Phillips v Wellington Regional Council

[2016] NZHC 1266

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2016-485-12 [2016] NZHC 1266

BETWEEN

WARREN KENNETH PHILLIPS

Appellant

AND

WELLINGTON REGIONAL COUNCIL Respondent

Hearing:	7 June 2016
Appearances:	Mr Phillips appearing in person J M O'Sullivan and A van Echten for the Respondent
Judgment:	13 June 2016

JUDGMENT OF MALLON J

Introduction

[1]      Mr Phillips was convicted of three charges under the Resource Management Act 1991 (RMA) following a defended hearing in the Wellington District Court before  Judge  Thompson.1      The  charges  related  to  work  he  performed  without resource consent at Pauatahanui Stream in October 2014.  He was sentenced to 200 hours community work.2

[2]      Mr Phillips appeals  contending that,  because he was  the occupier at  the relevant time, he did not need resource consent and he was required to carry out

emergency work or he would face liability if someone was harmed.

1      Wellington Regional Council v Stevens CRI-2015-091-711 & 712, DC Wellington, 4 November

2015.

2      Wellington Regional Council v Phillips [2016] NZDC 2817.

PHILLIPS v WELLINGTON REGIONAL COUNCIL [2016] NZHC 1266 [13 June 2016]

Charges3

[3]      The charges against Mr Phillips were that:

(a)      he reclaimed or permitted to be reclaimed the bed of a river, namely an unnamed tributary of the Pauatahanui Stream, in circumstances where that reclamation was not expressly allowed by s 13(1)(e) of the RMA;4

(b)he deposited or permitted to be deposited soil or sediment on the bed of a river, namely an unnamed tributary of the Pauatahanui Stream, in circumstances where that deposition was not expressly allowed by s

13(1)(d) of the RMA;5 and

(c)      he diverted or permitted to be diverted water, namely an unnamed tributary of the Pauatahanui Stream, in circumstances where that diversion was not allowed by s 14(2) of the RMA.6

The facts7

[4]      The property on which the work was carried out belonged to Mr Stevens. The land is part of a rural-residential development on Belmont Road in Pauatahanui, near Porirua.  The land was acquired to provide a home for Mr and Mrs Stevens and to provide office facilities for an organisation of which Mr Stevens is the founder.

[5]      Mr Stevens intended to move a building from another property onto the Belmont Road property.   Mr Phillips had experience in working with heavy machinery and owned a truck and digger.  Mr Phillips machinery was brought onto

the property to assist with this.

3      Mr Stevens, the owner of the land, was also charged.  Mr Stevens was not convicted.  It was found that, although Mr Phillips was acting as an agent for Mr Stevens, Mr Stevens did not know and could not reasonably have been expected to know that Mr Phillips was intending to do the work in question.

4      RMA, ss 13(1)(e), 338(1) and 339 (maximum penalty $300,000 fine or 2 years imprisonment).

5      RMA, ss 13(1)(d), 338(1) and 339 (maximum penalty $300,000 fine or 2 years imprisonment).

6      RMA, ss 14(2)(a), 338(1) and 339 (maximum penalty $300,000 fine or 2 years imprisonment).

7      As found by the District Court Judge.

[6]      The access road to the Belmont Road property was shared with three nearby properties.  Only one of these was occupied.  The occupiers of that property were Mr and Mrs Wharram.   The access road was narrow and had an awkwardly angled bridge.   Mr Stevens considered that widening the inner bank of the access road would give better visibility.  He claimed to have had “near misses” on that road with Mrs Wharram’s horse trailer although this was denied by Mrs Wharram.

[7]      There were also suggestions from the neighbours that there had been talk of widening the corner in order to make it easier to transport the building onto Mr Stevens’ property.  The District Court Judge considered this aspect of the evidence to be inconclusive.

[8]      On 16 October 2014 Mr Phillips unloaded the digger near the right hand bend on the access road and began to dig away the bank on the inner corner of the bend. He then deposited the soil and rock on the other side of the access road into the stream which ran parallel to the access road.  It is unclear how much material was moved, but the end result was that the bends in the stream bed closest to the access road were completely filled in.  Additionally a channel two metres or more to the west  of  the  existing  channel  was  dug  out  and  the  stream  diverted  to  that  new channel, which eventually joined the existing channel.

[9]      Mrs Wharram  saw  Mr  Phillips  carrying  out  this  work.    She  called  Mrs Stevens to complain about it.  The first time Mr and Mrs Stevens were present on the scene  was  the  following  day,  17  October  2014.   A heated  discussion  occurred between Mrs Stevens and Mr Phillips about whether the work was authorised or even desired.  The work stopped at this point.  Mr and Mrs Wharram complained to the Council which led to this prosecution being brought.

Appeal

[10]     Sections 13(1) of the RMA provides that “no person may, in relation to the bed of any …river” carry out certain specified activities “unless expressly allowed” by a national environment standard, a rule in a regional plan or proposed regional plan or a resource consent.  Those specified activities include “deposit any substance in, on, or under the bed” (s 13(1)(d)) and “reclaim or drain the bed” (s 13(1)(e)).

