Page v Greater Wellington Regional Council
[2022] NZHC 762
•12 April 2022
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2021-485-000090
[2022] NZHC 762
BETWEEN ADRIAN NEIL PAGE
Plaintiff
AND
JULIE MAREE CROSBIE
Second Appellant
AND
GREATER WELLINGTON REGIONAL COUNCIL
Respondent
Hearing: 31 March 2022 Appearances:
Appellants in person
AWM Britton for the Respondent
Judgment:
12 April 2022
JUDGMENT OF GENDALL J
Introduction
[1]The Second Appellant Julie Maree Crosbie (Ms Crosbie) owns an
11.13 hectare block of land in the Nikau Valley of Paraparaumu, Kāpiti District (the Property). Ms Crosbie’s partner, with whom she lives, is the first Appellant, Adrian Neil Page (Mr Page). According to the Respondent, the Greater Wellington Regional Council (the Council), from May 2019 until March 2021, Mr. Page, with Ms Crosbie’s permission, undertook what is described as an extensive programme of development on the Property, including in areas which were said to be natural wetlands. The Council claims this development completely disregarded important aspects on the Property, including those natural wetlands, the presence of a wastewater
ADRIAN NEIL PAGE & JULIE MAREE CROSBIE v GREATER WELLINGTON COUNCIL [2022] NZHC 762 [12 April 2022]
disposal field and the receiving environment. All of this, it is said, contravened the requirements of the Resource Management Act 1991 (the RMA).
[2] According to the Council, initially the Appellants defied representations to remedy the RMA breaches made to them by its officers. Abatement notices and an interim order of the Environment Court then issued requiring the Appellants to cease the unlawful works on the Property. Following this, the Council filed in the District Court some 35 charges against each of the Appellants under the RMA. It seems those charges broadly allege Mr Page was directly responsible for the offending in question and Ms Crosbie had permitted it to occur.
[3] After not guilty pleas were entered, a Judge alone trial on these charges took place before Judge Dwyer in the Wellington District Court on 24-28 May 2021.
[4] In a decision released on 17 September 2021(the Verdicts Judgment) the Court found all charges to be proven beyond reasonable doubt.1
[5] Subsequently on 26 November 2021 Judge Dwyer (the Sentence Judgment) sentenced Mr Page to three months imprisonment and Ms Crosbie was fined
$118,750.2
[6] The Appellants have now appealed to this court their conviction in the District Court’s Verdicts Judgment. There was also some suggestion made prior to this hearing that the Appellants also wished to appeal their sentences outlined in Judge Dwyer’s Sentence Judgment. Before me, however, they confirmed they were not proceeding with any sentence appeal. The only matter to consider was their conviction appeal.
[7] It is fair to say that the conviction appeal is wide ranging. In it, the Appellants challenge legal and factual conclusions reached in the District Court by Judge Dwyer. A number of submissions that were made by them at trial are repeated in this appeal.
1 Greater Wellington Regional Council v Page and Crosbie [2021] NZDC 16019 (Verdicts Judgment).
2 Greater Wellington Regional Council v Page and Crosbie [2021] NZDC 23312 (Sentence Judgment). An enforcement order for the remediation of the Property was also made.
And, before me, they have also sought leave to admit a number of matters as further evidence on appeal. I turn first to consider this leave application.
Application to adduce further evidence
[8] At the outset the applicants sought leave to admit as further evidence on this appeal:
(a)Several photographs of the Property annexed to the Appellants’ notice of appeal.
(b)A report dated 8 February 2022 prepared by Mr. Page together with attached photographs said to relate to the issue concerning whether wetlands exist on the Property.
(c)Documents and cell phone tower records which the Appellants suggest go to the issue of or are said to suggest proof that, the interim enforcement order made, may not have been properly served on Mr Page.
[9] To be admissible on this appeal, such further evidence must be credible and fresh in the sense it could not have been obtained with reasonable due diligence for trial, and cogent in that it bears upon whether a miscarriage occurred at trial.3
[10] Although initially this application for leave was opposed by the Council, after some discussion with its counsel, Mr Britton, it was accepted broadly that the best way forward here was for this evidence to be adduced. Mr. Britton confirmed that in any event, as he saw it, this further evidence made little difference to the likely outcome of this appeal.
[11] I am mindful here that both Mr. Page and Ms. Crosbie are self-represented on this appeal. It seems they also represented themselves before Judge Dwyer in the District Court hearing. It needs to be acknowledged too that there is a reasonable
3 Lundy v R [2013] UKDC 28 at [120].
argument here this further evidence may not be fresh. Certainly, it does seem that it could, with reasonable diligence, have been obtained before the date of the District Court trial. There can be no doubt on this appeal that the Appellants are not entitled simply to rerun the case they attempted before the District Court.
[12] That said, I am mindful of the fact that the strict requirements for granting leave to admit this further evidence may not have been met here. Further, there must be some doubt whether the formal requirements of r.8.8 of the Criminal Procedure Rules 2012 have been complied with. Nevertheless, effectively with the endorsement of Mr. Britton for the Council, I grant leave for that new evidence to be adduced. On that aspect, it should be noted too that the evidence technically is presently unsworn. Certainly, it does not take the form at this point of a sworn affidavit. Notwithstanding this, before me Mr Page in particular, endeavoured to confirm all matters outlined in this further evidence. I will proceed here on the basis, that it is in the nature of an unsworn evidence before this Court.
The Property
[13] The Property was purchased by Ms Crosbie in May 2019 with the intention of it being restored back into farmland and developed as a beef farming unit with her partner, Mr Page. Subsequently, livestock was brought onto the Property and extensive development work was undertaken. It seems it was common ground between the parties that Mr Page undertook various works on the Property to advance the farming activity. These works included the construction of access tracks and stream crossings, wetland reclamation and the installation of water takes. The Council had alleged, and the District Court accepted, that the Property contained six wetlands as marked on a map of the Property prepared for the Council.
