West Coast Regional Council v Stepkowski HC Wellington Ap33/01

[2001] NZHC 893

In the High Court of New Zealand
Wellington Registry AP33/01

Between WEST COAST REGIONAL COUNCIL
Appellant

And S C AND D P STEPKOWSKI, S H AND L S STEPKOWSKI AND D AND C S BANKS
Respondents

Hearing: 2 July 2001

Appearances: E Chapman for Appellant
D J Taffs for S C and D P Stepkowski and S H and L S Stepkowski
D & C S Banks in Person

Judgment: 21 September 2001

RESERVED JUDGMENT OF WILLIAM YOUNG J

Solicitors:
Duncan Cotterill, Christchurch for Appellant
D J Taffs, Westport for Respondents

Introduction

[1] This is an appeal by the West Coast Regional Council from a decision of the Environment Court delivered on 20 December 2000.

[2] In that decision, the Environment Court allowed an appeal by the present respondents against the grant of a resource consent relating to the proposed strengthening of and improvement to 630 metres of the existing Cobden stopbank in the Cobden area of Greymouth. The appeal was allowed to the extent that the resource consent was made subject to a further condition namely:-

“That the Regional Council shall ensure that there is in place, for the duration of this consent, adequate pumping facilities to dispose of surface and seepage water within the Nelson Quay road reserve immediately adjacent to the stopbank. The pumping facilities shall be designed to cope with stormwater runoff and seepage collecting on Nelson Quay to a one in fifty year event.”

Background

[3] In the late 1980s, there were a number of severe floods in Greymouth. These resulted in severe flooding in the town centre of Greymouth and the suburb of Blaketown (on the true left bank of the Grey River) and in Cobden (on the true right bank of the river).

[4] As a result, an integrated system of flood protection was designed and built on both sides of the Grey River. The Cobden floodwall is on the northern side (or true right bank) of the Grey River. At its eastern most point, it is adjacent to the Stafford Street/Nelson Quay intersection. It then runs parallel to Nelson Quay for the full length of the Cobden township and then continues to run parallel to Nelson Quay crossing Range Creek to its western extremity at what used to be the Cobden tip. The 630 metres of the stopbank which are in issue in this appeal lie between the Stafford Street/Nelson Quay intersection and the Blackett Street/Nelson Quay intersection.

[5] Portions of the Cobden stopbank are built on organic and waste matter. There are a significant number of underground channels (known as “palaeo channels”) which allow water to seep into the area behind the stopbank. The compaction of the stopbank is also not uniform. The result is that there is seepage from the Grey River through and under the stopbank.

[6] Concerns as to the stopbank resulted in an investigation by a consultant engineer, Mr Robert James Hall. He recommended that problems (actual and potential) associated with the stopbank be addressed by:-

1. The renewal of part of the landward face of the 630 metres of the stopbank which I have identified and the replacement and extension of this face towards Nelson Quay with an additional four metre wide strip of compacted selected fill battered to 2 horizontal to 1 vertical; and

2. The placement of a seepage blanket and drainage system beneath the new fill.

[7] A number of Cobden residents, including the present respondents, would prefer the existing stopbank to be pulled down and replaced with a structure which is more soundly designed and built. That preference, however, must be regarded now as no longer being on the table (for reasons which are adequately discussed in the decision of the Environment Court). The respondents also, however, have particular concerns relating to the work proposed by Mr Hall - primarily that the increase in the width of the stopbank will take up a significant portion of the retention area for ponding water on the Nelson Quay reserve at the rear of the stopbank. This, in turn, is likely to exacerbate surface flooding in the Cobden area, particularly in respect of homes close to the stopbank.

[8] To place the concerns of the objectors in context, I must refer to the lie of the land to the north of the stopbank, ie on the Cobden side of it. Immediately adjacent to the stopbank is the Nelson Quay road reserve. In times of high rainfall, this reserve serves as a ponding area for water. The water which ponds there is, in part, surface water from Cobden. The flow of this surface water into the Grey River is impeded by the stopbank. There are drains through the stopbank but they shut off in times of flooding. The ponding is also contributed to by water seeping through and under the stopbank. This ponding area is comparatively limited. If its storage capacity is exceeded, flood damage to adjacent houses (including those of the respondents) will occur.

