Jefferies v Wellington Regional Council

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2012-485-2012 [2013] NZHC 1059

BETWEEN  ALAN DENNIS JEFFERIES Appellant

ANDWELLINGTON REGIONAL COUNCIL Respondent

Hearing:         3 October 2012

Counsel:         F Geiringer (on instructions of P Morahan) for Appellant

T Gilbert for Respondent

Judgment:      10 May 2013

In accordance with r 11.5, I direct the Registrar to endorse this judgment with the delivery time of 4:30pm on the 10th May 2013.

JUDGMENT OF WILLIAMS J

Solicitors:

Mr Geiringer, Barrister, Wellington, [e-mail]

Luke Cunningham & Clere, Wellington, [e-mail]

JEFFERIES V WELLINGTON REGIONAL COUNCIL HC WN CIV-2012-485-2012 [10 May 2013]

Introduction

[1]      This is an appeal against the decision of the Environment Court to uphold two Abatement Notices issued against Mr Jefferies.  Notice 463 relates to a bund the appellant helped to build at the point where the Mangaroa River bed splits between the now largely dry eastern arm and the now running western arm.  The split comes back together again 250 metres downstream forming a kind of small ‘island’.  The bund was largely but not wholly successful in preventing the river from rerouting back through the eastern arm.  This arm adjoins the rear of the appellant’s property. He and a neighbour, Mr Donald McNeil, placed the bund in order to stop the bank on his  land  eroding  away.     According  to  the  abatement  notice,  the  allegedly unauthorised activities included:

(a)       deposition of material;

(b)      placement of structures; and

(c)       associated diversion of water.

[2]      The notice was issued on 16 April 2010.

[3]      Notice 477 related to the tipping of clean fill down a cliff at the rear of the

appellants’ land and onto a portion of the now dry bed of the eastern arm of the river.

[4]      The   notice   formally   described   the   breach   of   s 13   of   the   Resource Management Act 1991 (RMA) as “unauthorised discharges of contaminants onto the bed of the Mangaroa River”.

[5]      That notice was issued on 28 May 2010.

The facts

[6]      The appellant owns a property at 1102 Maymorn Road in Upper Hutt.  It is used as a lumber yard.  It backs on to the fluvial flats cut by the Mangaroa River.

His downstream neighbour is D A McNeill Limited at 1066B Maymorn Road.  That site is used by Mr McNeill as a construction and demolition cleanfill.

[7]      These two properties are located on the eastern arm of the river course.  For a decade between 1999 and January 2010 (the month during which Mr Jefferies and Mr McNeill built the bund) the Mangaroa River flowed down that eastern arm.   I understand that the western arm was for that period mostly dry.  Prior to 1999, the river seemed largely to flow down the western arm.  According to Council officers a tree fall in 1999 had caused the river to deviate.  Certainly aerial photographs from the 1940s and 1950s show clearly that the western arm was the river’s preferred course in those days.

[8]      With the course of the river flowing down the eastern arm during the decade to…