[14] The title to the Property is subject to a registered Easement Instrument 7943259.7. This provides for a right in gross to drain sewage, other waste material and fluids over parts of the Property (the disposal field) for the benefit of an adjacent rural- residential subdivision completed by Nikau Lakes Biosystem Limited. A resource consent permitted Nikau Lakes Biosystem Limited to discharge up to 60,000 litres of treated human effluent and domestic wastewater onto the disposal field subject to
certain conditions. Those conditions included a requirement that livestock were not permitted to graze in the disposal field.
[15] It appears also that part of the Property is traversed by a natural gas pipeline which is protected by the rights contained in Pipeline Certificate 90461 and an easement in gross, in favour of Natural Gas Corporation of New Zealand Ltd. That easement has been in place since 1987 and gas pipeline structures have been established on the Property for many years.
[16] Thirty-four of the offences faced by the Appellants were alleged to have taken place on the Property over a period commencing on 30 May 2019 and ending on 5 August 2020. The 35th charge related to an alleged contravention of an interim enforcement order obtained by the Council from the Environment Court on 22 December 2020 (the Interim Enforcement Order). The breach allegedly took place between 23 December 2020 and 2 March 2021.
[17] From the evidence before that Court, Judge Dwyer in the District Court accepted that, the offences arose out of observations made by the Council officers in the course of a number of inspections of the Property to assess compliance with RMA and/or possible contraventions of rules in the Council’s proposed Natural Resources Plan (the PNRP). Those inspections took place between October 2019 and March 2021
The Council case before the District Court
[18] As I have noted, the Council brought 35 charges against each of the Appellants. Generally, these were grouped by Judge Dwyer into three categories:
(a)25 “operational charges” against the RMA, which related to allowing cattle access to wetlands, disturbing wetlands, undertaking earthworks in water bodies, depositing substances into water or where they could enter it, taking water, and depositing soil onto a riverbed.
(b)Nine “abatement notice charges” which reflected the fact several operational offences were also breaches of abatement notices which had been served on the Appellants on 24 January 2020.
(c)One “enforcement order charge” which related to the failure of the Appellants to exclude livestock from the disposal field as required by the Interim Enforcement Order of the Environment Court.
[19] Before the District Court the Council led evidence from four witnesses. The first witness was James Luty (Mr Luty) who it seems, was the Council’s primary witness of fact as to activities undertaken by the Appellants. Mr Luty is a Senior Environmental Protection Officer at the Council. In his evidence, he reviewed those rules of the PNRP for the Wellington Region, that the Council said were relevant to the prosecution of the Appellants here. The bulk of Mr Luty’s evidence, it appears, concentrated on nine inspections of the Property he conducted under s 332 of the RMA (carried out on 2 October and 19 December 2019, 10 February, 3 March, 7 April, 24 June, 5 August, 11 December 2020 and 1 March 2021) and one search warrant executed under s 334 of the RMA on 1 May 2020. In his evidence, Mr Luty produced numerous file notes, photographs and videos. In addition, he produced four Abatement Notices he had served on the Appellants on 24 January 2020.
[20] The Council’s second witness was Anthony Lowe (Mr Lowe) a process server. He gave evidence that Mr Page and Ms Crosbie were each served on 23 December 2020 with the Environment Court’s Interim Enforcement Order.
[21] The Council’s third witness was Owen Spearpoint (Mr Spearpoint), an acknowledged expert in terrestrial ecology and wetland delineation. He has been employed by the Council for 31 years. Mr Spearpoint produced a natural wetland investigation report he prepared dated 8 October 2020. He explained in the report his delineation of the wetlands on the Property, the impact of works undertaken on the Property by the Appellants, and possible steps to remediation. Mr Spearpoint had visited the property twice, the first occasion being on 10 February 2020 and the second on1 May 2020.
[22] The Council’s fourth witness was Claire Conwell (Dr Conwell), an expert in ecotoxicology and water quality. She is an Associate Environmental Consultant (water resources) at Jacobs New Zealand Limited. It seems to be accepted she is a highly experienced expert in matters relating to ecotoxicology and water quality. From her evidence, it is clear she examined the results of testing conducted on water samples taken by Mr Luty of water run off from the Property, near the disposal field on to an adjacent area. She concluded the samples likely contained domestic wastewater and were highly likely to have come from the disposal field, posing an immediate risk to human and animal health and also wider risks to the receiving community.
The Appellants’ case before the District Court
[23] As I have noted, the Appellants were self-represented before the District Court, as they were on this appeal. It appears they were repeatedly advised before, during and after the District Court trial, by both Council for the Respondent and the Court itself , to obtain legal representation.4 Briefly, as I understand it, Ms Crosbie did instruct a lawyer from October 2020 to April 2021, but by the time of trial in the District Court, both Appellants were unrepresented. It is true, however, that Mr Page is a relatively experienced lay litigant, having appeared a number of times in the District Court, Environment Court, High Court and Court of Appeal.
[24] In the main, it seems the defence at trial was led by Mr Page. He cross- examined Mr Luty and Mr Spearpoint at length. He also gave wide-ranging evidence himself, coming from a prepared brief of evidence. Largely, Mr Page denied that the wetlands present on the Property met the definition of “natural wetland” in the PRNP, and he speculated on a number of possible theories as to the historical use of certain areas of the Property. Mr Page also challenged first, the admissibility of evidence obtained during the execution of the search warrant, secondly, service issues over the abatement notices and the Interim Enforcement Order, and thirdly, the applicability of
4 By way of example Judge Dwyer issued minutes to this effect on 20 April 2021 at [2], on 28 April 2021 at [3], on 10 June 2021 at [3], and further reference was made to this in the notes of evidence before the District Court at [2]and in the Verdicts Judgment at [150].
the PNRP here. With two small exceptions,5 Mr Page accepted that he was responsible for the works in question that had been undertaken on the Property.