[9] As I understand the decision of the Environment Court (and my understanding is consistent with what I was told from the bar) Mr Hall responded to the objectors’ concerns by suggesting that a pumping station on the Cobden side of the stopbank be configured and operated so as to deal with surface water as well as seepage water. The condition imposed by the Environment Court, which is now subject to challenge in this appeal, gives effect to Mr Hall’s suggestion and was, therefore, intended to address the problem which I have been discussing.

The decision of the Environment Court

[10] In its decision, the Environment Court reviewed the background to the problem with which it was confronted. As well, it also addressed a number of issues which are no longer in contention, including the argument that the existing stopbank should be completely rebuilt.

[11] With the rejection of the complete rebuild option, there could be no serious challenge to the appropriateness of a resource consent along the lines sought by the West Coast Regional Council.

[12] The reasons given by the Environment Court for the imposition of the condition were as follows:-

“[14] The evidence of Mr Hall appears to largely agree with the appellants’ evidence as to seepage. He agrees that there are palaeo channels beneath the stopbank and that the structure of the stopbank itself is particularly variable with it being constructed over areas of organic and waste materials in places. He accepts that his brief and design is intended to deal with the permeation of water from under and over the stopbank, rather than surface water within the catchment of the Cobden area behind the stopbank.

[15] However, it is equally clear in evidence by Mr Hall that the pumping station can easily be configured in such a way as to deal with surface water as well as seepage water. He also accepts that once the water has collected on the surface behind the stopbank, it is difficult to tell its exact origin. To provide adequate protection for the stopbank Mr Hall was clear in his evidence that there needed to be some remaining surface water to avoid over-pumping and thereby scouring of fines as a result of water entering through palaeo channels or permeating under or through the stopbank. The maximum ponding level which is presently proposed would set the water level at 300 mm below the edge of the seal on the stopbank side of Nelson Quay. He says if this proves unsatisfactory under service conditions it can be reviewed to a more acceptable level. The reason for requiring such flexibility is that at the level presently proposed there may be other effects arising such as an elevation of stormwater levels on the properties north of Nelson Quay to an extent unacceptable to those property owners. Mr Hall says pumps can be chosen which have the ability to accommodate the small increase in pumping duty required if such changes were necessary.

[16] We have concluded that pumping of surface water ponded behind the stopbank is a critical element of the application. We noted particularly that stormwater drainage was directed through or under the stopbank with flapgates that close in high flood conditions. The stormwater then had sump outlets to areas immediately behind the stopbanks on Nelson Quay road reserve. This directs stormwater from within the catchment to this position and has potential to cause flooding particularly when combined with sewage. Provided however the level of pumping can be addressed as part of the conditions of consent, we have concluded that the potential adverse effects of the surface flooding within the Cobden wall as a result of these earthworks can be overcome.

[17] If the situation of the palaeo channels and water seepage in the event of flooding on Nelson Quay by the stopbank is as serious as suggested by Mr Stepkowski, there may be limits to the amount of time that any flood protection system and pumping system could provide protection for homes in the area. As part of the former riverbed this area is low lying and would have traditionally formed part of the fairway for the river in times of heavy flood. It appears that the stopbanks have provided protection to homes in the area during a number of significant events over the last twelve years.

[18] As the flood protection system has been designed and built to provide equal levels of protection along both banks of the river it is important that the Cobden area be maintained to the same level as that on the Greymouth side. We consider that the application seeks to provide a robust and proper approach to the issues of permeability of the stopbank by providing a heavier bank with the potential for a further increase in height if this is deemed necessary as a result of further investigations and modelling currently being undertaken.

Effects

[19] The only adverse effect that we are able to ascertain as a result of the development is the potential for the stopbank itself to take up the existing detention pond area on the Nelson Quay side of the stopbank. In our view this concern is more than overcome by the provision of the pumping station. A co-ordinated flood and stormwater system is necessary. In our view the pumping station can properly address the pre-existing issues relating to surface flooding behind the wall by the provision of a variable pumping rate pump that can be adjusted to provide for catchment flow as well as seepage. Mr Hall’s evidence was that the current consent for the pumping station allowed the instalment of a pump able to handle 200-300 litres/sec. This was in his view probably sufficient for both seepage and surface water. His concern was not to over pump which would encourage scouring of fines from the stopbank.

