Jefferies v Wellington Regional Council
[2014] NZCA 15
•12 February 2014 at 3:30pm
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA681/2013 [2014] NZCA 15 |
| BETWEEN | ALAN DENNIS JEFFERIES |
| AND | WELLINGTON REGIONAL COUNCIL |
| Hearing: | 10 February 2014 |
Court: | O’Regan P, Ellen France and Randerson JJ |
Counsel: | Applicant in Person |
Judgment: | 12 February 2014 at 3:30pm |
JUDGMENT OF THE COURT
A The application for special leave to appeal is dismissed.
BThe applicant must pay the respondent costs as for a standard application for leave to appeal with usual disbursements.
____________________________________________________________________
REASONS OF THE COURT
(Given by Randerson J)
Introduction
Mr Jefferies applies under s 308 of the Resource Management Act 1991 (the RMA) for special leave to appeal against a judgment of Williams J delivered on 10 May 2013.[1] Williams J dismissed Mr Jefferies’ appeal against an earlier decision of the Environment Court which upheld two abatement notices the respondent issued against Mr Jefferies.[2]
[1]Jefferies v Wellington Regional Council [2013] NZHC 1059.
[2]Jefferies v The Wellington Regional Council [2012] NZEnvC 50.
Williams J later declined an application for leave to appeal to this Court.[3] This led to Mr Jefferies’ current application to this Court.
Background
[3]Jefferies v Wellington Regional Council [2013] NZHC 2341.
Mr Jefferies owns a property adjoining the Mangaroa River within the jurisdiction of the Wellington Regional Council. In April and May 2010, the Council issued two abatement notices against Mr Jefferies alleging breaches of s 13 of the RMA. This section restricts certain activities in relation to the bed of any lake or river. It is not in dispute that Mr Jefferies and a neighbour placed a 1.5m high bund on land which the Environment Court held was part of the bed of the Mangaroa River. Mr Jefferies’ purpose in erecting the bund was to stop the bank on his land eroding away.
The first abatement notice alleged unauthorised activities including the deposition of material, the placement of the bund and associated diversion of water. The bund was a substantial structure which the Environment Court found had the effect of diverting the Mangaroa River along a western arm while rendering largely dry the eastern arm adjoining Mr Jefferies’ property.
The second abatement notice related to the tipping of a substantial quantity of clean fill down a cliff at the rear of Mr Jefferies’ land and onto a portion of the land the Environment Court found was riverbed.
Mr Jefferies appealed to the Environment Court against the abatement notices.[4] Critically for present purposes, the evidence produced in the Environment Court (including evidence from Mr Jefferies’ own witnesses) was to the effect that, from time to time, despite the construction of the bund, river water overtopped the bund and ran down the eastern arm as it had before the bund was constructed.
Principles
[4]The neighbour has not pursued any appeal against the abatement notices.
Section 308 of the Act imports the leave procedure in s 144 of the Summary Proceedings Act 1957.[5] Any appeal to this Court from a determination of the High Court is available only on a question of law. Any such question must be one which, by reason of its general or public importance or for any other reason, ought to be submitted to this Court. Where the High Court declines leave to appeal to this Court (as in the present case), special leave is required.[6] The principles are well established and need not be repeated.[7]
The applicant’s grounds
[5]Section 308 of the RMA now imports in subpart 8 pt 6 of the Criminal Procedure Act 2011. However, as these proceedings commenced before 1 July 2013, s 144 of the Summary Proceedings Act applies: see Foodstuffs South Island Ltd v Queenstown Lakes District Council [2013] NZCA 458.
[6]Summary Proceedings Act 1957, s 144(3).
[7]R v Slater [1997] 1 NZLR 211 (CA) at 215 and Waller v Hider [1998] 1 NZLR 412 (CA) at 413.
Mr Jefferies submitted that both the Courts below had wrongly found that the construction of the bund and the depositing of the other materials referred to in the abatement notices had occurred in relation to the bed of a river in terms of s 13 of the RMA. In a submission advanced for the first time in this Court, Mr Jefferies submitted that it was a matter for the New Zealand Geographic Board under the New Zealand Geographic Board (Ngā Pou Taunaha o Aotearoa) Act 2008 to name natural features such as a river, creek or stream. He referred to a topographical map prepared by Land Information New Zealand which, he contended, defined the land at issue as a drain.
Mr Jefferies did not advance any other question of law he would seek to argue on appeal if leave were granted.
Decision
Section 2 of the RMA defines “river” and “bed” in the following terms:
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).
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;
The immediate difficulty facing Mr Jefferies is the factual finding made in the Environment Court to the effect that since the bund was built, at least part of the river flow has, from time to time, gone down the eastern channel and, in that sense, the channel has remained part of the river bed. [8]
[8]At [28] and [29].
These factual findings were upheld by Williams J who said the river had “well demonstrated its ability to flow across the extent of the dry bed of the eastern arm if it wants to. … Thus the site of the bund is unquestionably river bed.” [9] He added that: “[the] point where the rubble hits the dry bed is too.”[10]
[9]At [35].
[10]At [35].
We also note the alternative finding by Williams J that when the river is running high, but not overtopping the bund, water would strike the bund before cutting west in circumstances where, but for the bund, it would have continued east.[11] The Judge rejected a submission made by counsel for Mr Jefferies that the eastern channel was taken “out of play” because it had effectively dried the old channel up. The Judge accepted a submission made on behalf of the Council that this was an absurd way to interpret the statute and concluded that s 2 could only make sense on facts such as those before the Court if “bed” means the bed as it was before the illegal activity took place.
[11]At [36].
And, as Williams J observed, when declining leave to appeal to this Court: [12]
… the factual findings in the Environment Court make it clear that with or without the bund, the river in question regularly flows down the arm of the river from which the bund attempted to divert it. It is simply not arguable on the facts that the eastern arm is not riverbed.
[12]At [8].
Given the factual findings made in the lower courts (which appear to be unassailable on the evidence) no question of law arises in respect of the essential findings that the unlawful activities occurred in relation to the bed of a river.
There are also formidable difficulties facing Mr Jefferies on the issue of the role of the Geographic Board. First, the point was not formally raised in the courts below although Mr Jefferies said he “touched upon” the issue in the High Court. Second, the topographical map referred to by Mr Jefferies was not formally produced in evidence. Third, we are satisfied that the view of the New Zealand Geographic Board as to a river or other watercourse could not control a finding by the Environment Court about whether activities had occurred in a river or riverbed for the purposes of the RMA.
Mr Jefferies referred to s 23 of the RMA about the need to comply with other applicable legislation but we are satisfied that the official name of the watercourse in question (even if proved) could not materially affect the task of the Environment Court under the RMA. The Geographic Board is principally concerned with the naming of natural features while the Council (and ultimately the Environment Court) must focus upon the specific definitions of the relevant terms in the RMA. The definition of “river” does not depend on whether the water body is named as such since it includes (but is not limited to) a stream and a modified watercourse. We note too that the general powers of the Geographic Board are subject to other enactments.[13]
[13]New Zealand Geographic Board (Ngā Pou Taunaha o Aotearoa) Act 2008, s 9(2).
Contrary to Mr Jefferies’ submission, it was a matter for the Environment Court to reach its conclusions on the riverbed issue in the light of the statutory definitions in the RMA and on the evidence placed before it. This issue is essentially factual in nature and does not raise any seriously arguable question of law.
Result
For the reasons given, we dismiss the application for special leave to appeal. The applicant must pay the respondent costs as for a standard application for leave to appeal with usual disbursements.
Solicitors:
Luke Cunningham & Clere, Wellington for Respondent