserved.

[39]     I have canvassed two reasons for the standard of  “intermittently”.   Both derived from the two main parts of s 13.  Neither of these reasons appear to apply here, but there was no expert evidence on the point.

[40]     It was agreed by counsel that the Court could take judicial notice of the fact, supported by the expert evidence before the Court, that in times of major storms sheets of water would flow from the Rock and Pillar Range, across the alluvial fans, down to the Taieri River.  However, it is important not to treat those sheets of water as  a  river.    This  is  because  of  the  definition  of  bed  in  relation  to  any  river, particularly s 2(a)(ii):

Bed means,—

(a)     In relation to any river—

...

(ii)     In all other cases, the space of land which the waters of the river cover at its fullest flow without overtopping its banks; ...

[41]     This definition makes it clear that Parliament never intended to suggest that floodwaters, or flows that follow only from major storms, fell within the definition of river.   On the contrary.   In that sense, Mr Logan is right that one cannot fully understand the definition of river in s 2 without taking into account the definition of bed.

[42]     I am satisfied that it was not proved that there would be a continual or intermittent flow of water in the current watercourse from State Highway 87 to Ngapuna Road, absent the inflows of water from the diversion of Six Mile Creek. The unnamed creek, down to where the map indicates it disappears into the ground, would be a “river” on the evidence.   The 1989 map indicates the blue line starts again, but it was not suggested that the map is proof of an existing watercourse.  The Judge accepted the appellant’s evidence of no flows, except after sufficient rain.  On the evidence at the trial, the excavated ditch near Robertslee and the gully/channel below would not be a “river”, without the artificial diversion from Six Mile Creek. Prior to that diversion, that system downstream of the cutty grass wetlands was not a watercourse, a stream, and so a “river”.  It was not proved that introducing water into that system merely modified an existing watercourse.

Issue (b) - If no, did the bed of the current watercourse, particularly below the cutty grass flat, become a river because of the inflows from Six Mile Creek?

[43]     Because of the augmented flow of the unnamed creek with the water from Six Mile Creek, the watercourse below the cutty grass wetland has the characteristics of a stream.  It is nowadays continuously flowing.

[44]     The  stable  presence  of  water  creates  a  stream  environment  with  all  the potential stream-like characteristics of plant, insect and fish life that go with side streams draining into a river.  This of course is qualified if cattle and machinery are able to disturb the bed and discolour the waters.

[45]     On the other hand, where water is diverted  into an otherwise unused bed, in order to provide water for irrigation and animal husbandry, treating the subsequent watercourse  as  a  river  might  well  frustrate  the  effective  use  of  that  water  for irrigation and animal husbandry.

[46]     Normally, these matters would be resolved by a consent process associated with an application to take water.  These environmental and economic development concerns would be addressed by conditions.

[47]     The Court was not favoured with the legal basis of the taking from Six Mile Creek, or how long it had been in place.   It is not discussed in the sentencing decision, either.

[48]     At the sentencing hearing, the Otago Regional Council accepted that there was no deliberate breach of the Act or the rules of the plan.  The Judge found that Mr Carruthers had an honest belief he could clean out the creek.

[49]     I surmise the reason for the appeal is because of the long term resource management implications of the finding that the watercourse is a river.  Technically, the finding is only as to the bottom 339 metres, but probably has ramifications, at least  upstream  as  far as  the start  of the Robertslee ditch  just  below the grassy wetland.

[50]     If, instead of using the ditch and the gully/channel to take the water to the dam,  and  if  there  had  been  a  concrete  pipe  taking  overflow  from  the  dam  to discharge off the boundary of the property into a streambed going down to the Taieri River, there would be a clear issue as to whether that was a water race or a modified watercourse.    Should  there  be  any difference,  because  instead  of  going  to  that expense the farmer has dug a ditch and taken advantage of a pre-existing gully?

[51]     I am inclined to the view that Mr Logan is right, that it does not matter what the source of the water is.  But, on the other hand, the term “modified watercourse” suggests that there is a pre-existing natural watercourse before it is modified.  In the wording of the definition of “river”, modified watercourse is a natural watercourse, which has been modified.  Prior to modification therefore it was a “continually or intermittently flowing body of water”.   But prior to the diversion, it has not been proven that this system was flowing intermittently sufficient to support river values, captured in s 13.  Therefore it cannot be found to be an existing watercourse, which has been modified.

[52]     Once “modified watercourse” has not been proven, it follows that it can be an artificial watercourse, for the definition of river proffers only three options: river, modified watercourse, and artificial watercourse.

