Dewhurst Land Company Limited v Canterbury Regional Council
[2018] NZHC 3338
•14 December 2018
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2018-409-000051
[2018] NZHC 3338
BETWEEN DEWHIRST LAND COMPANY LIMITED AND MICHAEL GRAHAM DEWHIRST
AppellantsAND
CANTERBURY REGIONAL COUNCIL
Respondent
CRI-2018-409-0000053 BETWEEN
DEWHIRST LAND COMPANY LIMITED AND MICHAEL GRAHAM DEWHIRST
AppellantsAND
CANTERBURY REGIONAL COUNCIL
Respondent
Hearing: 16 August 2018 & 21 November 2018 Appearances:
R J Somerville QC, J M van der Wal and J A Robinson for Appellants
JLS Shaw for Respondent
Judgment:
14 December 2018
Reissued:
17 December 2018
JUDGMENT OF GENDALL J
NOTE:
This judgment has been recalled and re-issued due to a typographical error in para [34], line 8 where the word “no” has been replaced with the word “a”.
DEWHIRST LAND COMPANY LTD v CANTERBURY REGIONAL COUNCIL [2018] NZHC 3338
[14 December 2018]
Introduction
[1] Dewhirst Land Company Ltd (Dewhirst Ltd) and Michael Graham Dewhirst (Mr Dewhirst) (together, the appellants) seek leave under s 296 of the Criminal Procedure Act 2011 (the CP Act) to appeal two judgments of the District Court. The judgments both relate to the resolution of disputed facts for sentencing purposes regarding prosecutions of the appellants by the Canterbury Regional Council (the Council) under the Resource Management Act 1991 (RMA).1 Those prosecutions were for breaches of the s 13 RMA requirements restricting certain uses of a river bed and the s 14 RMA requirements relating to water diversion restrictions in a river. The main issue on this appeal concerns the proper interpretation of the term a “bed” in relation to a river as defined in the RMA.
Background
[2] Dewhirst Ltd owns farming land adjacent to and south of what is known as the right bank of the Selwyn River, near Dunsandel, Canterbury. Mr Dewhirst is the director of the company and undertakes most of its day-to-day management.
[3] Around May 2016, the appellants consulted with the Council about the consents required to develop their land adjacent to the river. Council officers indicated that the northern part of the appellants’ land was within flood control vegetation lines contained in the Council’s Flood Protection and Drainage Bylaw 2013 and therefore it met the definition of the “bed” of the river in the Canterbury Land and Water Regional Plan. The appellants were advised that their proposed development works could not occur within the area proposed.
[4] The appellants did not accept this. Later in 2016, they proceeded to clear vegetation within that area up to the point where there was an existing formed bank, which they considered to be the edge of the river bed. They also created a gravel bund along the line of that bank.
1 Canterbury Regional Council v Dewhirst [2018] NZDC 5412 and Canterbury Regional Council v Dewhirst [2018] NZDC 7650.
[5] The Council laid four charges against the appellants under s 13 of the RMA and one charge under s 14 of the RMA. The five charges were
(a)Excavating or otherwise disturbing the bed of the Selwyn River without express authority in breach of s 13(1)(b) of the RMA;
(b)Erecting a structure, namely a gravel bund, in the bed of the Selwyn River without express authority in breach of s 13(1)(a) of the RMA.
(c)Excavating the bed of the Selwyn River in breach of resource consent conditions (as to volume) and thus in breach of s 13(1)(b) of the RMA;
(d)Damaging, destroying or removing flood control vegetation in the bed of the Selwyn River in breach of a regional rule and thus in breach of s 13(2) and (2A) of the RMA; and
(e)Diverting water from the Selwyn River in breach of s 14(2)(a) of the RMA.
[6] The appellants each pleaded guilty to these charges. They accepted they had gone beyond the terms of any resource consent and so far as the s 13 charges were concerned, they had encroached beyond the line of the existing formed bank of the river. However, the appellants challenged a number of aspects of the Council’s summary of facts. In particular, they contested whether the entire bund and the area of gorse and broom cleared was within the bed of the river.
