Vortac New Zealand Limited v The Queen

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA102/2020
[2021] NZCA 200

BETWEEN	VORTAC NEW ZEALAND LIMITED First Appellant GRANT STANLEY NICHOLLS Second Appellant GRAYSON JAMES OTTAWAY Third Appellant
AND	THE QUEEN Respondent

Hearing:	11 November 2020
Court:	Courtney, Woolford and Mander JJ
Counsel:	M E Casey QC and A J Davidson for Appellants M J Lillico and Z A Fuhr for Respondent
Judgment:	19 May 2021 at 3 pm

JUDGMENT OF THE COURT

AThe appeals against conviction are dismissed.
BMr Ottaway’s appeal against sentence on charge one is allowed. The sentence is quashed and substituted with a fine of $13,500. His sentence appeal on charge three is allowed. The sentence is quashed and substituted with a fine of $11,250. The total fine is $24,750.
C The sentence appeals by Vortac and Mr Nicholls are dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Courtney J)

In October 2019, Vortac New Zealand Ltd (Vortac), its director, Mr Nicholls, and its manager, Mr Ottaway, stood trial in the District Court at Tauranga before Judge Kirkpatrick and a jury on three charges brought under the Resource Management Act 1991 (RMA). The charges arose from the construction of a wall undertaken on Vortac’s property in Te Puke without resource consent and the continuation of work in the face of an abatement notice. The central issue at trial was whether the property lay within a floodable area for the purposes of r 8 of the Western Bay of Plenty District Plan. The property was shown as such in the relevant Planning Map and it did experience inundation. But the defence contended that this was the result of the Western Bay of Plenty District Council’s (the Council) unlawful discharge of stormwater and therefore the property ought not to be regarded as being within a floodable area for the purposes of the District Plan.
Vortac and Mr Nicholls were found guilty on each of the charges and Mr Ottaway was found guilty on the two of the charges. All three appeal their convictions. The notice of appeal identified seven grounds of appeal relating to the convictions. As argued, however, the essential complaint is that the Judge wrongly refused to allow the appellants to address the Council’s own contribution to the state of the drainage along the property’s western boundary as part of their defence. The appellants say that this resulted in a miscarriage of justice. To succeed in their appeal they need to show a real risk that the outcome of the trial was affected.[1]
[1]Criminal Procedure Act 2011, s 232(4)(a).
Vortac and Mr Nicholls were each fined a total of $33,750 and Mr Ottoway $27,000.[2] All three appeal their sentences on the grounds that:
(a)in relation to Mr Ottaway, there was an arithmetical error; and
(b)the Judge wrongly assessed culpability.[3]
[2]R v Vortac New Zealand Ltd [2020] NZDC 1431 [Sentencing notes].
[3]Although this ground was also described as failing to take mitigating factors into account, in argument it was directed towards the assessment of culpability.
The Judge also issued an enforcement order against all defendants to remove the retaining wall and earthworks on the property. That order is appealed on the grounds that:
(a)the enforcement order required work in excess of what is required to ensure compliance with the District Plan and/or to mitigate any effects of the offences; and
(b)the Judge failed to consider or allow for the alternative of an application for resource consent being made to allow the structure to remain in place.

Factual background

Hookey Drive was formed in the 1970s. It traverses a natural gully that runs south-west to north-east. Some years ago the Council built a dam across the valley, this being the raised section of land on which Hookey Drive is situated. To provide for the passage of stormwater from the upper catchment to the lower section of the valley the Council installed a culvert pipe under the road. Stormwater captured from within the upstream catchment is discharged into a concentrated flow through the culvert and onto the land on the downstream side of the culvert. That land, originally owned by the Council, has since passed into private ownership. It was referred to at trial as the Hansen land.
An easement granted in 1962 (S242897) covers a three-metre-wide strip along and inside the boundaries of the Hansen land and an adjoining property (25 Hastings Street) and allows the conveyance of stormwater and surface water. It is the continuation of a drainage easement along the original valley floor and permits the Council to drain stormwater and surface water along the easement strip by open drain or pipes or conduits.
The property at 29 Hookey Drive slopes east to west down towards the valley floor and adjoins the Hansen land. At some point a retaining wall and raised garden were built on the Hansen land across the area of the easement a short distance below the culvert.[4] This prevented the flow of water along the easement and resulted in water discharging from the culvert being diverted onto 29 Hookey Drive.
[4]The raised garden has since been removed, apparently in about 2017 at the direction of the Council.
Vortac purchased the property in early 2015 with the intention of subdividing and developing it. It claims that the unlawful diversion of stormwater caused scouring and altered the contours of the land so that the Vortac property has now become the valley floor whereas the valley floor previously ran through the easement strip. The Council does not accept that; it maintains that water would have flowed onto 29 Hookey Drive regardless.
The appellants told the Council that the drain should either be piped or shifted onto a neighbouring property (37 Hookey Drive). The Council declined to do so because of the risk of causing further instability to the bank and scouring of the area.
In May 2015, the appellants told the Council that they intended to construct a retaining wall along the western boundary of 29 Hookey Drive to level the site and develop dwelling houses on it. The Council responded that the property was prone to flooding and if the open drain portion of the property was filled it would force the stormwater onto surrounding properties. Although the Council would not move on the issue of piping or relocation of the drain it was open to considering any proposal by the appellants to mitigate the effects of the drain on the property.
In July 2015 however, the appellants commissioned a contractor to build a wall on the western boundary. There were complaints from neighbours. The Council served an abatement notice requiring construction of the wall to cease on the ground that it was a restricted discretionary activity under the District Plan for which there was no resource consent. The contractor ceased work. In late August, the Council became aware that more work had been done on the wall which had the effect of altering the natural flow of stormwater in the gully. Further work discovered in late September included filling in the drain with earth. Fresh abatement notices were served.
Charges were laid in October 2015. The Council claimed that the work had raised the level of the land and blocked the natural flow path causing stormwater to gather on the neighbouring properties, reduced storage capacity, caused soil instability and erosion and constricted the flow path on the western side of Vortac’s property which exacerbates erosion and flooding downstream.