[20] We are of the view that provided the pumping of surface water can be maintained to a one in fifty year event without flooding beyond the road reserve. [sic] This will provide adequate protection for the parties in respect of the only adverse effect identified by this Court as a potential result of the granting of this application.”

Concerns on the part of the West Coast Regional Council in relation to the condition

[13] This appeal is advanced on six grounds:-

1. The condition is ultra vires as a regional council cannot be bound to undertake surface water and stormwater disposal in the manner set out in the conditions.

2. The resource consent is ultra vires as the condition does not fairly and reasonably relate to the resource consent application that was before the Environment Court for consideration.

3. The wording of the condition is uncertain and accordingly it cannot be said with certainty whether the requirements of the condition are being met or not.

4. The condition is unenforceable due to uncertainty as to the precise meaning of the wording of the condition.

5. The condition is ultra vires in that it purports to grant a de facto consent to the discharge of stormwater.

6. The Court applied the wrong legal test in determining an appeal relating solely to a floodwall extension by taking into consideration surface water build-up generally in the Cobden area. Applications for stormwater disposal were not before the Court.

[14] These grounds of appeal overlap. I see them as raising four discrete arguments:-

1. The condition did not fairly relate to the subject matter of the application for the resource consent.

2. The condition is ultra vires the Environment Court as being inconsistent with the legislative scheme as to the responsibilities of Regional Councils and District Councils in respect of surface water.

3. The condition is ultra vires as being a de facto discharge consent which was not applied for.

4. The wording is inherently uncertain.

[15] I will deal with the appeal by reference to these four arguments.

The condition did not fairly relate to the subject matter of the application for the resource consent

[16] Contrary to this contention on behalf of the West Coast Regional Council, I had no doubt that the condition did, indeed, fairly relate to the subject matter of the resource consent application; this in the following respects:-

1. The existence of a stopbank impedes the flow of surface water into the Grey River; and

2. The expansion in size of the stopbank with the resulting encroachment into the existing ponding area on the Nelson Quay road reserve exacerbates the risks of flooding associated with the ponding of surface water and thus the risks of associated damage to the properties of the adjacent residents.

The condition is ultra vires the Environment Court as being inconsistent with the legislative scheme as to the responsibilities of Regional Councils and District Councils in respect of surface water.

[17] In effect, Mr Chapman argued that regional councils do not “do surface water”. He said that the legislative scheme is that, in general, surface water within the Grey District is the responsibility of the Grey District Council and not the West Coast Regional Council.

[18] There is some force in what Mr Chapman has to say as to the legislative scheme.

[19] The West Coast Regional Council inherited the powers of the Westland Catchment Board and Regional Water Board when local government was re-organised in 1989, see the Local Government (West Coast Region) Re-organisation Order 1989. Although there is provision under the Local Government Act 1974 for regional councils to have conferred upon them drainage functions (see s 37SA) no such powers have, in fact, been conferred upon the West Coast Regional Council. On the other hand, the Grey District Council does have the statutory function of providing for the efficient drainage of its district, see Local Government Act, ss 442, 445 and 446. I accept that, as a matter of general operational practice, the West Coast Regional Council could be expected to see its functions under the Soil Conservation and Rivers Control Act 1941 as relating primarily to rivers and likewise would, in the ordinary course, expect issues associated with drainage (and thus the disposal of surface water) within the Grey District to be addressed by the Grey District Council.

[20] I note that ss 30 (dealing with regional councils) and 31 (dealing with territorial authorities) of the Resource Management Act 1991 provide for both the West Coast Regional Council and the Grey District Council to have functions involving controls associated with “the avoidance or mitigation of natural hazards”. That the functions of regional and local government agencies in this respect overlap was recognised by the Court of Appeal in Canterbury Regional Council v Banks Peninsula District Council [1995] 3 NZLR 189. I do not, however, see these provisions as relevant to the case at hand; this because I think that the power to “control” for the purpose of the avoidance or mitigation of natural hazards conferred by those sections is intended to be exercised by way of rules rather than in the operational sense which is relevant to this case.