[25] So far as Ms Crosbie was concerned, in the District Court, she largely deferred to Mr Page in conducting her defence. She did cross examine Mr Lowe as to service of the Interim Enforcement Order and she gave evidence on this issue in her defence. She accepted she had allowed Mr Page to work on the Property, even after numerous meetings with Council officers and the fact she had received the abatement notices and the Interim Enforcement Order. 6
[26] At this point I interpolate one further matter. On this appeal, the Appellants appear to raise, by implication that, preparation of their defence before the District Court was affected by the Council’s alleged late disclosure to them, of certain documents. These included, the search warrant and abatement notices.
[27] From all the evidence, in my view there is little in this claim. It certainly seems to be the case here, that the Council and the Prosecutor were at pains first, to accommodate the decision made by the Appellants to represent themselves in the District Court, and secondly, to promptly disclose to them all required materials, usually in hard copy.
[28] There is nothing before me to substantiate this late disclosure contention, nor as I understand it was it raised in any persuasive way before the District Court. I reject it.
The Law on this conviction appeal
[29] Appeals against conviction following a Judge alone trial, such as the present, are governed by section 232 of the Criminal Procedure Act 2011 (CPA):
232 First appeal court to determine appeal
(1)A first appeal court must determine a first appeal under this subpart in accordance with this section.
5 Mr Page denied he was responsible for digging one drain in an area known as Gully Wetland A, and he also claimed the water take installed below the Upper Wetland was never completed.
6 Notes of Evidence at [394] and [405] lines 10-26.
(2)The first appeal court must allow a first appeal under this subpart if satisfied that,-
…..
(b) in the case of a Judge-alone trial, the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred; or
(c) in any case, a miscarriage of justice has occurred for any reason.
(3)The first appeal court must dismiss a first appeal under this subpart in every other case……
[30] Insofar as s 232(2)((b)) is concerned, the Supreme Court in Sena v R,7 summarized the correct approach. An appeal like the present is to proceed by way to rehearing, and if this Court as the appellate court comes to a different view on the evidence, the trial judge will have necessarily erred. However, it is for the Appellants to show that the judge erred, and this Court must exercise customary caution when addressing challenges to contested oral evidence.8 Further, some latitude must be permitted for “imperfection of expression”, and judgments must address the substance of the case advanced by the losing party, not exhaustively recite every issue or argument that party advanced.9
[31] And, as to s 232(2)(c), appeals on this ground address material miscarriages beyond the sufficiency of the evidence 10 On this a two-step test is required. First, this Court as the appeal court must determine whether there was an error, irregularity or occurrence in relation to or affecting the trial. Secondly, this Court must assess whether that error, irregularity or occurrence must have created a “real risk” the outcome of the trial was affected or resulted in an unfair trial or that the trial was a nullity. The class of matters that may constitute an error, irregularity or occurrence is not closed and a broad approach is required.11 A “real risk” arises whether there is a reasonable possibility that a not guilty verdict may have been delivered if nothing went wrong.12
7 Sena v R [2019] NZSC 55.
8 At [38].
9 At [37].
10 Wiley v R [2016] NZCA 28 at [25].
11 At [26].
12 Sungsuwan v R [2005] NZSC 57.
Challenge to service of Enforcement Order
[32] At the outset, Mr Page for the Appellants contended that the process server engaged by the Council Mr Lowe committed perjury when giving evidence before the District Court. This evidence was to the effect that Mr Page was served with the Interim Enforcement Order at his home address at Otaihanga on 23 December 2020. Mr Page claimed before me that this matter was brought up at trial before Judge Dwyer but he says the Judge would not delay matters for the Spark cell phone information to be made available, which he contends would have shown Mr Page was not home at the time on 23 December 2020 and could not have been served personally.
[33] As part of the new evidence provided for this appeal, a range of Spark records have been provided. According to both Mr Page and Ms Crosbie, these show that Mr Page was not at their home on 23 December 2020 when Mr Lowe indicated the copy of the Interim Enforcement Order had been served. It is claimed therefore that Mr Lowe must have committed perjury in his evidence regarding service of these documents.
[34] It is clear however that s. 352(1)(b)(ii) of the RMA provides that service of a document such as the Interim Enforcement Order here may be effected by “delivering it at the usual or last known place of address or business or the person”. As I understand it Mr Page accepted throughout, that he was residing with Ms Crosbie at the Otaihanga home address on 23 December 2020. It matters not, as I see it, whether he may either have been at home or absent on 23 December 2020. Clearly, and it does seem Judge Dwyer acknowledged this, the Interim Enforcement Order, was properly served on Mr Page here in any event, because it was delivered to his usual or last known place of residence.
[35] And as I understand the position, the Interim Enforcement Order, was also served on Ms Crosbie personally at the Otaihanga address on 23 December 2020.
[36] The question whether Mr Page may or may not have been at home on 23 December 2020 therefore must fall away. This ground of appeal, which occupied some significant time in argument before me from both Mr Page and Ms Crosbie, is therefore dismissed.
Challenges to evidence admissibility
[37] On this aspect of their appeal, the Appellants challenged two aspects of the Council case, on the basis they say, it relies upon improperly obtained evidence, and by implication they suggest the admission on this evidence has caused a miscarriage of justice. The first challenge is to the inspection of the Property that occurred on 10 February 2020.
Challenge to 10 February 2020 inspection
[38] The Appellants complain here that a search warrant was required for this inspection but was not obtained. This they maintain, must call into question the evidence relating to the 10 February 2020 inspection.