[7] As a result, a disputed facts hearing occurred before Judge Hassan in the District Court. Following this, Judge Hassan issued two judgments. It is largely his reasoning in the second judgment, however, that is appealed here. In the first decision, he determined other factual matters. In relation to the location of the river bed, the Judge made it clear that he preferred evidence before him of a Mr McCracken, a Chartered Professional Engineer river engineering expert employed by the Council, to that of Mr Macky, the expert river engineer for the appellants. However, he said this
was based on the correct legal interpretation of river “bed”, which was the subject of his second judgment.
[8] In his second judgment, the Judge began by setting out the three steps that his reasoning would follow. They were to:
(a)Correctly interpret the definition of river “bed”, a confined exercise of statutory interpretation.
(b)Determine whether Mr McCracken’s opinion was soundly based on the proper interpretation of that definition and, if so, whether his opinion on where the river’s true right bank was located is accepted.
(c)Determine whether the Council had discharged its evidential onus on the disputed facts as to whether the various activities the subject of the charges occurred riverward of Mr McCracken’s true right bank.
[9] The Judge concluded that he agreed with the Council’s interpretation of the river and thus accepted Mr McCracken’s evidence on where the true right bank was located. The Judge therefore found that the Council had proven beyond reasonable doubt that the disputed facts were made out.
[10] At the outset, it needs to be borne in mind here that the judgments under appeal follow the appellants’ guilty pleas on the five charges outlined at para [5] above and the disputed facts hearing for sentencing purposes noted at para [7] above. That sentencing has obviously not as yet taken place, although the events in question occurred over two years ago.
[11] So far as the disputed facts hearing was concerned, it is useful to note s 24(1) of the Sentencing Act 2002 which states:
24 Proof of facts
(1)In determining a sentence or other disposition of the case, a court—
(a)may accept as proved any fact that was disclosed by evidence at the trial and any facts agreed on by the prosecutor and the offender; and
(b)must accept as proved all facts, express or implied, that are essential to a plea of guilty or a finding of guilt.
…
[12]As to this provision, Adams on Criminal Law relevantly states:2
SA24.10 Appeals
…
Where a material fact for sentencing purposes is disputed by the defendant, but is taken into account without being proved beyond reasonable doubt by the prosecution, the finding cannot stand on appeal: R v Gatenby CA511/04, 28 April 2005…
[13] The present appellate review before me clearly does not involve any determination of relevant facts, and is an appeal on questions of law. I make this clear at the outset. It relates essentially to the question as to the proper interpretation of the word river “bed” in s 2 of the RMA. Once this is determined, if matters remain in dispute, it is incumbent upon the Council, as prosecutor here, to establish beyond reasonable doubt the extent that the appellants infringed the “bed” of the river as a material fact for sentencing purposes.
The appeal
[14] The appellants seek this Court’s leave for, and the answer to, the following four questions of law:
(a)Did the Court fail to identify and apply the correct test for determining the extent of the river bed in terms of the definition “bed” in s 2 of the RMA?
(b)Did the Court take into account an irrelevant matter when considering the appropriate flow for determining the extent of the river bed?
2 Simon France (ed) Adams on Criminal Law (online loose-leaf ed, Thomson Reuters) at [SA24.10].
(c)Did the Court err in its assessment that the land south of Mr Macky’s true right bank supports values which might be expected in a river and which require protection under s 13 of the RMA?
(d)Did the Court err in concluding that the evidence of Mr Macky could not be revisited when determining the proper location of the true right bank and the extent of the river bed?
[15] On this appeal, the Council accepted that question one was a question of law for which leave should be granted here, but disputed that there was any error made by the District Court such that the appeal on this point should succeed. As to questions two, three and four, the Council submitted these were not questions of law and that leave to appeal under s 296 of the CP Act relating to these questions should be refused at the outset.