The District Plan

29 Hookey Drive lies in an area designated as a flood hazard area in the District Plan. This area is subject to the Natural Hazards section (Section 8) of the District Plan, which covers natural hazards, including land instability and flooding. The explanatory statement provides:
Heavy rain is a common feature of the Bay of Plenty region and this may increase with global climate change. Low-lying areas, especially those in proximity to watercourses are at risk from inundation, scour and sedimentation. Within established urban areas land known to be susceptible to flooding exists in parts of … Te Puke … Again, such land has been identified on the Planning Maps.
Land identified on the Planning Maps as being at risk from the foregoing hazards is subject to various controls on development either through District Plan rules or other methods outside the District Plan.
(Emphasis added.)
Rule 8.3 categorises activities that are “located within Natural Hazard Features identified on the District Planning Maps” as permitted, controlled, restricted discretionary, discretionary, non-complying or prohibited.
Rule 8.3.1 provided for the following as permitted activities in a floodable area:
…
(c)       Buildings/Structures where evidence establishes:
(i)A building/structure[5] will be located clear of the Natural Hazard (floodable area) irrespective of the extent of the Natural Hazard (floodable area) shown by the Planning Maps; or[6]
(ii) A building/structure will not be affected by the Natural Hazard (floodable area).
[5]The expression “building/structure” is defined in the District Plan as “any building/structure, or part of a building/structure, and in addition to its ordinary and usual meaning shall include the following:
(a)     Any retaining wall or breastwork exceeding 1.5m in wall height (whether above or below ground level);
(b)    Any fence or wall exceeding 2m in height;”
…
“Wall” is defined as “vertical structures made of wood, steel, brick or stone or like material which are used to enclose or screen an area”.
[6]The evidence was that the terms “flood hazard area” and “floodable area” are interchangeable.
Rule 8.3.3 includes as restricted discretionary activities in floodable areas:
…
(b) Floodable Areas
(i) Building/Structures not within an Approved Building Site – Natural Hazards
(ii) Earthworks over 5m³
(iii)Closed board fences, retaining walls, raised gardens, concrete and block walls[7]
[7]The terms “retaining wall” and “closed board fence” are not defined in the District Plan.
The phrase “floodable area” is not defined in the District Plan.
There was evidence that the area encompassing 29 Hookey Drive had been included as part of the floodable area in prior District Plans for at least 30 years.

Conviction appeal

The charges against the appellants were:
(a)charge 1: using land in a manner that contravened a district rule by constructing a retaining wall in a floodable area without resource consent;[8]
(b)charge 2: using land in a manner that contravened a district rule by carrying out earthworks over five m³ in a floodable area without resource consent;[9] and
(c)charge 3: contravening an abatement notice.[10]

The pre-trial application

[8]Resource Management Act 1991 [RMA], ss 338(1)(a) and 9(3).

[9]Sections 338(1)(a) and 9(3).

[10]Section s 338(1)(c).

