Auckland Regional Council v Holmes Logging Limited DC Auckland CRI- 2008-004-7999 [2011] NZDC 180 (10 February 2011)

Last Updated: 26 September 2016

IN THE DISTRICT COURT HELD AT AUCKLAND

CRI-2008-004-007999

BETWEEN AUCKLAND REGIONAL COUNCIL

Informant

AND HOLMES LOGGING LIMITED

KENNETH ANGUS HOLMES Defendants

JUDGMENT — ON REMISSION FROM THE HIGH COURT

Judgment delivered: February 2011

2

Introduction

[1] This set of prosecutions has had a long and unhappy history, extending back as far as July 2006. The short history is that following a defended hearing in May 2008, I dismissed charges laid under the Resource Management Act 1991 against these defendants. The Informant Council sought to appeal by way of Case Stated. That of itself became rather fraught — I declined to sign the Case Stated as presented, because it did not reflect what I had actually decided. Eventually a Case Stated was lodged which, I must accept, was what the High Court had as a base document for its hearing.
[1] The end result was that in a Judgment delivered in June 2010 (Auckland Regional Council v Holmes Logging Ltd & Ors High Court Auckland, CRI 2009404-35, 36, & 37 Judgment 17 June 2010, Woodhouse J) the High Court Judge upheld my decision in respect of the charges laid under s15 RMA, but was of the view that I had erred in law in dismissing the charges laid under s9. Those charges were remitted for me to reconsider whether, in light of the answers given to the questions of law, they ... have been proved in all respects and, if so, whether convictions should be entered see para [121].
[1] I could perhaps mention here that following the delivery of the Judgment in June 2010, counsel for the defendants sought to have the High Court recall its Judgment on the basis that the result may have been influenced by a misunderstanding of the exact nature of the s9 charges — apparently the fact that they had been amended in one respect at the outset of the May 2008 hearing had not been drawn to His Honour's attention. That issue was not resolved until August 2010. The Judgment was not recalled because His Honour's view was that he lacked jurisdiction to do so, the judgment having been perfected before the application to recall it was made.
[1] At a pre-hearing Conference at Auckland on 22 September 2010, it was agreed that the matter could proceed on the existing record, and on further submissions to be lodged. Following that, a series of memoranda and submissions were lodged in this Court; a process which continued until November 2010. I regret that the press of

3

other matters prevented me dealing with the reconsideration before the end of that year.

Analysis of the s9 charges

[5] At para [2] of the decision of 29 May 2008, I indicated that in respect of the s9 charges, one of the factors to be proved by the Informant was: Thirdly, that the activities were not expressly allowed by a Resource Consent granted by the Auckland Regional Council. I have to accept that that was a regrettable misstatement of the law — see s67(8) of the Summary Proceedings Act 1957. But I believe that a reading of the reasons I gave in the decision of 29 May 2008 for the conclusion that the s9 charges had not been established indicates that this misstatement of the law played no part.
[5] First, there is para [7]:

These charges all allege the use of land in a manner that contravened a Regional Plan Rule — namely Rule 5.4.1.2 in the Auckland Regional Plan: Sediment Control — in a manner that was not expressly allowed by a resource consent. This Plan became operative in 2001. Ride 5.4.1.2 sets out the permitted activity conditions for vegetation removal. Primarily, it requires the implementation of ...effective erosion and sediment control measures. The Explanation for the Rule says that the relevant measures should be implemented in accordance with the document referred to in the hearing as TP (Technical Publication) 90. This document establishes Council recommended guidelines for erosion and sediment controls, and is a replacement for TP 2, shortly to be mentioned. The evidence plainly establishes that the TP 90 provisions were not complied with, in terms of dimensions and capacities of the various structures put in place by the defendants on the sites. The Council's position is that the defendant thereby failed to comply with the Rule, and committed a breach.

[5] And then, there is para [17]:

But the first step is whether there was a contravention of the Plan, and in respect of the permitted activity Rule, logic drives me to agree with the defence position. What the substantive Rule requires is effective erosion and sediment control measures. The contents of the Explanation provide guidance as to how the primary purpose can be achieved, and might well be taken as evidence of accepted standards and good practice which an operator ignores at its peril. But those methods are not compulsory and where, as here, there is no evidence that there was sediment damage

4

to waterways or their inhabitants, the defendants can say that what they did, even if not complying with the TP document, was effective. If they were effective, then I cannot be satisfied beyond reasonable doubt that the land use activities, (assuming them to be permitted) conducted by the defendants contravened the Regional Plan Rule. If that is so, the charge fails at that point, and whether or not the Consent expressly allows the activity is superfluous.

[8] Those views do not seem to have translated into the Case Stated as finally lodged but that is not of concern when I am dealing with the matter afresh, in accordance with the remission. But, to summarise, my view was that the conclusion must be that, imperfect as they may have been, the erosion and sediment control measures put in place were effective or, at the least, have not been shown to be ineffective and that Rule 5.4.1.2 was therefore not breached. On that view, whether• or not the work was within the terms of a resource consent had no bearing on the outcome and s67 SPA was irrelevant.

The status of TP 90

[8] As matters have developed however, that is not now the decisive point. Rule 5.4.1.2 contains explanatory notes, and, as already mentioned, they in turn contain reference to the document known as TP 90. It was my view that TP 90 was in the nature of a guideline, providing optional methods of compliance with the primary obligation in the Rule — to establish effective sediment controls. That is set out in the paras from the May 2008 decision quoted at para [6] and [7] above.
[8] Contrary to that view, at para [62] of the High Court Judgment His Honour records his view that compliance with TP 90 was mandatory, meaning that if it was not complied with, the Rule was breached.
[8] That being so, the matter can be brought to a rather prompt conclusion. It was plain on the evidence that TP 90 was not complied with. Indeed it was not considered at all by the personnel of Holmes Logging. That is recorded at para [12] of the 29 May 2008 decision. So, if exact compliance with TP 90 was a mandatory requirement of compliance with Rule 5.4.1.2, the defendants failed in their responsibilities.

5

[12] Given the finding that what was being done on the land fell within the meaning of earthworks, it must then be the case that the defendants did, as the s9 charges allege, use land in a manner which contravened Rule 5.4.1.2 .

[131 To round out that position, I should perhaps record that any suggestion that the position might have been rescued by compliance with the resource consent (ie the defendants establishing compliance, on the balance of probabilities, under s67) could not succeed. There was no compliance with the document known as TP 2, which was required under the resource consent (Special Condition 2), and that was also held to be mandatory (see High Court Judgment para [79]).

Conclusion

[141 I must therefore conclude that on the interpretation of the Rule as it is now stated to be, the s9 charges are proved. I will next be sitting in Auckland in the last week of March. I suggest that the question of final disposal of these matters be adjourned to 9.00 on Wednesday 30 March 2011, in the Auckland District Court.
Dated Wellington the 10th day of February 2011

C J Thompson

District Court Judge/Environment Judge