Green v Watercare Services Limited [2013] NZCA 137 (7 May 2013)

Last Updated: 15 May 2013

IN THE COURT OF APPEAL OF NEW ZEALAND

CA775/2012 [2013] NZCA 137

BETWEEN WILLIAMS JAMES GREEN Applicant

AND GREEN ENVIRONMENTAL LIMITED Second Applicant

AND WATERCARE SERVICES LIMITED Respondent

Hearing: 17 April 2013

Court: Harrison, Allan and Clifford JJ

Counsel: A Haskett and M Porner for Applicants A Adams and H Yiu for Respondent

Judgment: 7 May 2013 at 10 am

JUDGMENT OF THE COURT

A The application for leave to appeal is dismissed.

REASONS OF THE COURT

(Given by Harrison J)

Introduction

[1] The applicants, William Green and Green Environmental Ltd, were convicted in the District Court at Manukau on charges laid by Watercare Services Ltd (Watercare) of breaches of statute and of a bylaw relating to discharging trade waste.[1] Asher J dismissed an appeal.[2] Mr Green and his company now apply for special leave to appeal against conviction pursuant to s 144 of the Summary Proceedings Act 1957, on the ground that the appeal raises four questions of law which because of their general or public importance or some other reason ought to be submitted to this Court for decision.

Background

[2] Asher J summarised the essential facts giving rise to Watercare’s prosecution of Mr Green and his company as follows:

[1] On 2 July 2009 the appellant William James Green and another were observed parking a green septic tank truck beside a manhole. A hose was connected from the back of the truck into the manhole and it appeared that a valve was opened. When Mr Green was asked if he had a permit to dump material at the sewer Mr Green responded “no”. The sound of material discharging into the sewer could be heard and there was a smell of septic tank sewage.

[3] In the District Court the applicants ran every conceivable line of defence to the charges. The transcript of evidence occupied 250 pages. Much of it is characterised by irrelevant and repetitious cross-examination.
[4] Judge Eivers found the charges proven. Despite the many legal defences run by Mr Green and his company, proof of the charges came down to a simple factual question. Mr Green admitted that he had parked his truck next to a manhole, unloaded the hose and then connected it to the manhole. His purpose, he said, was to keep people away from the area while he could go to the toilet. Judge Eivers was unpersuaded by this explanation. She found:

[67] I have real difficulty accepting [Mr Green’s] explanation for the events of that day. It seems incredible and indeed quite implausible that one would go to the lengths Mr Green did simply to urinate and apply haemorrhoid cream. Rather than distract members of the public who might be passing by (as he stated was his intention) he drew attention to himself by parking in a quiet street and going to the trouble of laying out a hose to the manhole. That act in itself would have taken more time than would be required to attend to the personal matters Mr Green states he needed to attend to.

[5] Judge Eivers found Mr Green and his company guilty of charges that contrary to s 5(2)(b) of the Auckland Regional Council Trade Wastes Bylaw 1991, each permitted trade waste to be discharged except as authorised by a current consent. She imposed fines of $18,000 for each breach.[3] The Judge convicted and discharged Green Environmental Ltd on one charge under s 77(1) of the Auckland Metropolitan Drainage Act 1960 (the AMDA) of connecting a trade waste drain to a public sewer without a current consent.
[6] In the High Court the applicants raised 16 different grounds of appeal against conviction (many were plainly untenable) and filed a written synopsis of submissions totalling 54 pages. In a comprehensive judgment, Asher J dismissed the appeal.

Questions of law

[7] Mr Haskett identifies these arguable questions of law:

• (a) Does s 77 of the AMDA apply only to the connection of trade waste drains to trade premises;
• (b) Is a vacuum truck “trade premises” within the meaning of ss 77 and 83 of the AMDA and s 5(2)(b) of the bylaw;
• (c) Does domestic sewage from a septic tank become “trade wastes” and subject to s 5(2)(b) of the bylaw by being transported and discharged from a vacuum truck; does it remain “domestic sewage” and outside the scope of s 5(2)(b) as being “wastes of the same character discharged from other premises”[4]; or is it some other “solids, liquids or gases” that are neither trade wastes nor domestic sewage and outside the scope of s 5(2)(b); or
• (d) Is a hose from a vacuum truck a “trade wastes drain” being a “pipeline, channel, culvert or ditch”[5] for the purposes of s 77 of the AMDA and, if so, is the hose “connected” if it is not fixed to a public sewer and by way of “construction, alteration or extension”.

[8] In applying to the High Court for leave to appeal, Mr Green and his company identified three questions, in clearer and less elaborate terms than those now identified, corresponding with questions (b), (c) and (d). Question (a) seems new.
[9] In dismissing the application for leave Asher J said this:[6]

[8] There is undoubtedly a legal aspect to these questions, but they are predominantly matters of fact. They concern whether certain actions of the applicants fell within certain definitions or phrases in the Auckland Regional Council Trade Wastes Bylaw 1991 and the Auckland Metropolitan Drainage Act 1960.