The case did not come to trial until 2019, mainly as a result of pre-trial applications, including applications to have the charges dismissed under s 147 of the Criminal Procedure Act 2011. One of these applications is relevant for present purposes because the Crown says that the appellants’ position at trial and in this appeal effectively seeks to rerun the arguments already rejected in this application.[11] However, the appellants say that this appeal is the only means by which the decision can be impugned because they were refused leave to appeal the decision for lack of jurisdiction in this Court.[12]
[11]R v Vortac New Zealand Ltd [2019] NZDC 5861 [Pre-trial ruling].
[12]Vortac New Zealand Ltd v R [2019] NZCA 418.
The appellants had argued, first, that the Council had no consent for its stormwater discharges and had failed to contain its stormwater discharge within the easement area and therefore had no authority to lay charges for alleged breaches of the District Plan. The Judge considered that:[13]
[Whatever may be the issues arising from what the District Council has done or not done in obtaining or maintaining any necessary resource consents for its stormwater drainage network, none of those matters could constitute a defence to the charges that have been brought against these defendants or is otherwise a matter of justification or excuse in relation to such charges. A defendant cannot raise another person’s wrongdoing of this kind as a defence to a charge they face.
[13]Pre-trial ruling, above n 11, at [20].
The second argument was that the retaining wall was not constructed in a floodable area so that the planning constraints imposed by r 8.3.3(b) did not apply and, for the same reasons, the abatement notices were not valid. This argument rested on the assertion that the Planning Maps referred to in the explanatory statement to r 8 were not sufficiently certain to show the basis on which the property was identified as a flood hazard area. The Judge rejected this argument also. He noted that rules in a District Plan have the force and effect of regulations[14] and that a defendant could not challenge the validity of a rule in the context of a prosecution.[15] He concluded that:
[27] … whether the western side of the property is subject to the “flood hazard” shown on the planning maps and therefore is a “floodable area” for the purposes of rule 8.3.3(b) is a matter of law. The jury would be subject to direction on the law in respect of those matters.
…
[30] Even if the explanatory statement were to be given the effect for which counsel contends, it leaves open the possibility that there are some areas where there is good information and it is appropriate to control development. The question would then be whether the Crown could lead evidence to show that this portion of the subject property is in fact a floodable area … The assessment of such evidence is obviously a matter for the jury.

Trial

[14]At [26], referring to s 76(2) of the RMA.

[15]At [26], citing Smith v Auckland City Council [1996] 1 NZLR 634 (HC).

As noted, the central issue at trial was whether 29 Hookey Drive was located in a floodable area for the purposes of r 8 of the District Plan.[16] Defence counsel made an opening statement, signalling the defendants’ position that it was for the Council to prove, by reference to a site-specific assessment, that 29 Hookey Drive was in a floodable area and that it was the Council’s own actions that had caused or contributed to inundation of 29 Hookey Drive.
[16]There were other issues raised at trial but they are not relevant in the appeal.
On the second day of trial the Judge refused to allow defence counsel to adduce (through a Crown witness) a copy of the easement attaching to the title for 25 Hastings Street.[17] The easement was said to be relevant to explain why the location of the flow of stormwater on Vortac’s property was challenged and to show that the Council was required to contain the flow of stormwater within the bounds of the easement so that the extension of the flow onto the Vortac property was unlawful. The Judge did not accept that the easement had any relevance because the only servient tenement under the easement was the property at 25 Hastings Street; Vortac had no interest in the easement and it was therefore not relevant to the charges before the Court.[18]
[17]R v Vortac New Zealand Ltd [2019] NZDC 21106 (Ruling 1 of Judge Kirkpatrick).
[18]At [5]–[6].
The next day, the Judge refused to allow cross-examination of a Crown witness about the Council’s authority for discharging stormwater through the culvert under Hookey Drive. The Crown had objected to the line of questioning on the ground that the charges did not depend on evidence about that but instead turned on whether the work that had been done was in a floodable area. Defence counsel had argued that it was relevant in the context of the charges and fairness required the jury to be aware of the reason Vortac had complained to both the District Council and the Regional Council about the flow of water. In his written ruling the Judge said:[19]
[4] It is beyond doubt that the identification of a floodable area on the subject property at 29 Hookey Drive is at the heart of these charges because it is central to the relevant rule which the prosecutors [say] has been contravened but I accept Crown counsel’s submission that the acts or omissions of the District Council do not form part of those elements.

The Judge added:

[6] In the course of argument I indicated to counsel my current thoughts in terms of what I would say to the jury about this in summing up. The most pertinent part of that is that I do not understand there to be a basis on which these defendants can defend these charges by pointing to some wrongful or unauthorised action by someone else including the District Council in the absence of some course of justice allegation and no allegation of that kind has been raised in this case.
[19]R v Vortac New Zealand Ltd [2019] NZDC 21109 (Ruling 2 of Judge Kirkpatrick).

