Page v Wanganui District Council
[2014] NZHC 3161
•11 December 2014
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 RespondentJudgment:
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 Mr Page (who was responsible for the works) to “[c]ease cutting, digging and other earthworks activities and vegetation clearance on the property”.
[9] Two reports were provided by Abuild Consulting Engineers Ltd, on 2 and 22 December 2008. They were made available to the Council. There is a dispute about whether they were obtained for Mr Page or the Council. On the view we take, it does not matter which version is correct.
[10] The reports recommended further engineering design of steps required to mitigate risks identified by the Council, including the risks of erosion, land instability and uncontrolled discharge of stormwater.
2 Resource Management Act 1991, s 17.
3 Section 17(3)(b).
4 Page v Wanganui District Council [2012] NZCA 324 at [6]–[22].
[11] On 26 December 2008, a neighbour saw Mr Page carrying out further earthworks. Those works continued until 1 January 2009. They included extensive cutting of the hillside, the realignment of the internal access track and the movement of fill within the site. On 2 January 2009, Mr McGhie served a second abatement notice on Mr Page. The notice required Mr Page to desist from undertaking works, in the same terms set out in the first notice.
[12] Nevertheless, Mr McGhie saw Mr Page undertaking similar works, between 2 January 2009 and 12 January 2009. A neighbour also observed that a stormwater channel had been diverted in a manner that caused it to flow through his property.
[13] On 13 January 2009, the Council sought and obtained an interim enforcement order from the Environment Court. The interim order required cessation of earthwork activity and the restoration of the pre- existing stormwater channel away from the neighbours. Although Mr McGhie served this order on Mr Page on the morning of 14 January
2009, Mr Page was observed operating a digger and undertaking prohibited works later that day. During this time, the Wanganui region
experienced heavy rain, between 9 am and 4 pm, on 10 February 2009. This caused silt-laden water to discharge from the property, flow across Ikitara Road and onto other neighbouring properties. That material blocked the closest stormwater sump on the road. The blockage was later
cleared by contractors engaged by the Council
[14] On 4 April 2009, Mr Page was seen carrying out excavation work. It was alleged that he acknowledged that was being done without engineering design reports. Further work of a similar type was observed on 6, 8 and 9 April 2009.
[15] The Council obtained an extension of the interim enforcement order on 8 April 2009. That second order, as well as a memorandum filed on behalf of the Council in support, were served on Mr Page on 9 April
2009. Mr McGhie visited the property on 17 April 2009. He observed that the new track was about 45 metres long and about 150–200 square
metres of the property had been cleared of vegetation. In his view, that
work contravened earlier notices and orders.
[16] On 27 April 2009, Mr McGhie observed that a detention pond had been modified. An outlet pipe had been capped and a newly formed diversion channel dug. The effect of this was to divert water from the pond to a neighbouring property. Following this, Mr McGhie issued a notice under s 459 of the Local Government Act 1974, requiring the diversion to be removed and the course of the stormwater drain altered so that it no longer ran onto the adjoining property. That notice was served on Mr Page, requiring him to rectify this by 28 April 2009.
[17] An inspection of the property, on 28 April 2009, found that the s 459 notice had not been complied with. An enforcement officer from the Council then undertook work required to prevent water continuing to flow onto the neighbouring property. In continuing defiance of the notices and orders, Mr Page re-dug the diversion channel, with the
consequence that the Council enforcement officer had to return to restore the original position. Even then, on 8 May 2009, Mr Page again went back to the property and re-dug the channel, placing a plastic bag over the overflow pipe.
[18] Because of heavy rain on the evening of 8 May 2009, a fast flowing river of silt-laden water poured onto the adjacent land and into the neighbour’s house and garage. That resulted in thick mud being deposited throughout his section and garage. It was necessary for further restoration work to be undertaken by the Council.
