Page v Wanganui District Council - [2014] NZHC 3161

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2014-485-8799 [2014] NZHC 3161

BETWEEN
ADRIAN NEIL PAGE

Appellant

AND

WANGANUI DISTRICT COUNCIL Respondent

Hearing: 8 December 2014

Counsel:

Mr Page, appellant in person
P Drake for Respondent

Judgment:

11 December 2014

JUDGMENT OF THE HON JUSTICE KÓS

[1] Mr Page appeals against a decision of Judge Dwyer in the Environment Court in June 2014. The decision dealt with two applications. The first sought cancellation of an enforcement order dated 22 June 2009. The second sought cancellation of the same order, along with an earlier interim enforcement order dated
13 January 2009. The Court dealt with the two applications together.1 Its decision

was the 11th made by the Court in proceedings between Mr Page and Wanganui

District Council.

Background

[2] The orders in question were made against Mr Page, Ms Wilson and Mr Shaw as registered proprietors of a steep hillside property at 86 Ikitara Road, Wanganui. They were made over five years ago. They have been the subject of persistent but fruitless challenge since then. The property has long since been sold by the Official
Assignee following Mr Page’s bankruptcy.

1 Page v Wanganui District Council [2014] NZEnvC 127.

PAGE v WANGANUI DISTRICT COUNCIL [2014] NZHC 3161 [11 December 2014]

[3] The abatement notices were issued to address earthworks on the hillside property at Ikitara Road. Mr Page places some weight on the fact that earthworks were permitted activities under the district plan as it then stood. That is no carte blanche, however. There is an overriding duty to avoid, remedy or mitigate adverse effects on the environment from any activity, permitted or not.2 Enforcement orders
and abatement notices may be issued to ensure compliance with that obligation.3

[4] Evidence, accepted by both District Court and Court of Appeal on Mr Page’s unsuccessful appeal against conviction for contravening abatement notices, was that Mr Page disregarded a series of abatement notices and enforcement orders. It will suffice to set out here the Court of Appeal’s findings:4

[6] Mr Page was one of three trustees who, together, were the registered proprietors of a property in Ikitara Road, Wanganui. The property is on a steep hillside, consisting of about 6,700 square metres. Before the property was purchased, it was in a vegetated and undeveloped state, with mature trees and substantial groundcover.

[7] In October 2008, Mr Page undertook earthworks to develop an access track. On 31 October 2008, following complaints from neighbours that silt-laden stormwater had been discharged from the property onto Ikitara Road and geotechnical advice that the slope stability of the property may have been compromised, the Council issued abatement notices to all three trustees. The abatement notice was served on Mr Page on 31 October 2008, by Mr McGhie.

[8] The purpose of the abatement notice was to reduce actual or likely adverse effects on the environment, arising from the earthworks. This included actual or potential subsidence on, and the flow of silt-laden stormwater over, adjoining land. The notice required…

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] NZHC 3161
Decision Date: 11 December 2014

CaseChat Overview and Summary

Adrian Neil Page appeals against a decision of Judge Dwyer in the Environment Court in June 2014, which dismissed his applications to cancel enforcement orders issued against him and two others for earthworks on a steep hillside property in Wanganui. The orders were issued following numerous abatement notices for adverse environmental effects from the earthworks, which Mr Page had disregarded. The High Court held that the appeal was misconceived and dismissed it.

The legal issues before the Court were whether the abatement notices were defective, whether the search warrant used to gather evidence was valid, and whether Mr Page could rely on a provision in the Resource Management Act 1991 to avoid the enforcement orders. The Court found that the abatement notices were irrelevant to the enforcement orders, which stood on their own. The validity of the search warrant had already been examined in Mr Page's criminal prosecution, where it was upheld. Finally, Mr Page had misread the provision in the Act and it could not be used to invalidate the enforcement orders where his activities caused significant adverse environmental effects.

The Court found that the appeal was a further attempt to relitigate issues that had already been decided. The same issues had recently been the subject of a jury trial, where Mr Page was convicted of offences pertaining to breach of the enforcement orders. The Court concluded that the appeal was misconceived and dismissed it. The Wanganui District Council was entitled to costs on a 2B basis.

The final orders of the Court were that the appeal be dismissed and that the Wanganui District Council was entitled to costs on a 2B basis. If the parties could not agree on the details of the costs, the Registrar could fix the final sum.

Orders