[53]     I said above that I was inclined to the view that it does not matter what the source of the water is.  I have reached the conclusion that it was not proved to be a modified watercourse, without having to make a decision on whether Mr Logan’s submission to that effect is correct in law, or consider the cases cited.  However, I go on to distinguish those cases.

[54]     There is no case decided which contains as a material fact water taken by artificial watercourse from one natural river into another natural river.  In Johnston v Dunedin City Council,[6]  Silverstream had been  diverted into an artificial control channel  to  prevent  meandering  and  flooding.    The  Planning  Tribunal  held  the

[6] Johnston v Dunedin City Council Planning Tribunal Dunedin C64/94, 16 July 1994.

artificial  channel  did  not  make  the  Silverstream  an  artificial  watercourse.    In

MacLaurin v Gisborne District Council,[7]  the Court considered whether overflow from natural springs which entered the “Brewery Springs drain” made the drain a river.   It found the drain was likely to originally have been a natural watercourse flowing from the springs.   It had been extensively modified through straightening, weed control, stock grazing and other land management practices.  It was held to be a modified watercourse.   In Southland Regional Council v Southern Pastoral Holdings Ltd, a watercourse had been extensively modified for drainage purposes, including channelisation in parts, and was held to be a river, as a modified watercourse, not an artificial watercourse.   Again, there was no issue of the introduction of an artificial flow of water into the stream.  In Federated Farmers of

[7] MacLaurin v Gisborne District Council EnvC Auckland A159/2003, 18 September 2003.

New Zealand (North Canterbury Province Inc) v Canterbury Regional Council,[8] the

subject was the Cust River.  That river has historically terminated at the Mandeville Swamp.  The Cust main drain was cut through the Mandeville Swamp, conveying both water from the Cust River and water drained from the wetland.  The Court held that the Cust main drain was a modified watercourse ([46]).   This last case is the closest case on the facts.  But it is a case of releasing naturally flowing water from a swamp.  The canal was clearly a modified watercourse of an existing river.  Not so here.

Issue (c) - Can the last section, the scene of the changes (the ditch/bed, 339 metres long, between Ngapuna Road and the dam), be isolated as river or not?

[8] Federated Farmers of New Zealand (North Canterbury Province Inc) v Canterbury Regional

Council (2002) 8 ELRNZ 223 (EnvC).

[55]     Because of my conclusions on issue (b), the system including this part is also not proven to be a modified watercourse.   But I make some further observations. The augmented flow of the unnamed creek flows into the pre-existing gully/channel, which may have been formed by a river falling within the definition of river, many hundreds of years or more before, but has fallen into disuse by natural changes in flows across the alluvial plain.   The water in this gully/channel then flows into a

dam, from which water is drawn to artificially irrigate parts of the farm.

[56]     The dam then can discharge down a 339 metre watercourse to the culvert under Ngapuna Road, and so leaves the property.  There were no findings as to the history of this particular length of watercourse.  On the probabilities, the bed appears to be natural. The Judge found:

[14]     The witness went upstream from Ngapuna Road, noting that the stream in this area up to a dam was somewhat meandering, was not in a straight line, and appeared to follow the contour of the land, and had the appearance of a natural water course. Water was flowing in the creek at the time of his inspection.

[57]     The fact that this was a natural bed does not mean it was a watercourse of water  flowing  continually  or  intermittently  prior  to  the  diversion,  for  the  same reasons set out above, under issue (a), applying to the whole system downstream of the cutty grass wetland.   The evidence is that  it would only flow if there was sufficient rain.  It is possible that at this lower level it might have functioned as a river, given the blue line on the 1989 map, and the possibility of water from the wetland re-emerging on the surface.  But it was not proved.

Conclusion

[58]     For these reasons, I do not think that the informant has proved that this set of facts amounts to disturbance of a riverbed and so to breaches of s 13.  Therefore, it has not been proved that there were two contraventions of s 338(1)(a).  The appeal is allowed.  The convictions are set aside.  I do not direct a rehearing. Any outstanding issues can be considered under the Act, otherwise than by prosecution.

[59]     Costs are reserved.   If the parties cannot agree costs, I will receive written submissions of no more than five pages each, filed simultaneously, after having been exchanged in draft.

Solicitors:

R J Cassidy, Solicitor, 9 Moray Place, Dunedin

C S Withnall QC, Dunedin –  [email protected]

Ross Dowling Marquet Griffin, Dunedin –  [email protected]