[19] At about 1 pm on 9 May 2009, Mr Page again returned to re-dig the drainage channel to have water flow towards the neighbouring property. Finally, police were called and Mr Page was arrested.
[20] On 22 June 2009, after a hearing in which Mr Page participated, the Environment Court issued an enforcement order requiring Mr Page to arrange for an erosion and sediment control plan, an earthworks plan and a stormwater design plan to be prepared by a professional engineer within
15 working days. Implementation of the plans within a further period of up to 20 working days was also required.
[21] This order prevented Mr Page from undertaking further development work, save for urgent remedial work to which those plans referred. He was also required to obtain a topographical survey of the site, stability assessment of proposed building sites and a scheme development plan, all of which were to be submitted to the Council before further development work was undertaken. Nevertheless, in breach of those requirements, Mr Page continued to undertake earthworks on the property between 7 and 14 August 2009.
[22] On 17 August 2009, a search warrant was executed so that officers could enter the property and ascertain whether any offence had been committed. It was ascertained that earthworks undertaken by Mr Page did not comply with the enforcement order.
The decision appealed
[5] The Court identified three issues raised by Mr Page’s applications. The first related to an allegedly defective abatement notice (or notices) issued by the Council against Mr Page, Ms Wilson and Mr Shaw, prior to the interim enforcement order being issued. The Court noted that the abatement notices were not relevant to the issuing of the enforcement orders. Both orders were based on the Court’s finding that works undertaken by Mr Page on the property had significant adverse effects.
While the abatement notices were part of the factual background to the issue of the interim and final enforcement orders, they were not the foundation for the orders.5
[6] The second issue related to a search warrant obtained by the Council during the course of the initial enforcement order proceedings. The Court noted that Mr Page did not challenge the validity of the search warrant during the enforcement order hearing in May 2009. The validity of the search warrant was examined in the District Court prosecution of Mr Page. Mr Page was found guilty of breaching the enforcement order as a result of that prosecution. The Environment Court concluded it was not appropriate to revisit the matter five years after the initial enforcement order proceedings. Even if it were, the Court would decline to do so as the issue had
been addressed in the District Court trial.6
[7] In respect of the third issue, Mr Page sought to rely on s 319(2) of the Resource Management Act 1991 (the Act). The Court rejected this reliance on the grounds that Mr Page had not, at the time of the enforcement order hearing in 2009 or any time in the intervening years, made any suggestion that his activity fell within the ambit of s 319(2), and that Mr Page had not provided evidence to support that part of his application.7
[8] The Court concluded:8
These current proceedings are a further attempt by Mr Page to relitigate and sow confusion in respect of the enforcement orders made against him (and others) five years ago. I have previously described the various proceedings brought by Mr Page as being misconceived.9 A similar comment applies to this current application. In light of the fact that the same issues have recently been the subject of a jury trial and Mr Page has been convicted of offences pertaining to breach of the enforcement orders, it seems possible that these proceedings have been brought in an attempt to interfere in the outcome of those proceedings.
[9] The applications were struck out.
5 Page v Wanganui District Council [2014] NZEnvC 127 at [9].
6 At [11].
7 At [8].
8 At [12].
9 Page v Wanganui District Council [2014] NZEnvC 58 at [10].
Jurisdiction on appeal
[10] Section 299 of the Act provides that a party to a proceeding before the Environment Court may appeal on a question of law to the High Court against any decision of the Environment Court.
[11] Section 300 of the Act provides that the notice of appeal must specify the decision or report and recommendation, or part of the decision or report and recommendation, appealed against; the error of law alleged by the appellant; the question of law to be resolved; the grounds of appeal with sufficient particularity for the court and other parties to understand them; and the relief sought.