[39] The site inspection at the Property on 10 February 2020 occurred relatively early in the Council’s investigations into the Appellants activities. It was the third of ten inspections carried out at the Property and followed the service of four abatement notices on 24 January 2020.13 This inspection also preceded the filing of the first charges against the Appellants on 18 June 2020. The motivation for the inspection was described in his evidence by Mr Luty as “a notification from a member of the public of earthworks in a wetland”.
[40] On 10 February 2020, Mr Luty attended the Property with Mr Spearpoint and another assistant Mr McAllister. In the course of that inspection, it seems, the three officers walked between the wetlands on the Property to investigate the extent of works that had been undertaken. Mr Spearpoint, who is a qualified ecologist, also conducted scientific tests to determine whether the Property contained wetlands. Mr Luty indicates that he also spoke with the informant at the time.
[41] The RMA, at s 332 contains a power of inspection, and at s 334 a power to apply for a search warrant. The relationship between these provisions, and the point at
13 The abatement notices to Mr Crosbie and Ms Page related to allegations of unauthorised livestock access to wetlands and unnamed tributaries of a stream in the area, alleged unauthorised reclamation of unnamed tributaries of that stream, and unauthorised earthworks adjacent to and within wetlands and tributaries of the stream.
which section 332 will become available to an enforcement officer, was explained in this Court in Re Waikato Regional Council14 by Venning J as follows:
[40] Two common situations involving complaints are where a neighbour complaints that a building appears to exceed the height restriction in a plan or a neighbour or interested passer-by reports a discoloration in a stream running through a dairy farmer’s property. In those situations the enforcement officer would prima facie be entitled to rely on section 332 to enter the relevant property, carry out an inspection and in the case of the farm, take samples to determine whether or not the property owner was acting in compliance with the relevant plan or terms of the resource consent. In my view, evidence obtained on such a visit would prima facie be admissible in any future Court proceedings, if a decision was later taken to prosecute. Without further information, the purpose of the inspection is to respond to the complaint and determine whether there is compliance or not with the plan and/or consent.
[41] Another example can be given. After an initial inspection to determine compliance with the conditions of the resource consent, non-compliance may be discovered. The Council could then issue an abatement notice. An enforcement officer could then properly rely upon section 332 to attend the property and carry out an inspection including sampling to determine whether or not that abatement notice was being complied with. That is expressly authorised by the section: Section 332(1)(b). It may well be that if the abatement notice is not being complied with then it is likely a prosecution would follow (section 338(1) and section 339). However, that does not mean that an enforcement officer would have to obtain a search warrant under s334 before returning to the property after the issue of an abatement notice. Section 332 specifically authorises an inspection to determine compliance. Similar reasoning applies to compliance with enforcement orders …
………
[44] The determining factor is the underlying purpose for the visit to the property. That is clear from the wording of section 332. An inspection is authorised under section 332 if it is for the purpose of determining compliance or contravention: section 332(1) …
[42] The description in the evidence of Mr Luty here of the motivation for the 10 February 2020 inspection (a description not challenged in any way in cross- examination at the District Court hearing), in my view falls well within the bounds of s 332. The inspection followed the service of the four abatement notices I noted above. The inspection might properly be seen at the very least therefore, as one to determine whether or not those abatement notices were being complied with, following earlier non-compliance.
14 Re Waikato Regional Council [2003] NZRMA 481 [HC].
[43] Later, the Council went on to obtain and execute a search warrant on 1 May 2020 relating to other matters, which I discuss below. It is reasonable to conclude, as I see it, that the Council was well aware of the need to obtain a search warrant when it was simply gathering evidence and not as here, when it was inspecting the Property to determine whether the abatement notices in question were being complied with.
[44] The Appellants’ challenge to the inspection on 10 February 2020 is dismissed. There was no impropriety in the obtaining of evidence as a result of that inspection.
Challenge to execution of the search warrant on 1 May 2020
[45] The Appellant’s second evidential challenge here relates to the search warrant executed at the Property on 1 May 2020. From the evidence of Mr Luty, the purpose of that search, was noted as being, to gather evidence of suspected offending in the disposal field and various wetlands throughout the Property.
[46] As I understand the position, the Appellants criticise two aspects of the search warrant. The first criticism is, that the warrant was executed improperly in so far as Mr Page, (who was present during the search) claims here he was not provided with a copy of the warrant when he requested one.
[47] In the Verdicts Judgment, Judge Dwyer dealt with this at [71] – [88]. It seems that at trial a mistake occurred, due to an honest misunderstanding which Mr Luty had of what was required to execute the warrant, after he had spoken with a qualified issuing officer. Mr Luty, it seems, erroneously supplied Mr Page, a notice under the Search and Surveillance Act 2012 rather than an entire copy of the search warrant as required by section 131(1). This was an error acknowledged by the Council.
[48] In the District Court therefore, the sole issue on this aspect before involved the balancing act required by s. 30 of the Evidence Act 2006. In his decision, Judge Dwyer concluded, that the impropriety was “considerably outweighed” by the nature and
quality of the evidence and the seriousness of the alleged offending.15 The Judge therefore admitted the evidence.
[49] Before me, the Appellants did not present, any specific or convincing challenge to the Court’s reasoning on the section 30 balancing act. I am satisfied that Judge Dwyer here in his lengthy, detailed and careful judgment, properly considered this point. Nothing has been provided on appeal to persuade me that the Judge’s conclusion and his reasons on this aspect were wrong. I dismiss this challenge advanced on appeal by the Appellants.
[50] The Appellant’s second criticism of the search warrant is that it lacked “specific details of any evidence to be searched for and whether or not the evidence found matches what was specified”.
[51] Without more I find that this contention is entirely without merit. Page 2 of the search warrant is detailed and records that Council officers were empowered to undertake a range of specified actions. These related precisely to the activities undertaken as Mr Luty’s evidence confirms. This criticism of the search warrant is wrong and it is also dismissed.