In closing, defence counsel made the following submission on the “floodable area” and unlawful diversion of the stormwater caused by the raised garden:
… it’s not the defendants who are required to prove anything, they’re not required to prove for the purposes of the charges that a site-specific assessment had been done. It is for the Crown, prosecuting on behalf of the Council, to prove that fact beyond reasonable doubt, and we know that a site-specific assessment was not carried out at the time the charges were laid. Assumptions based on the mapping, in my submission, without carrying out a site-specific assessment, is something that ought to have been done before the Crown and the Council, the Council laid the charges. We know that Douglas St George, from his evidence, that water travelling down their gully, in his words, accelerated over time and that was due to the upstream subdivisions that I referred him to in his evidence.
…
I suggest that you can reject the evidence of Ms Thiel-Lardon who, in my submission, was clearly one-sided about the way she gave her evidence. … She wouldn’t accept that she had seen the concrete retaining wall at 37 Hookey Drive only 10 metres from the culvert where the water was thundering out, and quite clearly there was a raised garden in that area, wasn’t prepared to accept that either. Nobody seemed to know why it was that the garden was moved, raised garden and retaining wall was moved and who removed it. I suggest the reason it was removed was because the water was illegally diverting the water out of the culvert from 37 Hookey Drive onto 29 Hookey Drive, just as Vortac had complained to the Western Bay of Plenty District Council before the charges were laid. …
In summing up, the Judge referred to the defence contention that the Council had allowed stormwater to be unlawfully diverted but directed the jury that it was not relevant:
[24]     Much has been made of the fact that there are not any relevant definitions in the District Plan or the RMA, so the meaning of the words “retaining wall”, “closed board fence” and “floodable area” there is no special meaning. Those are ordinary words and you are entitled to make of them what you will, based on the evidence. It is for you to consider that evidence and determine for yourselves on the facts whether the work was a retaining wall or a closed board fence and whether it was done in a floodable area.
…
[27]     In relation to whether the work was done in a floodable area, you have heard the questions and answers relating to the culvert under Hookey Drive and upstream development. Whether the District Council or the Regional Council have done what they should about stormwater management and about the concrete wall and raised garden on the neighbour’s property. The clear suggestion, and it is not surprising, is that but for the increased flows and diversions caused by other people this property would not be in a floodable area.
[28]     The actions of other persons or the [Council] are not the subject of this trial. It is generally, and subject to quite limited exceptions none of which apply in this case, not a defence to a charge for a defendant to say that someone else did something wrong so that is why the defendant did what they are charged with.
[29]     In very simple terms, two wrongs don’t make a right. There are lawful ways to deal with other peoples’ unlawful actions. No one should take the law into their own hands. Everyone must obey the law and ignorance of the law is no excuse. These are basic legal principles that everyone is assumed to know.
[30]     You have the District Plan map and previous planning map showing the flood hazard overlay. The current map is a rule in the District Plan. In terms of the charges this means that unconsented works of the kind that are within rule 8.3.3, the main rule in this case that you have been taken to, in an area shown as “flood hazard” contravene that rule about the flood hazard.
[31]     There is an explanatory statement to s 8 of the District Plan dealing with natural hazards and both counsel have addressed that with you. That explanatory statement is not a rule. It is what it says it is, it’s an explanatory statement. It suggests that the matter is broadbrush and that is sometimes true of maps. It goes on to say that a more detailed study may be needed of specific areas to eliminate land from the identified potential hazard. It is a matter for you to ask yourselves, whether that indicates that such a detailed study should occur before or after work is done, if the rules require a consent to be obtained because the map shows that there is a hazard.
[32]     You have the evidence of Mr St George and Mr Scholes, the neighbours who have lived near the property for a number of years, about their experience of stormwater on the property. You have the evidence of Mr Davaana and Ms Thiel-Lardon who are engineers who study stormwater and flooding. You can see the lie of the land from the photographs that you have been shown.
[33]     So, even if the District Plan were inaccurate, and you can make an assessment of that, you have the evidence on which to determine whether the relevant part of the property is in a floodable area. That is a matter for you on the evidence that you have heard.

The Judge provided a question trail with his summing up. It contained the following question:
Are you sure that the land where the retaining wall or closed board fence has been constructed is in a floodable area?
There was no direction in the question trail as to what floodable area meant.