[21] Although I accept that it is generally true to say that it is for the Grey District Council and not the West Coast Regional Council to deal, in an operational sense, with surface and storm water, there are fundamental difficulties with Mr Chapman’s argument which seems to me to have been pitched too high.

[22] The first difficulty is that the surface water problem being addressed by the Environment Court is, itself, an adverse effect which is likely to be exacerbated by the expansion in size of the Regional Council’s stopbank. The statutory powers of the Regional Council vis-a-vis the stopbank must necessarily encompass whatever is required of the Regional Council to obtain and maintain resource consents associated with the stopbank and, if that encompasses surface water, then this is therefore necessarily within the statutory purview of the Regional Council. For instance, there are existing drains through the stopbank which, on the Grey River side, have flap gates so that they shut in times of flood. These drains are intended to facilitate the disposal of surface water. It would be absurd to suggest that, in constructing the stopbank, the West Coast Regional Council did not have the statutory authority to provide such drains.

[23] Secondly, I think that the distinction (for statutory purposes) between surface/stormwater, on the one hand, and river water, on the other, is not as hard and fast as Mr Chapman maintained.

[24] Section 126(1) and (2), Soil Conservation and Rivers Control Act 1941 provides:-

“(1) It shall be a function of every Catchment Board to minimise and prevent damage within its district by floods and erosion.

(2) Each Board shall have all such powers, rights, and privileges as may reasonably be necessary or expedient to enable it to carry out its functions, and in particular each Board shall have power to construct, reconstruct, alter, repair, and maintain all such works and do and execute all such other acts and deeds including the breaching of any stopbank as may in the opinion of the Board be necessary or expedient for—

(a) Controlling or regulating the flow of water towards and into watercourses:

(b) Controlling or regulating the flow of water in and from watercourses:”
(Emphasis added)

“Floods” for the purposes of this section seems to me to include floods associated with surface water. So, this section gives the West Coast Regional Council the power to take steps associated with the prevention of damage by flooding (including flooding by surface water) within its district. Further it gives the West Coast Regional Council power to control or regulate the flow of water towards and into water courses (including, therefore, the necessary powers to become involved with the operation of the pumping station which is in issue in this appeal).

[25] Section 133(1), Soil Conservation and Rivers Control Act provides:-

“(1) Subject to the provisions of this section, every Board may for the purposes of this Act, by itself, its engineers, officers, agents, and workmen,—

(a) Cleanse, repair, or otherwise maintain in a due state of efficiency any . . . defence against water: . . .

(c) In such manner and of such materials as it thinks necessary or proper, make any new watercourse or new outfall for water and cause the same to communicate with the sea or any arm thereof, or with any other watercourse or a lake, either within or outside its district, or erect any new defence against water, or carry out any other work it thinks necessary or desirable for the purpose of controlling or preventing damage by flood waters:”
(Emphasis added]

I note in passing that s 133(2) provides the machinery for resolving any issues of dispute between a catchment board and, inter alia, any territorial local authority in relation to overlap of operational functions in relation to this section. So the legislature has addressed the possibility of an overlap of functions between a catchment board and a territorial local authority.

[26] As to this I note that the expression “defence against water” is defined as including:-

“[A]ny dam, weir, bank, carriageway, groyne, or reservoir, and any structure or appliance of whatsoever kind which has or may have the effect of stopping, diverting, controlling, restricting, or otherwise regulating the flow or spread or subsidence in or out of a watercourse, of water including flood waters.”

Given that the phrase “defence against water” includes, inter alia, a “carriage way”, a “reservoir” and anything which has the effect of controlling or regulating the flow of water into a watercourse, it seems to me that the pumping station associated with the Nelson Quay road reserve (which serves as a ponding area) could fairly be described as being a “defence against water”. Accordingly, it seems to me that s 133 confers on the West Coast Regional Council power to become involved in the design, operation and maintenance of the pumping station.

[27] Finally, I note that s 143(2), Soil Conservation and Rivers Control Act 1941 provides:-

“Every Catchment Board shall exercise a general supervision with respect to the exercise and performance within the catchment district by local authorities of any powers, functions, and duties as to watercourses and as to drainage conferred and imposed on local authorities by the Land Drainage Act 1908, the River Boards Act 1908 , the Local Government Act 1974, or any other Act, and may give such general or special directions as it considers reasonable for the guidance of local authorities with respect to the exercise and performance of those powers, functions, and duties.”