[52] In conclusion I find there is no merit in, the Appellant’s challenges to the admissibility of evidence considered by Judge Dwyer. They are all dismissed.
Appellants challenges to the classification of natural wetlands
[53] As best as I can understand from Mr Page’s submissions on this appeal, a key point of the Appellants’ defence case at trial was a suggestion that all the wetlands in question (excluding Wetland 3C) were impacted or created by human activity and therefore must be excluded from the definition of “natural wetland” in the PNRP. This was in opposition to the Council’s case here. That case, as it is presented here and also as it was outlined at trial, insisted that those six wet areas on the Property constituted “natural wetlands” as defined in the PNRP.
15 At [88].
[54]“Natural wetland” is defined in the PNRP as follows:
Natural Wet Land is a permanently or intermittently wet area, shallow water and land water margin that supports a natural ecosystem of plants and animals that are adapted to wet conditions, including in the beds of lakes and rivers, the costal marine area (e.g. saltmarsh), and groundwater-fed wetlands (e.g. springs).
Natural wetlands do not include:
(a)damp gully heads or wetted pasture, or pasture with patches of rushes, or
(b)areas of wetland habitat that have established in or around bodies of water specifically designed, installed and maintained for any of the following purposes:
water storage ponds for
public water supply, or
(ii)hydroelectric power generation, or
(iii)firefighting, or
(iv)irrigation, or
(v)stock watering, or
(ii)water treatment ponds for
(i)wastewater, or
(ii)storm water, or
(iii)nutrient attenuation, or
(iv)sediment control, or
(v)animal effluent, or
(iii)beautification, landscaping, amenity, or
(iv)drainage.
See also significant natural wetland and outstanding natural wetland “wetland” has the same meaning as in the RMA.
Note that, because of the rarity of wetlands in the Wellington Region, all natural wetlands will meet the representativeness and rarity criteria listed in Policy 23 of the Regional Policy Statement 2013 and therefore meet the definition of significant natural wetland.
[55] Significantly, the Resource Management Act 1991 in s 2 defines “wetland” as follows:
wetland includes permanently or intermittently wet areas, shallow water, and land water margins that support a natural ecosystem of plants and animals that are adapted to wet conditions.
[56] As I see the position, what is clear from these definitions it that, a natural wetland may be created by artificial works that are neglected or that cannot be shown to be for one of the defined purposes of the outlined definition. Mr Spearpoint confirmed this in his report and evidence. It seems too there is no general gloss on the definition that excludes wetlands that have been created or affected by human activity, such as, the laying of a gas pipeline.16If this was not to be the case then, as the respondent submits here and I agree, the very limited stock of wetlands in New Zealand would be dramatically reduced.
[57] At the trial before Judge Dwyer, the primary evidence for the Council on this issue came from Mr Spearpoint. He is acknowledged as an expert in wetland ecology with considerable experience conducting over 70 stage one wetland delineation assessments in the Wellington Region. Mr Spearpoint produced a detailed report and provided extensive evidence on this matter. In addition, during the trial, he was cross- examined at length on his analysis, during the trial, by Mr Page.
[58] It seems the “evidence” which Mr Page endeavoured to advance on this issue at trial, was limited to what Judge Dwyer described as Mr Page’s “speculative hypothesis” as to the historical use of the Property. As to this, Judge Dwyer found that “Mr Page has no expertise that was made known to the Court in the assessment of wetlands”17 and that Mr Spearpoint was the only witness qualified to give expert evidence on this topic. Judge Dwyer, clearly preferred that expert evidence of Mr Spearpoint, in all respects. He concluded all six wetlands identified by the Council were “natural wetlands” for the purposes of the PNRP. I note on this and regarding his factual findings, that Judge Dwyer is a judge warranted to a specialist division of the District Court relating directly to environment matters. His factual findings as to the
16 Baigent v Tasman District Council [2019] NZHC 1750 at [27]-[30] and especially at [31]. See also the Verdicts Judgment at [32].
17 Verdicts Judgment at [28].
presence of wetlands on the Property and their extent is generally in my view not to be questioned here in any real way, in the absence of compelling evidence, and particularly expert evidence which suggests an error has occurred. No such compelling evidence has been provided on this appeal, nor as I find it has Mr Page been able to qualify himself as an expert here.
[59] I add one further comment. To an extent, these conclusions I have noted above were also supported at trial, as I understand it, in the evidence of Mr Luty, the Council’s primary witness of fact as to activities on the Property undertaken by the Appellants. As the Senior Environmental Protection Officer at the Council in charge of inquiries in this case, Judge Dwyer in his Verdicts Judgment at [12] stated:
I found Mr Luty to be an honest and methodical witness whose evidence was supported by the comprehensive written, photographic and video evidence he produced. I have accepted his evidence as to the factual issues in all respects.
[60] On this appeal, as I have noted above, Mr Page and Ms Crosbie, were granted leave to admit as further evidence an 8 February 2022 “Report” prepared by Mr Page along with photographs and other records. Mr Page in this “Report”, endeavoured to assert amongst other things that he does have some expertise in this area as he has “built, designed, and maintained stock ponds, drained wetlands, and installed multiple drainage systems” and further that he is “qualified to reinstall water and plastic septic systems”.
[61] At trial before Judge Dwyer, as I understand the position, it appears Mr Page’s only qualification was noted as being a licensed building practitioner (although he may have been suspended from this).
[62] Nothing was placed before me on appeal other than Mr Page’s “Report” to suggest that he has any real expertise in the areas at issue here. No independent evidence to confirm this was provided. I find too that the “Report”, before the Court, lacks credibility and is not in any sense persuasive. It seems too that Mr Page takes positions on this appeal as to the history or ecology of large sections of the Property which are irreconcilable with positions he took at trial before Judge Dwyer. By way of example, as best I can tell, he now denies that Gully Wetland C was a natural
wetland when previously at trial he accepted it was. Before me he did not appear to acknowledge or explain any reasons for these divergences.