[16]I will address each question and the issues of leave in turn.
Did the Court fail to identify and apply the correct test for determining the extent of the river bed in terms of the definition “bed” in s 2 of the RMA?
[17] As noted, the Council does not oppose leave in regard to this question. It is clearly a qualifying question of law and I grant leave accordingly. This first question is the key issue in this appeal and relates to the first step in the Judge’s reasoning only. While much expert evidence was provided to the District Court about where the bed of the Selwyn River lies, the real question before me is an issue of statutory interpretation. The answer lies in the proper application of the law, rather than in various scientific explanations. It is only once the legal definition is determined that the evidence can be properly analysed.
[18]Section 2 of the RMA relevantly provides:
bed means,—
(a)in relation to any river—
(i)for the purposes of esplanade reserves, esplanade strips, and subdivision, the space of land which the waters of the river cover at its annual fullest flow without overtopping its banks:
(ii)in all other cases, the space of land which the waters of the
river cover at its fullest flow without overtopping its banks; and
…
(emphasis added)
[19] Thus, the key factors in determining what is a river bed are the area covered by the river at its fullest flow and the location of the river’s banks. Both of the definitions proposed by the parties take these factors into account, but each prioritises one factor over the other.
[20] The Council’s approach, which was accepted by the District Court, was to start by determining the river’s “fullest flow” and then to find a suitable bank. A bank would not necessarily be disqualified because it may be overtopped in places at fullest flow, rather the land covered by water that overtops the banks would not be considered river bed.
[21] The Judge said he was influenced in making this decision by the purposes of the RMA. He considered this definition best allowed for the holistic management of the river environment. He was of the view that the appellants’ definition would potentially compromise the management of natural hazards, a priority of national significance.
[22] At paras [61] and [62] of his second judgment, Judge Hassan set out the Council’s interpretation of the word river “bed” which he accepted in full using these words:
Determination of the proper meaning of river ‘bed’
[61] Of the two available interpretations of ‘bed’ in relation to rivers, I find in favour of the Council’s interpretation. That is, I find that ‘bed’, i.e. the space of land which the waters of the river cover at its fullest flow without overtopping its banks’ means the space of land which the waters of the river cover with two conditions:
(a)firstly, at its fullest flow; and
(b)secondly, without overtopping its banks.
[62]As a consequence, I accept as sound the Council’s approach as summarised at [47] of the First Decision:
The Regional Council’s approach is to start by determining ‘fullest flow’ to then find a suitable bank. That determination is informed by several factors including the nature, characteristics and morphology of the river, as I later explain. Under its approach, however, a bank would not necessarily be disqualified by reason that it may be overtopped in places at fullest flow. Its relevant submission is that:
…the definition necessarily recognises that some of the area covered by water when the river is at its fullest flow will not be river bed, given that the river may have overtopped its banks in places at the time of fullest flow.
[23] The appellants’ approach, which Judge Hassan did not accept however, treated the clause “without overtopping its banks” as a qualifier of “fullest flow”. Thus, the appropriate banks must be selected first. Those banks then set the upper limit to what is considered the river’s fullest flow, by assessing their appropriateness seeing what level of flow they can contain.
Analysis
[24] The term “banks” is not defined in the RMA. It is also not a consistently applied river engineering term, but rather one of more colloquial usage. A bank is generally defined as “the land alongside or sloping down to a river or lake”,3 or “the rising ground bordering a lake, river, or sea or forming the edge of a cut or hollow”.4 Thus, the bank is the raised border to a water feature that constrains the water’s usual movement.
[25] While on many one channel rivers (such as the Avon and Heathcote Rivers in Canterbury) the banks are easily located, the nature of a braided river like the Selwyn River makes this process more contentious. The Council submitted that there are a number of topographic features which could be identified as banks in this case so the bed here, it contended, could not be determined by where banks are.