[28] Under this section the West Coast Regional Council has the power to exercise a general supervision over the exercise by the Grey District Council of its powers associated with surface water and, further, may give general and special directions in respect of the exercise of those powers.

[29] In that context, I am of the view that it cannot be said that the condition is ultra vires.

The condition is ultra vires as being a de facto discharge consent which was not applied for

[30] The discharge consent associated with the pumping station is held by the Grey District Council and had been obtained by the time the decision of the Environment Court was released. This is referred to, albeit obliquely, in the decision of the Environment Court.

[31] In this context, it is perfectly clear that the Environment Court was not purporting to grant a discharge consent which had not been applied for.

[32] I do not see the condition imposed by the Environment Court as being an in substance variation of the discharge consent granted to the Grey District Council. I say this for the following reasons:-

1. The discharge consent obtained by the Grey District Council is in general terms and the provision of pumping facilities within the Nelson Quay road reserve designed to cope with stormwater run-off and seepage collection on Nelson Quay to a one in fifty year event is within the scope of what is permitted under the consent.

2. The Environment Court was not, by the imposition of this condition, imposing any control or constraints on the Grey District Council. The effect of its decision was that if the West Coast Regional Council acts on the resource consent in question, it must ensure that the pumping facilities, as specified in the condition, are provided.

3. While I imagine that the West Coast Regional Council would, in the first instance, seek to comply with the condition through negotiations with the Grey District Council, it does have the statutory power to compel whatever co-operation is necessary.

The wording is inherently uncertain

[33] There are two possible areas of uncertainty which are of concern to the West Coast Regional Council. The first relates to exactly what is meant by a one in fifty year event and the second as to what exactly it is required to do to satisfy the requirements of the consent.

[34] The fact that an issue of interpretation arises in respect of a condition does not mean that it is uncertain and thus void. I accept that issues of interpretation arise in this case and, broadly, in respects identified by Mr Chapman. I do not, however, see these issues as particularly difficult to resolve and, in particular, I do not see them as making the condition void for uncertainty.

[35] There are two relevant catchments, the Cobden catchment and the Grey River catchment. The condition is not explicit as to whether it refers to the Grey River catchment or the Cobden catchment. Further, what is a one in fifty year event has an ambulatory meaning (because as more data is gathered and retained over the years the calculation as to what constitutes a one in fifty year event changes).

[36] Given that the issue relates to stopbanks associated with Grey River flooding, I am of the view that the condition is referable to a one in fifty year event in respect of the Grey River. Further, given that the wording of the condition relates to the design of the pumping facility, I am of the opinion that the condition is to be construed as referring to a one in fifty year event as calculated at the time the pumping facilities are designed.

[37] Mr Chapman complained about the use of the phrase “adequate pumping facilities”. I suspect that my interpretation of what constitutes a one in fifty year event may largely address and resolve his concerns in this respect. For the avoidance of any doubt, however, I record that it seems to me that the phrase “adequate pumping facilities” means pumping facilities designed to cope with a one in fifty year event.

[38] Although the word “ensure” is a strong one, I do not see the obligation on the West Coast Regional Council in relation to the pumping station as being, in practical terms, either onerous or uncertain. The pumping facilities will be put in place, operated and maintained by the Grey District Council which has a resource consent sufficient to ensure the operation of those facilities in the manner contemplated by the condition. All the Regional Council needs to do to comply with the condition is to ensure that the District Council does provide pumping facilities as contemplated by the conditions. It can do this by negotiation with the District Council or, if necessary, by direction under s 143(2), Soil Conservation and Rivers Control Act. It can also ensure that the District Council continues to operate and maintain the pumping facility either by negotiation or by giving an appropriate direction under s 143(2).

Disposition

[39] All arguments on behalf of the West Coast Regional Council having been rejected, the appeal is dismissed. The respondents are entitled to costs on a 2B basis (although in the case of Mr and Mrs Banks, the order for costs can encompass disbursements only).