[63] I conclude first that, Mr Page could not be considered an expert in these matters, and secondly that, in any event in a general sense, the arguments that he has endeavoured to advance before me on appeal were not in any way persuasive.
[64] With those preliminary comments in mind, I now turn briefly to address each of the wetland areas appeals at issue here.
Upper Wetland / Wetland 1
[65] On this aspect Mr Page, as I understand it, accepts in his “Report” the Upper Wetland is a wetland. He endeavoured to assert as he did at trial however, that this wetland was created or enlarged by the installation of the gas pipeline in the area in 1973. Certain photographs were presented to the Court too relating to this.
[66] This matter, in my view, is quickly disposed of. Mr Page’s theory in this regard falls away, as I see it, because, as Judge Dwyer explained in his Verdicts Judgment, this factor provides no barrier to the Upper Wetland being classified as a “natural wetland” under the PNRP. Even if the gas pipeline, somehow, created or enlarged the area this does not prevent the Upper Wetland from satisfying the definition of “natural wetland” in the PNR. This is because, even on Mr Page’s own account, none of the exceptions in the exclusion clause (b) of the PNRP definition apply here. The Council was able to show at trial that the area was currently a wetland, and Judge Dwyer accepted and found this had occurred. Nothing Mr Page has presented on appeal questions in any real way or disturbs that assessment.
Lower Wetland/ Wetland 2
[67] Mr Page on this appeal, appears to assert that Lower Wetland 2 was wrongly identified as a wetland because it is a stock pond. Again, photos were appended to his Notice of Appeal, which he maintains show this development. As I understand the position this claim from Mr Page is a major departure from the position he adopted at trial. There he accepted a “seep feed wetland” was present, but he contended that the
bund at the base of the wetland was a land bridge and created “a well-designed storm water drainage pond” or “a manmade roading drainage stock dam with roadway”. Indeed, as I understand the position, at trial Mr Page expressly denied the Lower Wetland was originally a stock pond, a position which he, now endeavours to change on appeal.
[68] On this aspect, again Judge Dwyer at trial accepted the evidence of Mr Spearpoint that the Lower Wetland could have been artificially created, but the key point was that it had not been maintained in any way. No evidence offered by Mr Page challenged that conclusion, nor has he put anything persuasive before this Court on appeal to support his assertions here.
Gully Wetland A/ Wetland 3A
[69] Mr Page contends on this appeal that Gully Wetland A is a “sediment retention pond”. He has produced photographs which he says corroborate this. At trial, it appears Mr Page appeared to accept that a “human-made” wetland was present and, in his evidence, advanced a similar speculative theory that the wetland was a “dry retention pond”. During the trial, at other times, Mr Page has suggested the area “could’ve even been a pond at one point and had filled in during possibly the last 10 years”, or that a swale had been created during the construction of a nearby road which extended all the way down the gully to this area.
[70] On these aspects, Judge Dwyer preferred what I see as the clear evidence from Mr Spearpoint over what must be seen as the speculative theories which Mr Page had advanced. That was entirely appropriate. I find too that nothing Mr Page has endeavoured to put forward on this appeal to suggest that Judge Dwyer was wrong as to this aspect is in any way persuasive here. It does seem, too that, at trial Mr Page accepted the original design and purpose of the supposed “pond” was not obvious, because all that exists now are the “remnants” of what he maintains was once installed. This concession in my view is sufficient to demonstrate that Mr Page’s theories here do not disclose a natural wetland that has been “specifically… maintained” as a water treatment pond for sediment control or for any other purpose listed in the definition of “natural wetland” in the PNRP. It follows therefore that Mr Page’s hypothesis here,
even if it might possibly have had some substance (and I have found otherwise), does not affect the conclusion reached by Judge Dwyer that Gully Wetland A was a natural wetland.
Gully Wetland B/ Wetland 3B
[71] On this aspect, Mr Page asserts that Gully Wetland B lacks ground water seeps preventing it from being classified as a wetland “in accordance with RMA requirements”. As I see it however, this position is entirely irreconcilable with the position that Mr Page took at trial. There, he accepted that a seepage wetland was present in this area.18
[72] Against that background, I find that any new “evidence” which Mr Page endeavours now to present, together with his submissions on this point may be properly rejected. His submission that “RMA requirements” stipulate that there must be “natural groundwater seepage” I find is wrong here. The critical issue is whether the area is “permanently or intermittently wet”. This is required by the PNRP definition I have outlined above.
[73] Mr Spearpoint in his expert evidence established clearly that this definition was met. He found that the area was “extremely wet” when surveyed after “an extended period of dry weather” with wetland obligate species some 70-100 years old.19 Judge Dwyer accepted this evidence and assessment. No credible evidence was put forward on appeal to suggest there was any doubt that a wetland was present here.20
Gully Wetland C/ Wetland 3C
[74] Mr Page asserts here that Gully Wetland C is a “watercourse”, and not a “wetland”. Again this is a major departure from the position he took for the appellants at trial. There he stated throughout in his evidence and submissions that “Wetland C is I believe, [a] totally natural wetland” and “I have agreed that Wetland 3C is definitely a wetland”.21
18 Notes of Evidence at [312]-[313].
19 Notes of Evidence at [226] lines 19 -33.
20 Verdicts Judgment at [47].
21 Notes of Evidence at [284] line 25 and at [367] line 22.
[75] Mr Page’s argument relating to this is difficult to follow. I find however, that no credible evidence of any kind is put forward to corroborate his new assertions here, or to explain why Mr Spearpoint may have been wrong to conclude from the presence of 70 year old wetland vegetation and a permanently or intermittently wet area, that a natural wetland was present. I find that Judge Dwyer made no error in his conclusions in this area.