Appeal

The appellants say that the Judge wrongly prevented the jury from considering their assertion that the Council’s unlawful discharge of stormwater had caused the inundation of 29 Hookey Drive.
Mr Casey QC, for the appellants, explained that the argument he had sought to advance at trial was not (as the Judge perceived) that the unlawfulness of the Council was a defence to the charges. Rather, the argument was that whether the land is in a floodable area requires proof, to the criminal standard, of what the position would have been but for the Council’s unlawful conduct. On that approach, identifying the floodable area would have proceeded on the basis that the flow of stormwater from the culvert onto Vortac’s land would have been avoided or substantially reduced. The appellants’ liability would be assessed on the basis of the unmodified environment, in which (they say) 29 Hookey Drive would not have been in a floodable area. The Judge’s rulings and jury directions did not accurately reflect this argument and meant that this aspect of the defence case was not considered by the jury.
Mr Casey relied, by analogy, on the “existing environment” principle articulated in cases involving resource consent applications. On this approach, consideration of a resource consent application proceeds on the basis of the environment as it does or might in the future lawfully exist.[20] The existing environment principle in the resource consent context requires the Council, when deciding whether to grant consent, to ascertain the existing environmental base line against which the effect of the proposed activity can be assessed. In doing so, unlawful modification of the land is excluded from consideration. The principle was articulated as follows in Queensland Lakes District Council v Hawthorn Estate Ltd:[21]
In our view, the word “environment” embraces the future state of the environment as it might be modified by the utilisation of rights to carry out permitted activity under a district plan. It also includes the environment as it might be modified by the implementation of resource consents which have been granted at the time a particular application is considered, where it appears likely that those resource consents will be implemented. We think [the Judge] erred when he suggested that the effects of resource consents that might in future be made should be brought to account in considering the likely future state of the environment. We think the legitimate considerations should be limited to those we have just expressed.
[20]Queenstown Lakes District Council v Hawthorn Estate Ltd (2006) 12 ELRNZ 299 (CA) at [84]; and Oman Holdings Ltd v Whangarei District Council [2012] NZEnvC 137 at [9]–[11].
[21]Queensland Lakes District Council v Hawthorn Estate Ltd, above n 20, at [84].
Mr Casey says that this principle can be applied to the present situation. He relies on the general principle that a person who has acted improperly should not gain advantage from that action.
It is evident, however, that there is a significant distinction between the resource consent context and the enforcement context with which we are concerned. The former is inherently forward looking; the consent authority is considering the actual and potential effects of the proposed activity on the environment.[22] In comparison, the enforcement context is retrospective, concerned with whether, as a matter of fact, a state of affairs existed at the relevant time. It follows that the reasons why the property was or became prone to flooding cannot be relevant to the question whether, as a matter of fact, the retaining wall was constructed in a floodable area.
[22]RMA, s 104(1)(a).
Moreover, the purpose of enforcement provisions is, broadly, to prevent unacceptable environmental harm as that is defined in the legislation.[23] This underlying purpose is very different from the purpose of the resource consent scheme, namely to control the use and development of land to achieve the RMA’s goal of promoting sustainable management.[24] Here, r 8.3.3(b) is directed towards minimising the risk of flooding in the district. The provision would be rendered obsolete if the actual state of the land in question could be set aside when assessing whether it was a “floodable area”, so that an activity that would significantly exacerbate that risk could proceed without consent.
[23]Ceri Warnock and Karenza de Silva “Compliance and Enforcement” in Peter Salmon and David Grinlinton (eds) Environmental Law in New Zealand (Thomson Reuters, Wellington, 2018) at [19.2.6].
[24]RMA, s 5.
Nor do we accept the appellants’ argument that the circumstances of the case justify a collateral challenge to the validity of the District Plan. As a general principle, a defendant charged with a breach of subordinate legislation is entitled to resist the charge by challenging the validity of the subject legislation.[25] But Parliament may signal, through the relevant statutory context, that such challenge is precluded.[26] Relevantly in this case, s 83 of the RMA provides that:
A policy statement or plan that is held out by a local authority as being operative shall be deemed to have been prepared and approved in accordance with Schedule 1 and shall not be challenged except by an application for an enforcement order under section 316(3).
[25]Brady v Northland Regional Council [2008] NZAR 505 (HC) at [45], citing Michael Taggart “Rival Theories of Invalidity in Administrative Law: Some Practical and Theoretical Consequences” in Michael Taggart (ed) Judicial Review of Administrative Action in the 1980s (Oxford University Press, 1986) at 86. See also Harwood v Thames-Coromandel District Council [2008] NZAR 518 (HC) at [20].
[26]R v Wicks [1998] AC 92 (HL) and Boddington v British Transport Police [1999] 2 AC 143 (HL), discussed in Harwood v Thames Coromandel District Council, above n 25, at [21]–[25].
