Jefferies v Wellington Regional Council - [2014] NZCA 15

IN THE COURT OF APPEAL OF NEW ZEALAND

CA681/2013
[2014] NZCA 15

BETWEEN	ALAN DENNIS JEFFERIES Applicant
AND	WELLINGTON REGIONAL COUNCIL Respondent

Hearing:	10 February 2014
Court:	O’Regan P, Ellen France and Randerson JJ
Counsel:	Applicant in Person T J Gilbert for Respondent
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] NZCA 15
Decision Date: 12 February 2014 at 3:30pm

CaseChat Overview and Summary

The Court of Appeal of New Zealand considered an application for special leave to appeal from Mr. Alan Dennis Jefferies against the Wellington Regional Council. Mr. Jefferies sought to appeal a decision made by Williams J, which upheld the issuance of two abatement notices by the Wellington Regional Council. These notices were issued for alleged breaches of section 13 of the Resource Management Act 1991 (RMA). The notices pertained to activities on Mr. Jefferies' property that the Council claimed were carried out in the bed of the Mangaroa River. Mr. Jefferies had previously appealed to the Environment Court, but his appeal was dismissed. Williams J then declined his application for leave to appeal to the Court of Appeal. This led to Mr. Jefferies' application for special leave to appeal to this Court.

The primary legal issue the Court of Appeal had to decide was whether Mr. Jefferies' case presented a seriously arguable question of law that warranted special leave to appeal. Mr. Jefferies argued that the lower courts incorrectly found that his activities occurred in relation to the bed of a river under section 13 of the RMA. He contended that the New Zealand Geographic Board should have named the natural feature, such as the river, under the New Zealand Geographic Board (Ngā Pou Taunaha o Aotearoa) Act 2008. Additionally, he claimed that a topographical map defined the area as a drain rather than riverbed.

The Court of Appeal dismissed the application for special leave to appeal. The Court found that the factual findings made in the lower courts, which determined that the activities occurred in relation to the bed of a river, were unassailable. The Court noted that even if the eastern arm of the river dried up occasionally, it remained part of the riverbed. Furthermore, the Court held that the role of the New Zealand Geographic Board did not control the Environment Court's findings about whether activities had occurred in a river or riverbed for the purposes of the RMA. The Court concluded that the issue was essentially factual and did not raise any seriously arguable question of law.

As a result, the application for special leave to appeal was dismissed. Mr. Jefferies was ordered to pay the respondent costs as for a standard application for leave to appeal with usual disbursements.

Orders