Culvert Wetland/ Wetland 4
[76] Mr Page asserts that the Culvert Wetland is a “stormwater culvert pond” and two photographs he has presented on appeal, he contends, show that the Culvert Wetland did not exist in 1998. Broadly speaking, this position is consistent with the stance taken by Mr Page for the appellants at trial. He maintained there that “the head of the [Culvert Wetland] is natural” and contains a natural seep, but the wetted area was enlarged by the presence of Anlaby Road.22 I am not entirely clear however as to whether Mr Page still now accepts the “head part” of the Culvert Wetland is a natural wetland.
[77] At trial, Judge Dwyer accepted the evidence of Mr Spearpoint that historical imagery from 1966 showed a seepage above the Culvert Wetland which caused “a natural accumulation of water at … the culvert” at the time Anlaby Road was built.23
[78] In other words, Judge Dwyer accepted that the construction of Anlaby Road substantially impacted the wetland but the key point was that the accumulation of water was incidental, rather than the creation of an area “specifically designed, installed and maintained for….[a] water treatment pond for… stormwater” as the PNRP requires.
[79] A crucial hurdle here for Mr Page, as I see it, is the need to demonstrate that Judge Dwyer was wrong to conclude that Mr Page’s “contention that the pond/ wetland was formed as a stormwater retention pond was entirely speculative”. 24 I find that no credible evidence of any kind has been adduced here in support of Mr Page’s
22 Notes of Evidence at [368] lines 1-3 and [236] lines 11-13.
23 Verdicts Judgment at [54].
24 Verdicts Judgment at [54].
theory. Judge Dwyer was entitled to prefer Mr Spearpoint’s expert evidence on this issue, which he did. No error occurred here.
Challenges to the evidence underlying specific charges
Charge 3: Challenge to existence of riverbed
[80] Charge 3 alleges that between 30 May 2019 and 19 December 2019 Mr Page constructed a crossing over an unnamed tributary of the stream on the Property below Gully Wetland C, and that Ms Crosbie permitted him to do so. At trial, evidence given by Mr Luty was to the effect that during an inspection that he undertook on 19 December 2019, he saw a tree had been felled into the stream and dirt had been compacted on top of the tree to effect a crossing.
[81] Mr Page accepted at trial that he was responsible for the crossing, but denied that there was any body of water present.25 Two videos had been played before Judge Dwyer however relating to this and the sound of a significant amount of running water in the stream could be heard on both.26 When suggested to Mr Page in cross- examination that water could be heard on these videos, he replied that the water was “way down and I don’t know how far down, it could be 5 metres, 10 metres down, I don’t know. It just tracks underneath the formation of rocks underneath… I would call it a natural culvert underneath”.27
[82] On this issue, Judge Dwyer preferred Mr Luty’s evidence, which he was entitled to do. The appellants in this appeal endeavour to assert that the watercourse here “flows underground from 50 metres upstream and surfaces 100 metres downstream from the vehicle crossing”.28
[83] I am satisfied no evidential foundation exists for these assertions. And I note too that the District Court was left with, the evidence of Mr Luty, together with his video recordings, and Mr Page’s simple denial. The decision of Judge Dwyer therefore
25 Notes of Evidence at [333] lines 30-31.
26 Notes of Evidence at [35].
27 Notes of Evidence at [334] lines 9-13.
28 Notice of Appeal at [15].
to prefer Mr Luty’s evidence on this point, in my view, was reasonable and did not precipitate any miscarriage.
Charges 24 and 25: Challenge to evidence of water takes to troughs
[84] In his decision, Judge Dwyer found, that Mr Page had installed two water takes in Gully Wetland B that ran to two concrete water troughs. He concluded that this proved charges 24 and 25.29 The appellants challenge this finding. Through Mr Page, they accept that the two concrete water troughs relevant to these charges properly contained water from the reticulated Kāpiti Coast District Council supply, rather than water unlawfully abstracted from the two water takes.
[85] At trial, Mr Luty gave evidence that during his inspection on 7 April 2020 he identified two water takes in different gully heads of Gully Wetland B that fed water via pipes down to 2 different water troughs installed in Gully Wetland B.30 He produced clearly visible videos and photographs of each take and trough.
[86] Mr Page at trial accepted responsibility for the water takes.31 But he added that the takes were “only operational for about 5 days and then it didn’t– it kept blocking up, so I just abandoned it”.32 Judge Dwyer noted in his decision that Mr Page’s acceptance that the takes were operational for five days was sufficient here to prove the charge against the appellants. Even if the troughs may have been filled with water from the Kāpiti Coast District Council on other occasions, I am satisfied as Judge Dwyer found, this was not material. No proper reasons of any kind were provided here to suggest this court should depart from Judge Dwyer’s conclusions.
Charge 26: Challenge to evidence of water take to an Intermediate Bulk Container (IBC)
[87] The appellants challenge Judge Dwyer’s decision to accept the Council’s evidence on charge 26 that Mr Page constructed a water take below the Upper Wetland that flowed to an IBC.33 It appears from what Mr Page endeavoured to advance before
29 Verdicts Judgment at [127]- [128].
30 Notes of Evidence at [71]- [72].
31 Notes of Evidence at [354]-[355]
32 Notes of Evidence at [353] Lines 11-12
33 Verdicts Judgment at [129].
me that the appellants contend either that the IBC did not contain any water or that the IBC contained water from the Kāpiti Coast District Council reticulated supply.