[9] There are not of any general public importance. The bylaws and the sections have stood for many years without giving rise to any legal problems. The Auckland Regional Council Trade Wastes Bylaw will expire whenever the Auckland Council makes a new regional trade wastes bylaw, or on 1 July 2015 whichever is the earlier, pursuant to s 25(3) of the Local Government (Auckland Transitional Provisions) Act 2010. The bylaw making powers under the Auckland Metropolitan Drainage Act that are said to be at issue in relation to the second appeal point have been wholly repealed pursuant to s 114 of the Local Government (Auckland Transitional Provisions) Act. Thus, such questions of law that arise are unlikely to have practical significance.

[10] I must also observe that the case against the applicants was a very strong one. The arguments raised are technical and of little intrinsic merit.

[11] In all the circumstances I do not consider that there is any question of law of general or public importance raised.

[10] Despite Mr Haskett’s careful argument, we are not satisfied that any or all of the questions are arguable questions of law; while as Asher J observed, some of the questions have a legal element, we agree with Ms Adams that they are primarily of a factual nature. By reference to each of the proposed questions:

• (a) Section 77 of AMDA prohibits the connection of a trade waste drain to a public sewer without consent. Section 2(1) defines trade waste as “... any liquid ... which are being or may be discharged in the course of any trade or industrial process or operation”. Mr Haskett’s point appears to be that the statutory definitions of a trade waste drain and trade waste sewer support the view that a trade waste drain is intended to join trade premises with a public sewer. We do not accept that the AMDA can be read to incorporate the additional requirement that the source of the waste must be trade premises; it is the connection without consent of a trade waste drain to a public sewer which is prohibited. This question is not arguable.
• (b) Mr Haskett’s proposition is that a vacuum truck is not “trade premises” within the meaning of s 77 of the AMDA and s 5(2)(b) of the bylaw. We have just made the point that s 77 does not require proof of the existence of trade premises. However, Mr Haskett relies on s 83 of the AMDA which empowers a local authority to make bylaws relating to the discharge of any trade waste from trade premises into any public sewer. He says that this section must be read into the bylaw. Assuming for the purposes of argument that he is correct, we have no doubt that Asher J was correct in rejecting the same submission by construing s 83 in a purposive way.[7] “Trade premises” are defined as “any premises from which any trade wastes ... are being or may be discharged”.[8] There is no warrant for limiting the definition of “trade premises” to land and buildings where vehicles are in wide use as the source of places where the trade of waste disposal is conducted.
• (c) The compound and confusing nature of this question detracts from its tenability. We will treat it in its more simple form, as it was before Asher J, as whether domestic septic tank waste fits within the bylaw definition of “trade waste”. Asher J was in no doubt on this question, which is essentially of a factual nature, and neither are we.[9] The material was plainly trade waste in that it was being held by the applicants in the course of their business, regardless of its original composition or nature.
• (d) Similarly, there can be no doubt that a hose from a vacuum truck is a “pipeline” and thus a “trade waste drain” for the purposes of s 77 of the AMDA. The fact that it is of a flexible nature is irrelevant. It performs all the purposes of a pipeline by conveying or transporting liquid or raw material within an enclosed tubular structure from one point to another.

[11] For these brief reasons, we are satisfied that the application for leave to appeal does not raise any arguable question or questions of law. We add that, even if Mr Green and his company had crossed that threshold, we would have refused leave. As Ms Adams emphasised before us and Asher J accepted, the relevant bylaw is about to be repealed and replaced. Any decision of this Court on the questions now said to be at issue is likely to be of academic importance only.

Result

[12] The application for leave to appeal is dismissed.

Solicitors:
Legal Defence Service Ltd, Auckland for Applicants
Meredith Connell, Auckland for Respondent

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[1] Watercare Services Ltd v Green DC Manukau CRI-2009-092-506415, 17 November 2011.
[2] Green v Watercare Services Ltd [2012] NZHC 2308.
[3] Watercare Services Ltd v Green Environmental Ltd DC Manukau CRI-2009-092-20762, 17 February 2012.
[4] Auckland Metropolitan Drainage Act 1960, s 2(1) (definition of “domestic sewage”).
[5] Auckland Metropolitan Drainage Act, s 2(1) (definition of “trade wastes drain”).
[6] Green v Watercare Services Ltd [2012] NZHC 2890.
[7] Green v Watercare Services Ltd, above n 2, at [46].
[8] Auckland Metropolitan Drainage Act, s 2(1).
[9] At [31]–[36].