Submissions and discussion
[12] Mr Page advanced a raft of arguments in support of his appeal. He believes passionately that he is the victim of an injustice. Regrettably passion and coherence did not exactly coincide in his notice of appeal or submissions. So profound was the problem that on 20 August 2014, Williams J issued a minute directing counsel for the Council, Mr Drake, to articulate for the Court the issues he apprehended Mr Page wished to advance in his appeal. Further, to identify the issues said to be beyond the scope of the appeal and not properly before the Court. Mr Drake filed submissions on 3 October. Mr Page filed submissions in reply on 28 October. Mr Drake replied on 3 December 2014. Mr Page filed further submissions on 4 December.
[13] I turn now to the three conclusions reached by Judge Dwyer.
[14] The first issue concerned the status of the abatement notices. The Judge was plainly right that those were merely matters of background. The record relating to the issue of the abatement notices is not directly before the Court. It is not possible to form a view in the absence of evidence as to the original validity of the abatement notices. But they are quite irrelevant to the question being considered by Judge Dwyer. That concerned whether the enforcement notices should be cancelled. Enforcement orders issued pursuant to s 314 must stand on their own two feet. They
do not depend upon the existence of a valid prior abatement notice. And they do not exist to enforce that abatement notice. I uphold the Judge’s first conclusion.
[15] The second conclusion reached by Judge Dwyer concerned the search warrant. The Judge was quite correct to say that that was examined in the District Court prosecution of Mr Page. In a judgment delivered on 17 June 2011, Judge Cameron dealt with challenge to evidence attained pursuant to the search warrant. On various bases it was alleged that the search warrant was improperly obtained. That challenge was rejected. The argument was renewed by Mr Page in a further argument before Judge Bouchier on 31 October 2011, when he sought to argue that the search warrant was misleading because it presumed the existence of development work which Mr Page was not doing. Those arguments were comprehensively rejected. Mr Page was convicted. His conviction was upheld in the Court of Appeal. A belated application for cancellation of enforcement orders, long after the convictions have been upheld in the Court of Appeal, is not the place for a further collateral attack on the validity of the search warrant. I uphold the Judge’s second conclusion.
[16] The third issue concerned Mr Page’s attempt to rely on s 319(2) of the Act. The Judge said that Mr Page had misread the provision. He was plainly correct in saying so. Mr Page persisted in misreading it in oral argument before me. Section
319(2) provides:
319 Decision on application
…
(2) Except as provided in subsection (3), the Environment Court must not make an enforcement order under section 314(1)(a)(ii), (b)(ii), (c), (d)(iv), or (da) against a person if—
(a) that person is acting in accordance with—
(i) a rule in a plan; or
(ii) a resource consent; or
(iii) a designation; and
(b) the adverse effects in respect of which the order is sought were expressly recognised by the person who approved the plan, or granted the resource consent, or approved the
designation, at the time of the approval or granting, as the case may be.
…
That provision applies only where the adverse effects concerned were expressly recognised (in effect authorised) by the planning authority at the time a rule, resource consent or designation authorising the activity was approved or granted. The conjunction between paragraph (a) and paragraph (b) was missed entirely by Mr Page. As I said earlier, the fact that earthworks appear to have been a permitted activity does not mean that s 17 of the Act does not apply to Mr Page. He cannot rely on s 319(2) as a means of invalidating the issue of the two enforcement orders where activity otherwise permitted is nonetheless causing significant adverse environmental effects. The consequences of Mr Page’s activities are amply described in the extract from the Court of Appeal’s judgment quoted at [4] above. I therefore uphold the Judge’s third conclusion.
[17] Other arguments advanced by Mr Page, for instance, on the particular intituling of the enforcement orders, his intervening bankruptcy between February
2011 and March 2014, and an award of costs in 2009, cannot amount to errors of law in the judgment under appeal declining to cancel the two enforcement orders.
Result
[18] The appeal is dismissed.
[19] The Council is entitled to costs on a 2B basis. If details cannot be agreed, the
Registrar may fix the final sum.
Stephen Kós J
Solicitor:
P Drake, Wanganui District Council, Wanganui for Respondent
And to:
Mr Page, Appellant
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