[26] It is clear that all of a river bed may not always contain water, and perhaps on occasions there may even be no water at any point between the banks. Indeed, the s 2 RMA definition of “river” refers to it as “a continually or intermittently flowing body of fresh water” (emphasis added). Fogarty J acknowledged this fact in
3 Oxford English Dictionary (7th ed, Oxford University Press, Oxford, 2012)
4 Merriam-Webster Dictionary (11th ed, Merriam-Webster, Springfield, MA, 2016).
Carruthers v Otago Regional Council, specifically noting the Selwyn River.5 He stated:
[37] Turning to s 13(1), one examines the merit of protecting river beds 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 river beds 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 river bed. It does not mean that the river bed does not have a function and a need for it to be preserved.
[27] However, it is also clear that not all water that flows from a river will be considered the river. As Fogarty J noted regarding the definition of bed in s 2:6
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.
[28] Thus, a river’s “fullest flow” for the purposes of s 2 here must be something less than the point where it floods.
[29] This was recognised in very early cases. In Kingdon v Hutt River Board, the then Supreme Court set out the “bank to bank” test for determining the extent of the bed of a river.7 It found that the bed of a river comprises those lands covered by water during the ordinary rainy season but contained within the banks of the river and extending from bank to bank.
[30] However, I accept that for present purposes, the RMA here defines river “bed” as simply the space of land which the waters of the river cover relating to its fullest
flow without overtopping its banks, and not relating to its annual fullest flow. That phrase “annual fullest flow” is used in the RMA definition in paragraph (i) in relation
5 Carruthers v Otago Regional Council [2013] NZHC 632.
6 At [41].
7 Kingdon v Hutt River Board (1905) 25 NZLR 145 (SC) at 157-158.
to subdivisions, esplanade reserves and the like. The legislature deliberately chose not to use that phrase in paragraph (ii) relating to “all other cases”, so account must be taken of that. However, the statute gives no further direction on what “fullest flow” means. The present definition of “bed” in s 2 of the RMA is therefore somewhat problematical.
[31] Turning to a plain and literal interpretation of the words in question used presently in s 2, the following definitions from the Oxford English Dictionary8 are useful:
(a)“fullest” effectively means “containing or holding as much or as many as possible; having no empty space” or otherwise. In this regard, the words “to the full” mean “to the greatest possible extent”.
(b)“flow” means in this context “the rise of a river”.
(c)“a bank or banks” in relation to a river, as I note at [24] above, mean “the land alongside or sloping down to a river or a lake.”
[32] With these common interpretations in mind, the current RMA definition of river “bed” might be expressed more expansively to mean:
The space of land which the waters of the river cover at the time when the rise of the river is to its greatest possible extent (i.e. holding as much as possible with no empty space) without overtopping the land alongside or sloping down to the river.
Using this definition, the words “fullest flow” would literally mean at its peak or, in other words, at the largest flood level of the river. A definition of river “bed” based upon this cannot be right as Fogarty J noted in his comments in Carruthers v Otago Regional Council that I outline at [27]. Otherwise, it would extend the “banks” of the river often a considerable distance into adjoining land following significant flood events.
8 Oxford English Dictionary, above n 3.
[33] To say a flood in a one in 10, 20 or 50 year event assists in this definition, appears to me to be quite inappropriate. If this “fullest flow” test is used to identify where the waters in such an event might terminate and thus, to some extent, determine the “banks” of a river, in my view, it is wrong. To allow this or some similar test to apply could well result in roads, buildings, farms and indeed townships being seen as falling within the “bed” of a river through this extrapolated definition.
[34] The only proper answer to this dilemma, in my view, is to accept that the actual banks of a river course, being the land alongside or sloping down to that river by way of visual inspection or otherwise, need to be established first. This done, then, in the case of a braided river, the “bed” is that area of land which the waters of the river cover up to that bank when a significant flow event arises. To say that because of the definition the river bank needs to be located in such a position that it would never or only very rarely be overtopped by flood waters is simply nonsensical. This would do away with the notion that the river in question had a margin or flood plain. These, however, are clearly recognised areas of land alongside a river which occasionally flood in extreme events. They certainly should not form part of the “bed” of a river in terms of a workable RMA definition.