In resisting the appellants’ argument that they are entitled to advance a collateral challenge, the Crown relied on Smith v Auckland City Council as authority that a collateral challenge to a District Plan is not permitted in the context of enforcement proceedings under the RMA. In Smith the appellant was convicted of cutting down a tree designated as a protected tree under the District Plan. He argued that the designation was wrong, having been made without consultation with tangata whenua. The argument was rejected in the High Court; Fisher J noted that only two matters needed to be proved, namely use of any land by the defendant and contravention of a rule in the District Plan or proposed District Plan.[27] As to the allegedly invalid listing of the tree the Judge considered that:[28]
Section 9 picks up the matter at a point which presupposes the plan’s valid existence. That I think is made plain by s 76(2) which, as I said, provides that the rules in the plan are to have the force and effect of regulations. Also relevant is s 83 [which provides that a plan may not be challenged except by application for an enforcement order] …
This was not an application for an enforcement order. Therefore the plan could not be challenged in these proceedings.
[27]Smith v Auckland City Council, above n 15, at 638.
[28]At 640.
The High Court Judge’s reasoning was upheld on appeal:[29]
Evidence of [the views of tangata whenua] should properly be taken into account when a district plan is prepared or reviewed. However, in agreement with the High Court, we consider that s 9 presupposes the valid existence of a plan or proposed plan. Section 76(2) and s 83 reinforce that conclusion. By way of answer to a prosecution for injuring a scheduled tree a defendant cannot claim that the listing process reached the wrong conclusion.
[29]Smith v Auckland City Council [1996] NZRMA 276 (CA) at 278.
The appellants do not accept that Smith precludes a challenge to the District Plan. They rely on Clifford J’s (obiter) observations in Bryant Holdings v Marlborough District Council which they say undermine either the reasoning or outcome of Smith.[30] In Bryant Holdings the appellant was convicted of (among other things) failing to notify the council of his intention to build a stop-bank. The appellant’s land lay within a riparian management zone. The District Plan permitted the damning or diversion of water for flood protection purposes provided the Council was notified in writing 10 days before and the work did not adversely affect other land. The appellant failed to give the requisite notice and was prosecuted. He argued that the rule requiring notification was ultra vires. The District Court Judge treated Smith as authority for the proposition that the RMA discloses a Parliamentary intention to exclude challenges to rules in district plans. Clifford J acknowledged that there was a basis for this view, though added that:[31]
In many of the cases I have referred to there are repeated references to the significance under the rule of law of the availability of collateral challenges in criminal prosecutions under delegated legislation. I am therefore more than a little hesitant to conclude that Smith is, as apparently accepted by the Judge, authority for the proposition that there will be no circumstances in which a collateral challenge will be available to a prosecution under the RMA.
[30]Bryant Holdings v Marlborough District Council [2008] NZRMA 485 (HC).
[31]At [62].
Mr Casey submitted that the present case differs from Smith and that, in the circumstances of this case, s 83 does not have the effect of precluding a collateral challenge. He argued that the purpose of s 83 is to protect against procedural irregularities, not against the Council’s own unlawful actions. Here, the fact that the land lies within a floodable area was not due to an error or procedural irregularity but to the Council’s unlawful conduct.
In our view s 83 precludes challenge to the validity of the District Plan’s inclusion of 29 Hookey Drive in the floodable area in the context of a prosecution. The circumstances of this case may helpfully be compared with those in Wylie v Clutha District Council.[32] That case concerned land shown in a district plan as being within a Coastal Resource Area (CRA). The Council accepted that the land should not have been included in the CRA — it had been included as a result of a consultant’s error. Nevertheless, an application by the landowner for declarations as to the planning status of the land failed on the ground that the district plan could only be challenged in accordance with s 83. John Hansen J accepted that “[w]hile the line may have been drawn in error, it was done in the context of submissions made pursuant to clause 6 of the First Schedule”.[33]
[32]Wylie v Clutha District Council HC Dunedin CIV-2004-485-1839, 29 September 2005.
[33]At [34].
The same can be said in the present case. Even assuming that 29 Hookey Drive suffered inundation as a consequence of wrongdoing by the Council, its inclusion in the floodable area was still the product of the Schedule 1 process and can only be challenged on the narrow grounds permitted by s 83.
Nor do we accept the submission that this is a case of allowing a government authority to shelter from its own unlawfulness while bringing the force of the criminal law against those suffering the effects of the unlawfulness. The wrongdoing alleged in this case falls well short of the kind of conduct by a prosecuting authority that would justify quashing a conviction.[34] The statutory scheme is directed towards the protection of the natural environment. The offences created by s 338(1) are strict liability offences, subject only to the statutory defences provided for. Allowing, in the context of a prosecution, an enquiry into how land came to be in a state that led to it being designated a floodable area, would cut across this scheme.
[34]Wilson v R [2015] NZSC 189, [2016] 1 NZLR 705.
The Judge was correct to conclude that the alleged unlawful discharge by the Council was irrelevant to the question of the appellants’ liability.