[11]     On the evidence it was clear that Mr Phillips had done both of these things. Mr Phillips has not suggested otherwise.  Nor has there been any suggestion that Mr Phillips activities were expressly allowed by a national environment standard or a rule of regional plan or proposed regional plan.  Nor did Mr Phillips have a resource consent.

[12]     Section 14(2) of the RMA provides that “no person may … divert any of the following, unless the … diverting is allowed by subsection (3): (a) water …”. Subsection 3 then goes on to set out when a person is not prohibited from diverting water.  It is clear on the evidence at the hearing that Mr Phillips diverted water.  He does not suggest otherwise.   Nor has there been any suggestion that any of the exceptions in subsection 3 applied to him.

[13]     Accordingly  the  District  Court  Judge  was  correct  to  conclude  that  what occurred was in breach of sections 13 and 14 of the RMA.   The Judge was also correct to conclude that it did not matter that Mr Phillips may not have intended to commit any offence when he carried out the activities.   That is because s 340(1) provides that, in any prosecution for an offence of contravening sections 13 and 14, it is not necessary to prove that the defendant intended to commit the offence.

[14]     Mr Phillips contention at the District Court hearing and on appeal is that it was necessary to carry out the work because he perceived there to be “an immediate danger to road users because of where the creek was in relation to the road”.  As recorded in the District Court judgment, Mr Phillips was concerned that the stream was undermining the road.  As stated at the appeal hearing, he was concerned that there was no room for a vehicle to pull safely to the side of the road where necessary. He believed this gave rise to a risk to life and/or property.  He considered that, as he was working on the road, he was an “occupier”. He considered that as an occupier he would have liability to anyone who suffered loss of life or property if he did not take action to remedy the problem.

[15]     One provision which could potentially provide a defence to the charges in these circumstances is 341(2)(a) of the RMA.   This section provides a defence to offences under sections 13 and 14 if the defendant proves that the action “was

necessary for the purposes  of saving or protecting life or health,  or  preventing serious damage to property or avoiding an actual or likely adverse effect on the environment”.  The Judge concluded that this defence was not available because “the stream had been in the same or a similar position for some time, and there is no coherent evidence at all that urgent and unconsented work was required to save life

or serious damage.”8

[16]     That conclusion was open to the Judge on the evidence before him.   Mr Phillips had not given evidence to explain why he held this view and there was nothing otherwise to suggest the immediate need for the work Mr Phillips carried out.  In support of his appeal Mr Phillips now seeks to file expert evidence from a consulting engineer.  However this evidence is not fresh or cogent.  The engineer’s view is that it is “readily conceivable” that the “outside sealed surface of the access road would have been under-mined with time”.  However he does not state that such erosion was imminent or likely to occur in the near future.  This evidence does not therefore alter the conclusion that the defence in s 341(2)(a) does not apply.

[17]     At the hearing in the District Court and on appeal Mr Phillips refers to s

330(1)(a) of the RMA.  That section applies “where any public work for which any person has financial responsibility … is, in the opinion of the person … affected by or likely to be affected by” any of the matters set out in subsections (d) to (f).  These subsections are concerned with adverse effects on the environment which require immediate remedial work or a sudden event causing likely loss of life or serious damage to the property.  If these circumstances exist, sections 13 and 14 of the RMA do not apply to any activity undertaken by or on behalf of that person “to remove the cause of, or mitigate any actual or likely adverse effect of, the emergency.”

[18]     Mr Phillips contends in his written submissions on this appeal that he is the “person” referred to in s 330(1)(a).  As the District Court Judge held, this section applies to a “public work” and the work performed on the driveway was a private work, not a public work.  I agree.  The section does not apply to Mr Phillips because

no public work, as defined, is involved.9   Moreover, as the District Court Judge also

8 At [27].

9      Section 2 of the RMA defines “public work” as having the same meaning as that set out in s 2 of the Public Works Act 1981 which is limited to works carried out by the government or a local authority.

held, “there was no evidence at all that access along the road was being imperilled in

any way, let alone in a way that required urgent and unconsented action.”10

[19]     At the appeal hearing, Mr Phillips put forward the alternative contention that the emergency provisions in ss 330 and 341 did not apply to him because he was the occupier.   As such he says he was required to do the work to avoid facing any liability for loss of life or property and he did not need resource consent to do so.  I do not accept this argument.  The provisions of the RMA regulate works of this kind. The RMA required that a resource consent was needed for this kind of work.  Unless Mr Phillips was able to establish that he fell within one of the defences, he was liable for carrying out the work without a resource consent.  He was not able to establish a defence.

[20]     Accordingly the appeal against conviction is dismissed.  Mr Phillips did not raise any issue in respect of his sentence, which was a sentence open to the Judge.

Result

[21]     The appeal is dismissed.

Mallon J

10 At [25].