[35] On all of this, the District Court accepted in its first judgment here the statement in Carruthers v Otago District Council that floodwaters are deemed to have “overtopped the banks” and are, therefore, more than the “fullest flow” for determining the extent of the river bed9. However, as I see it, the final approach taken by Judge Hassan in his second judgment did not appropriately apply that principle.
[36] I emphasise that it is important that a river “bed” is distinguished from the “margins” or “flood plains” that may surround a river. The latter are those areas of land that are only covered by water in periods of flooding when the true banks of a river are overtopped. While not defined in the RMA, the Canterbury Regional Policy Statement defines a margin as:10
… the land immediately adjacent to the bed of a river, wetland, lake or estuary which is likely to be affected by a high water table, flooding, fluvial erosion,
9 Carruthers v Otago Regional Council, above n 5.
10 Operative Canterbury Regional Policy Statement at [10.1.2].
or sediment deposition, and often contains distinctive vegetation. The size of the margin will vary according to local site factors but may extend to the limits demarcated by natural river terraces and constructed stop banks.
[37] In my view, it is simply not appropriate to make factual findings about what constitutes the “bed” of a river here based on the evidence provided by experts. To determine from the definition in s 2 what is a river “bed” is simply an exercise in statutory interpretation. Nevertheless, I do need to say that, as a matter of law, any evidence that fails to distinguish the “margins” or “flood plain” that surround a river from the river “bed” cannot be seen as in accordance with the legal position at issue. I bear in mind too that the present case is one involving a prosecution and the punitive provisions of the RMA.
[38] This analysis shows that the present definition of “bed” in s 2 of the RMA with its specific use of the words “at its fullest flow” is somewhat problematical.
[39] The authors of Burrows and Carter Statute Law in New Zealand11 address issues of inconsistency between legislative provisions and the need on occasions to “fill in gaps” or “read in” additional words into a statutory provision. This, of course, is despite the general rule that reading words into a statute that are not there is generally impermissible. In this regard, the learned authors state, however:12
…On a sensible reading of the provision, and the Act as a whole, it may be clear that the express words of the provision themselves contain certain implications. In “reading in” words to give effect to these implications one is really not adding to the section; one is just drawing out what is already implied in it. This is, par excellence, construction in light of context and purpose…
[40] With this in mind, I am satisfied here that to make sense of this s 2 definition of river “bed” in light of the context and purpose of the provision, the words “usual or non-flood” would need to be implied and added before the words “fullest flow”. If this is to occur, the provision in question would read effectively:
bed means –
(a)In relation to any river –
…
11 Burrows and Carter Statute Law in New Zealand, 5th ed, Lexis Nexis, Wellington 2015.
12 Above n 11, at p 320.
(ii) …the space of land which the waters of the river cover at its usual or non-flood fullest flow without overtopping its banks…
[41] As I see it, this means that implied into the words used in the existing provision “fullest flow” is the notion that this means the river’s fullest usual flow over a reasonable period of years of river activity cycles, and not including flood waters that would flow onto the margins and flood plain adjacent to the river.
[42] Therefore, in scrutinising where those river banks with usual flow would lie, a reasonable visual observation and a consideration of the river’s natural character and the riverine qualities of the river bed would be required as part of the exercise. It is accepted that the position identifying banks of braided rivers may be more difficult. Nonetheless, returning to the general definition of a river “bank”, (the land alongside or sloping down to a river), will assist. In a braided river, even on the basis of the definition provided above, the edges of the individual braids would not constitute “banks” of the river but rather the delineated banks where defined river stones or the like slope up to land adjacent to the river margin (and possibly a river terrace or flood plain) would do so.