Sentence appeal

Sentencing in the Environment Court

At the sentencing hearing on 22 January 2020 the appellants applied for a disputed facts hearing on the issue of whether the Council had authority to discharge stormwater to the extent that it was being discharged through the culvert and on to Vortac’s land.[35] The Judge refused the application.[36] In doing so he expressed concern that if the defendants had been motivated simply to mitigate or protect themselves from the Council’s acts or omissions, the construction of the wall went well beyond such purpose.[37] Nevertheless, he indicated that he would hear submissions on that aspect for the purposes of considering factors that might reduce the starting point.[38]
[35]Sentencing Act 2002, s 24.
[36]R v Vortac New Zealand Ltd [2020] NZDC 929 [Disputed facts ruling]. The Judge also heard, and refused, applications for discharge without conviction: Sentencing notes, above n 2, at [19]–[38].
[37]Disputed facts ruling, above n 36, at [10].
[38]At [12].
The Judge dealt with the essential complaint that the Council had wrongfully allowed stormwater to be diverted onto the Vortac land at the outset of his sentencing. He accepted the Crown’s submission that frustration with the Council, whether legitimate or not, did not justify carrying out unlawful self help works. The Judge noted that:[39]
[74] … The defendants’ allegations of illegal action on the part of the Council are based on the claim that the relevant consent to the diversion and discharge of stormwater has lapsed or is insufficient for the volumes of stormwater now being discharged or both. The fact that this site forms part of the gully through which water has flowed for many years means that even if the Council does not have some necessary consent, water will still flow through the gully and therefore the controls on erecting structures in the floodable area serve the purpose of sustainable management of resources under the RMA.
[75] I also accept the submission of counsel for the Crown that the argument that the defendants’ actions were done chiefly to protect their land from unlawful flows of water was not a proposition advanced at trial. In any event, as I put to counsel for the defendants, the location of the drain on the first defendant’s property means that any floodwater would necessarily cover part of that property. The defendants’ argument that the Council and the neighbour were obliged to contain the flow of water within the boundaries of the easement on the neighbouring property was considered and rejected by me in my pre-trial ruling. It was also rejected by the Environment Court in separate enforcement proceedings brought by the company against the District Council.[40] It is not a relevant consideration.
(Footnotes omitted.)
[39]Sentencing notes, above n 2.
[40]Vortac NZ Ltd v Western Bay of Plenty District Council [2019] NZEnvC 138. This was an application by Vortac for an interim order requiring the Council to use the easement. The Environment Court refused the application. One of the points that it made was that any such order would provide no advantage to Vortac in relation to the development of Vortac’s land because any such order would be subject to a condition that the parties not do further work without the consent of the Court: at [31]. It is however evident from the Environment Court’s decision that the supporting evidence and argument advanced on Vortac’s behalf was rather confused. It is doubtful that the decision ought to have had any weight in the sentencing context.
The Judge characterised the offending as moderately serious, with no mitigating features apart from the lack of previous convictions.[41] He then turned to the starting point, taking as a comparable case Banora v Auckland Council.[42] That case involved the construction of a retaining wall without resource consent in contravention of the District Plan and contravention of an abatement notice. Mr Banora had argued that the work had been undertaken for the safety of his property and his tenants and neighbours. He had complained about the Council’s various actions including the allegedly wrongful discharge of sewage and wastewater onto his land. Whilst accepting that Mr Banora genuinely believed he had a good reason for doing the work,[43] Gault J took a global starting point of $80,000, which he adjusted to $60,000 for totality, before allowing further deductions for good character and the guilty pleas.[44]
[41]Sentencing notes, above n 2, at [77].
[42]Banora v Auckland Council [2019] NZHC 2545.
[43]At [50].
[44]At [110]–[111].
In this case, the Judge treated Banora as comparable but acknowledged that there had been four charges in that case and only three in the present case.[45] He approached the starting point on the basis that:
[79] On the facts, the main offending was the construction of the retaining wall in a floodable area. Even on the basis of their own excuse that they built the wall to keep stormwater off the property, the defendants implicitly acknowledge that the effect of the wall was to alter the existing drainage in the area, without any apparent consideration of the position of their neighbours or the drainage network generally and without making any real attempt to resolve the issues prior to undertaking the work. While the earthworks in the same area (including the use of cement or concrete bags to block or fill the drain) could potentially have been equally serious, the limited extent of such earthworks means that the level of fine for that should be less than for the structure.
[80] The breach of the abatement notice is a serious offence in itself: the purpose of such notices is to ensure prompt compliance with the provisions of the RMA and plans made under it, thus minimising adverse environmental effects. There is a full right of appeal to the Environment Court available to any person served with such a notice, but there was no appeal in this case. Further work was done, resulting in these charges. As I noted to counsel, such offending may be considered as being against the administration of the RMA, which reinforces its seriousness.
[45]Sentencing notes, above n 2, at [78].
The Judge took a starting point of $30,000 for the first charge (construction of the retaining wall), $20,000 for the second charge (earthworks) and $25,000 for the third (breach of the abatement notice).[46] He accepted that Mr Nicholls should be treated as Vortac’s alter-ego and accordingly apportioned a total fine of $75,000 equally between them.[47]
[46]At [81].
[47]At [82].
As to Mr Ottaway, the Judge noted that he had not been convicted on the second charge but did not accept that Mr Ottaway was simply a messenger passing on instructions from Vortac/Mr Nicholls. To ensure consistency he imposed a fine of $30,000.[48] The Judge then reduced each fine by 10 per cent to reflect the lack of previous convictions.[49]
[48]At [83].
[49]At [84].
The Crown had applied for an enforcement order, seeking the Court’s consent under s 315. There was no opposition to that application and the Judge accordingly made the order requiring that the wall and earthworks be removed and the land made good.[50]

First ground of appeal: arithmetical error in Mr Ottaway’s fine

[50]At [87].