[88] Mr Luty, before the District Court, gave evidence that when he inspected the Property on 24 June 2020, he found an IBC approximately 1 m3 in volume had been placed below the Upper Wetland, and a pipe ran from the lower point of the Upper Wetland to a blue drum with a further pipe connecting the blue drum to the IBC.34 Videos and photographs of the visible take were provided and Mr Luty gave further evidence that when he inspected the Property again on 11 December 2020, water was overflowing the IBC and running over the track joining the Upper Wetland and the Lower Wetland.35
[89] On this, it appears Mr Page denies that he had ever finished fully connecting the water take and did not know if the IBC the Council alleges was accumulating water ever filled.36
[90] Specifically, in his general cross-examination in this area, Mr Page explained relating to this IBC that:
…it’s just there was pipes all over. I just shove them in there. Doesn’t mean to say they are actually connected… I haven’t been up to the property to actually check to see if it miraculously worked unintentionally.
And, he suggested that he had connected pipework:
…just to tidy it up… it may look like its actually working but it’s never actually hooked up properly.37
[91] On these points, Judge Dwyer rejected Mr Page’s evidence as “confusion and obfuscation”.38
[92] No reasons on this appeal have been advanced to suggest that this assessment by Judge Dwyer was in any way wrong. I am satisfied the evidence Mr Page
34 Notes of Evidence at [82] –[84].
35 Notes of Evidence at [98] line 9.
36 Notes of Evidence at [358].
37 Notes of Evidence at [359]- [360].
38 Verdicts Judgment at [130].
endeavoured to provide was improbable and self-serving. In the District Court it was no surprise that Judge Dywer chose to prefer Mr Luty’s evidence. Nothing further was adduced on this appeal that in any way, impacts the District Court decision on this aspect.
Charges 31 and 33: Challenge to distance between earthworks and Lower Wetland
[93] In his decision, Judge Dwyer found that Mr Page conducted earthworks within 5 metres of the Lower Wetland as alleged by charges 31 and 33. The appellants now challenge this finding and more specifically Mr Page asserts that the earthworks were 7 metres from lower wetland. The relevance of this 7 metre measurement appears to come from r. 99 of the PNRP, the regional rule which the Council allege was contravened here, which prohibits “earthworks… within 5 metres of a surface water body”.39
[94] As background to his finding in this area, Judge Dwyer concluded that Mr Luty’s evidence at trial that he saw a small area of earthworks less than 30 square metres when he inspected the Property on 5 August 2020 should be accepted. That evidence from Mr Luty was that the earthworks were within 5 metres of the Lower Wetland and a photograph was produced to confirm this.
[95] In evidence before the District Court, Mr Page it seems agreed, that he was responsible for the earthworks in question but he suggested they were “over 5 metres above the stormwater/ stock pond”.40
[96] On this appeal, Mr Page for the appellants produced three undated photographs said to prove that the earthworks were 7 metres away. Although there is some question as to whether this evidence is fresh, nevertheless I find:
(a)These photographs in any event, are not cogent evidence here. Photographs 12 and 13 do not show the Lower Wetland so it is impossible to estimate the distance between the earthworks and the wetlands. Photograph 14 which does show the Lower Wetland, also
39 “Surface water body” is defined to include natural wetlands.
40 Notes of Evidence at [363] Lines 16-24
shows disturbed earth immediately adjacent to the wetland. This as I see it would tend to support Judge Dwyer’s conclusions on this aspect.
(b)The evidence Mr Luty provided, including a photograph he took on 5 August 2020, related directly to the charging period in question. I am satisfied here, this evidence of Mr Luty, must be preferred to the undated photographs the appellant has put before the Court. Mr Luty’s photograph, it seems, very clearly shows the edge of the earthworks abutting the Lower Wetland and certainly within 5 metres of the wetland to justify the charges and conclusions reached in the District Courts.
Additional Issues
[97] One new issue Mr Page endeavoured to put before this Court on appeal was a Ministry for the Environment document said to provide guidance as to the interpretation of the proposed National Policy Statement for Freshwater Management 2020 (the NPPS). The NPPS as I understand it, did not come into effect until 3 September 2020. The last of the relevant charges the subject of this appeal, charge
[34] related to events occurring up to 5 August 2020 which was pre-commencement of the NPPS.
[98] I find this NPPS and the guidance document therefore have no application here. But, in any event, even if it was to be taken into account here, in my view it makes little difference to Judge Dwyer’s findings or to the outcome of this appeal. In clarifying the Ministry for the Environment’s policy intent and to inform its national policy thinking, at the outset it includes the important disclaimer:
…this guide cannot provide legal interpretation of RMA national instruments or overrule legal decisions…
Judge Dwyer accepted the expert evidence which was before him and more particularly that of Mr Spearpoint and his methodology, which the Judge found to be robust and appropriate here. This case as I see it was not coloured by any recent changes – noted in the NPPS or otherwise – to wetlands hydrology issues.
[99] Mr Page’s attempted focus on the genesis or lineage of various types of wetland (i.e. human-made created wetlands versus natural wetlands) in my view was entirely misplaced here. His focus missed the point of how wetlands are delineated and defined. They do occur by human-made efforts and these are not excluded from the definition.41 (This is also in the NPPS itself).
[100] Another new matter that Mr Page endeavoured to raise on this appeal was a challenge to various abatement notices and the Interim Enforcement Order. But, as I understand it, the notices were never challenged earlier. Judge Dwyer in considering matters before him had to consider unchallenged abatement notices and the Enforcement Order and found they had been breached. I am not persuaded there is any merit in this further challenge Mr Page attempts to raise before me.
Conclusion
[101] For all the reasons I have outlined above, I am satisfied the appellants have been unable to show that Judge Dwyer erred in any way in his extensive and detailed Verdicts Judgment here.
[102] I am satisfied no error, irregularity or occurrence in relation to, or affecting the appellants trial before the District Court occurred such that either a “real risk” to the outcome of the trial occurred, or that the trial was in any way unfair. I am not persuaded that any miscarriage of justice has occurred here.
[103]Accordingly, this appeal is dismissed.
Gendall J
Solicitors:
Luke Cunningham & Clere, Wellington
41 See Baigent v Tasman District Council [2019] NZHC 1750.
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