[43] Another danger of the definition adopted by the District Court here is that much land currently used for various purposes, such as for general farming, roads or even buildings, could be defined as river “bed”. There are obvious difficulties that face a landowner or controlling body as to whether land adjacent to a river (especially a braided river) that is usually dry is still classified as river “bed” or otherwise, and therefore whether that land could be used for other purposes or not. Given the limited activities that may be permitted on a river bed, an expansive definition of what is truly “bed”, coupled with this uncertainty of just how far that bed might extend, cannot have been Parliament’s intention.
[44] I find that the river bed is the area between the reasonably observable banks of a river. While not as clear as in other rivers, the sloping banks of a braided river may still be found. The banks of the river are the border between land that may be covered by a significant but usual flow of the river, (as I note above) over a reasonable period of years of river activity cycles and land that is occasionally eroded or flooded by the
river. The river bed is separate from the margin or flood plain which will often surround a river and the latter may, in some cases, be quite extensive.
[45] I acknowledge too, that it is important to ensure that the term river “bed” is interpreted in light of the purposes of the RMA. These are set out at s 5 which provides:
5Purpose
(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 well-being 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.
[46]Section 6 also relevantly provides:
6Matters of national importance
In achieving the purpose of this Act, all persons exercising functions and powers under it, in relation to managing the use, development, and protection of natural and physical resources, shall recognise and provide for the following matters of national importance:
(a) the preservation of the natural character of the coastal environment (including the coastal marine area), wetlands, and lakes and rivers and their margins, and the protection of them from inappropriate subdivision, use, and development:
…
(emphasis added)
[47] With all this in mind, the Council submitted here that a limited definition of river bed, such as that proposed by the appellants, would result in the Council being disadvantaged jurisdictionally from protecting river environments.
[48] However, I consider that concern unfounded. There are other routes through which local authorities can govern general river environments under the RMA, such as making regional rules under s 30(1)(c) or putting in place restrictions under s 14. There are also other regulatory controls, such as the Flood Protection and Drainage Bylaw 2013 the Council has put in place which covers the land in the present case. By these means, the Council can control the wider river environment, including the flood plain, to avoid or mitigate the effects of natural hazards. It is clear from decisions such as High County Rosehip Orchards Ltd v McKenzie District Council13 and Save Wanaka Lakefront Reserve Inc v Queenstown Lakes District Council14 that in applying s 6(a) of the RMA regional councils have the power to preserve the natural character of rivers and their margins and to manage natural hazards. Thus, the definition of river bed does not need to be “stretched” in order to achieve what are said to be the purposes of the RMA.
Conclusion
[49] Drawing all this together, I find that the District Court in its two judgments under appeal erred by applying the wrong legal test to this issue of river “bed”. I bear in mind, too, that this definition was important as the basis upon which disputed material facts were determined for sentencing purposes relating to the charges to which the appellants pleaded guilty. The fact that an individual can be prosecuted with punitive consequences for activity she or he carries out on a river “bed” emphasises the importance of taking a straight forward approach to the interpretation of this term that is largely in keeping with the general understanding of what is the true “bed” of a river, as delineated by its observable “banks”. It was always incumbent upon the Council, as the prosecuting authority, to establish the extent of the bed of the Selwyn River here. In my view, this has not properly occurred in that the District Court erred in the legal test it said was to be applied in this case.