The appellants say, first, that there was an arithmetical error in respect of Mr Ottaway’s fine that resulted in the fine being set at $27,000 instead of $24,750. This is based on the fact that the Judge expressed an intention to take the same starting point for Mr Ottaway’s fine on the first and third charges as the starting points used for Vortac/Mr Nicholls.[51] Mr Casey argued that the Judge’s adjustment “for the sake of overall consistency” with Vortac/Mr Nicholls meant that he intended to halve them. That approach would have resulted in Mr Ottaway being fined $15,000 on the first charge and $12,500 on the third — $27,500 in total. Instead, the Judge recorded the starting point for Mr Ottaway at $30,000. When the 10 per cent reduction for lack of previous convictions was applied this resulted in Mr Ottaway being fined $27,000 instead of $24,750.
[51]At [83].
The Crown did not resist that analysis but maintained that the focus should be on the end result and that the fine ultimately imposed was not manifestly excessive.
As this Court has previously said, where a Judge makes an arithmetical error that results in a higher sentence than the Judge intended, the error ought to be corrected, even if the end sentence was within the available range.[52] We consider that there is an obvious arithmetical error which ought to be corrected to give effect to the Judge’s clear intention that Mr Ottaway’s starting point would be the same as that taken for each of Mr Nicholls and Vortac.

Second ground of appeal: assessment of culpability

[52]Smith v R [2020] NZCA 586 at [25]; and Ferris-Bromley v R [2017] NZCA 115 at [15(a)].

The appellants submit that the Judge’s assessment of culpability was wrong as a result of him failing to take into account the alleged unlawful discharge of stormwater by the Council. In particular, Mr Casey was critical of the Judge’s comment that “[t]wo wrongs do not make a right”,[53] which, he submitted, failed properly to recognise the requirement to take into account the degree of culpability of an offender at sentencing. The appellants argue that but for the Council’s unlawful actions, no resource consent would have been needed and no offence would have occurred.
[53]Sentencing notes, above n 2, at [54].
Mr Casey invited us to treat the circumstances of the case as comparable to those in Waitakere City Council v Hertzke.[54] There the defendant was convicted of clearing native vegetation without consent. The fact that another department of the prosecuting Council had approved plans which showed the bush clearance was treated as a relevant factor on sentencing. We do not accept that this case is particularly helpful. There was no room for confusion on the part of the appellants as to what was permitted. It had been made abundantly clear to them that, regardless of their views about the easement in the stormwater drain, they would not be permitted to build the wall where they proposed. We agree with Mr Lillico, for the respondent, that the case more closely resembles Banora, in which Gault J expressly rejected as a basis for reducing culpability a belief that the Council itself was acting unreasonably.[55] In all the circumstances of the case the Judge cannot be said to have erred in characterising the offending as moderately serious. This ground of appeal therefore fails.

Enforcement order

[54]Waitakere City Council v Hertzke [1997] NZRMA 222 (CA).

[55]Banora v Auckland Council, above n 42, at [50].

Notwithstanding that the enforcement order was not opposed in the District Court, the appellants now say that the Judge ought to have left open other options short of removal of the wall. In particular, they say that an application for resource consent remains a viable option and seek to have the enforcement order amended to allow that to occur.
The Crown says that resource consent is very unlikely to be granted, given that the wall was not designed for a floodable area and that it has already had an observable environmental impact on neighbouring properties. The difficulty with this ground of appeal is that the appellants do no more than assert the possibility that resource consent would be granted. There is no evidential basis on which to conclude that a resource consent application is viable. In all the circumstances of the case, the evidence strongly suggests that it is not. This ground of appeal also fails.

Result

The appeals against conviction are dismissed.
Mr Ottaway’s appeal against sentence on charge one is allowed. The sentence is quashed and substituted with a fine of $13,500. His sentence appeal on charge three is allowed. The sentence is quashed and substituted with a fine of $11,250. The total fine is $24,750.
The sentence appeals by Vortac and Mr Nicholls are dismissed.

Solicitors:
Rejthar Stuart Law, Tauranga for Appellants
Crown Law Office, Wellington for Respondent

[2021] NZCA 200

19 May 2021 at 3 pm