13 High County Rosehip Orchards Ltd v McKenzie District Council [2011] NZEnvC 387.
14 Save Wanaka Lakefront Reserve Inc v Queenstown Lakes District Council [2017] NZEnvC 88.
[50] The District Court did not apply the correct test here as it did not give sufficient weight to the true and observable location of the river’s present banks and appeared to overlook the difference between a river “bed” and its margin or the adjoining flood plain. The District Court declined to make a factual finding as to where the relevant banks of the riverbed were located. Instead, the Court accepted Mr McCracken’s methodology, which was to focus on where a certain flow of water would extend, and to determine that as the “bank” of the river. The appellant’s interpretation, however, which I accept, was to the effect that you cannot apply the definition without first identifying where the relevant banks are. The purpose in the RMA of the definition of “bed” is to delineate between land that is, on the one hand, truly a river margin or flood plain and land, on the other, that is river bed. That purpose is achieved when one applies the final qualifying phrase the legislature specifically selected to bring a limit to the words in s 2 (modified by implication, for the reasons noted above) “at its fullest (usual and non-flood) flow” which does not overtop those banks. In determining the “bed” of a river, the long accepted “bank to bank” test outlined in cases such as Kingdon v Hutt River Board15 is the correct test and is to be applied here.
[51] The answer to the first question, therefore, is “Yes”. The District Court failed to identify and apply the correct test for determining the extent of the river bed in this case. This appeal therefore succeeds.
[52] I direct that this case is remitted to the District Court so it can make a factual assessment of the extent of the river bed here, based on the correct legal test I have outlined.
Did the Court take into account an irrelevant matter when considering the appropriate flow for determining the extent of the river bed?
[53] The appellants submitted that the District Court took into account an irrelevant matter when considering the appropriate flow for determining the extent of the river “bed”, namely the advice of Council officers and particularly Mr McCracken that a 50-year return flow period was an appropriate starting point for indicating what the boundary of the bed should be.
15 Kingdon v Hutt River Board, above n 7.
[54] As the question concerns the relevant considerations the Judge felt he could take into account in determining the proper legal test for the river “bed” here, I accept that in normal circumstances this would be a qualifying question of law. Therefore, I grant leave.
[55] In his decision, Judge Hassan carefully analysed Mr McCracken’s evidence on the flow rates, including comparing the 50 year and 20 year return periods. In the end, the Judge accepted that Mr McCracken’s approach in his evidence was sound and reliable, a factual finding. He then took this evidence into account, along with other factors, in applying the legal definition, as he found it, to the specific circumstances of this case.
[56] As I have outlined above, it is my view that Judge Hassan was wrong to do this and his conclusion on the correct legal test was awry. Therefore, I conclude that the Judge did take into account an irrelevant consideration in making his decision. The evidence from Mr McCracken was not relevant evidence that could be properly taken into account.
[57] The answer to the second question, therefore, given the circumstances of my findings related to the first question above, is “Yes”.
Did the Court err in its assessment that the land south of Mr Macky’s true right bank supports values which might be expected in a river and which require protection under s 13 RMA?
[58] The third proposed question deals with the appellants’ contention that the District Court erred in making an assessment about the protection of riverine values in the area because it was based on insufficient evidence. As this question deals with an evidential finding of the Judge, it will only qualify as a question of law if it was an unreasonable conclusion, that is, one unsupported by any evidence.
[59] The Judge based his decision on the evidence before him and took into account various general principles in the RMA and the area of resource management generally. Therefore, I do not consider this question a qualifying question of law. I decline leave to appeal related to this question.
Did the Court err in concluding that the evidence of Mr Macky could not be revisited when determining the proper location of the true right bank and the extent of the river bed?
[60] The final proposed question deals with the appellants’ contention that the District Court took the view that it could ignore Mr Macky’s expert evidence about his additional modelling work because it was peer viewed. I consider that this mischaracterises the Judge’s approach. The Judge is entitled to make an assessment of the evidence before him. He found that, after due consideration, Mr McCracken’s evidence was more persuasive.
[61] I do not consider this question a qualifying question of law. I also therefore decline leave to appeal related to this question.
Orders
[62] Leave is granted to the first two questions of law. I answer both “Yes” and therefore this appeal succeeds on those two grounds.
[63] I direct that this case is remitted to the District Court so it can make a factual assessment of the extent of the river bed here, based on the correct legal test I have outlined.
...................................................
Gendall J
Solicitors:
Royden Somerville QC, Dunedin Duncan Cotterill, Christchurch Wynn Williams, Christchurch
2