Burrell v Wellington City Council [2012] NZHC 1275 (22 June 2012)

Last Updated: 11 July 2012

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2010-485-2310 [2012] NZHC 1275

UNDER THE RESOURCE MANAGEMENT ACT

1991

BETWEEN BURRELL DEMOLITION LIMITED AND ALEXANDER JAMES BURRELL

Appellants

AND WELLINGTON CITY COUNCIL

AND WELLINGTON REGIONAL COUNCIL Respondents

Hearing: 8-9 December 2011

Counsel: P A Morten for Appellants

S F Quinn for Respondents

Judgment: 22 June 2012

In accordance with r 11.5, I direct the Registrar to endorse this judgment with the delivery time of 1.00pm on the 22nd June 2012.

_{JUDGMENT OF WILLIAMS J}

Solicitors:

Harkness Law Ltd, PO Box 342, Wellington

DLA Phillips Fox, PO Box 2791,Wellington

BURRELL DEMOLITION LIMITED & ANOR V WELLINGTON CITY COUNCIL & ANOR HC WN CIV-

2010-485-2310 [22 June 2012]

[1] On 26 October 2010, Burrell Demolition Limited (BDL) and Alexander James Burrell (the appellants) were each convicted in the District Court on two charges relating to their landfill operation. The charges in relation to BDL were that, in breach of s 338(1)(a) of the Resource Management Act 1991 (RMA), the company:

(a) permitted the discharge of waste material onto land in contravention of a regional plan and in a manner not authorised by any resource consent; and

(b) operated a landfill in contravention of the Wellington District Plan and otherwise than as expressly allowed by a resource consent.

[2] Mr Burrell is a director of BDL. He was charged under s 340(3) RMA. The mirror charges against him were essentially that BDL’s breaches occurred with his authority, permission or consent, that he could reasonably be expected to have known that the offence was being committed and failed to take all reasonable steps to stop it.

[3] On 30 November 2010, the appellants were each fined $15,000 and ordered to pay costs of $132.89. Enforcement orders were also imposed, designed to prevent further offending.

[4] The appellants now appeal against conviction.

Facts

[5] The facts are fully set out in the judgment of Her Honour Judge Kelly dated

26 October 2010 and the following summary relies largely on that judgment.

[6] BDL has operated the C & D Landfill at Landfill Road in Happy Valley, Wellington, since 1978. The site comprises 41.5 ha. BDL originally owned the land but it is now owned by the City Council and leased back to BDL. The site receives only clean-fill (that is inorganic waste) and is not open to the public. It was originally accessed exclusively by BDL to dump demolition fill collected by that company in the course of its demolition work. But since 1994, other contractors have also had access to dump clean-fill there. By 1994 (when BDL applied for its current consents), 250,000m³ of fill had been deposited at the site.

[7] The site originally held a 1976 water right to pipe the watercourse flowing through it but land use and other deposition consents do not seem to have been required at the beginning. After the enactment of RMA in 1991, fresh consents were sought in accordance with that Act to continue the filling operation. On 20 June

1995, the respondents jointly granted BDL discharge and land use consents as follows:

(a) discharge permit WGN940057(01): discharge of contaminants to land to expire on 14 June 2026; and

(b) land use consent to extend the area of C & D Landfill back into the natural gully system on the land, including the removal of side slopes for the covering of fill material.

[8] Fresh consents were also granted to divert and pipe the watercourse I have already mentioned, but nothing in this appeal turns on those consents.

[9] Before turning to address the arguments raised by the appellants, it is necessary to describe the background to the 1995 resource consents held by BDL.

[10] The consents were subject to a standard condition that the landfill must be operated in accordance with the consent application and the assessment of environmental effects (AEE) filed in support by the appellants’ environmental engineer. The condition was cast in these terms:

The location, design, implementation and operation of the C & D Landfill (Burrell’s cleanfill landfill) shall be as generally described in the Burrell Demolition Limited Resource Consent Applications for a Cleanfill and

4th Schedule Assessment (Assessment of Environmental Effects), as prepared for the consent holder by David Smith, Civil and Environmental Engineer,

dated April 1994, together with its associated reports and appendices and

evidence presented by the consent holder at the hearing.

[11] Because of this condition, the terms of the appellants’ AEE become crucial. That document defined both the height of the fill onsite circa 1995 (remember the landfill had already been operating for 13 years when the consent application was filed), and the expected finished heights across the site after further filling under the new consents. Filling was expected to be at an average rate of between 15,000m³ and 20,000m³ per year.

[12] The AEE described the landfill as contained within an east-west trending gully, running roughly perpendicular to Happy Valley Road. It is some distance up the gully, the lower part having been filled by a Wellington City Council-operated sanitary landfill. The Council sanitary landfill had been closed prior to 1995.

[13] The access road off Happy Valley Road (that is, Landfill Road) runs past the old sanitary landfill site to the entrance of C & D Landfill situated to the west and further up the gully.

[14] The AEE described in detail the batters that would be used to hold the fill in place. It also described in annexed schematic plans, where the batters would be placed and the expected batter angles.

[15] Paragraph 4.2.1 of the AEE estimated that the average level of the site at the time of the application was approximately 120 metres AMSL (above mean sea level). It is necessary here to note, because it became an important issue in the appeal, that all levels onsite except the 120 metres AMSL referred to at paragraph 4.2.1, were measured as ‘RL’ levels, not AMSL levels. The letters RL signify a surveyor’s term

– “Reduced Level”. This is a level calculated against a pre-selected datum. That datum may be mean sea level (where height is measured at AMSL) or it may be some other level chosen by the surveyor for the purposes of that particular survey: the level of some on-site geographic feature for example. Thus, a height measured as RL can only be properly understood if the datum for that height is also known.

[16] According to 4.3.1(b) of the AEE, the internal road through the C & D Landfill site began (at the end of Landfill Road) at 119 metres RL, and climbed through the site to 133 metres RL upstream. It is worth bearing these two levels in mind because they will become important later. These levels suggested that fill from the original gully floor level was about 20 metres deep in parts. Existing fill levels across the site at that stage were as high as 140 metres RL on the gully slopes. These areas were benched and compacted with batter slopes falling into a new gully floor level above the now piped and buried original watercourse flowing at the true gully floor level.

[17] Thus, ongoing filling since 1978 had brought the lower gully walls closer together and the now much narrower gully floor a little higher.

Proposed new levels and batter slopes

[18] According to the AEE, the 1995 proposal was to take the fill floor to

140 metres RL and the then existing benches up to 150 metres RL on the north and south gully faces. The next stage would be to progressively extend the whole fill area further westward and along the gully by 120 metres. Finished levels would be at 140 metres with benches to 150 metres RL. It was estimated that these vertical and horizontal extensions would, once consented, lengthen the life of the landfill by

25 years and enable it to receive up to 500,000m³ of clean fill. There would be plenty of capacity for further filling at the end of 25 years with more extensions westward to the head of the gully should further consents be obtained. The AEE estimated the gully’s overall capacity at 1-2,000,000m³.

[19] Filling in this way would require a plan to manage batter slopes against all benches as the gully progressively filled. The AEE provided that batter slopes for fill would be 30º for the western face of the extension and for all faces of the

150 metre RL extensions.

[20] Material would need to be cut from the gully faces to provide cover for the deposited clean fill. According to the AEE, cut batter faces on the gully walls would not be greater than 10 metres high without benching, and cut batter slopes would not exceed 70º with benches no more than 5 metres wide.

[21] Setting aside for the moment the question of which side carried the burden of proof, the councils took the view that the appellants had no defence to charges that they were operating in breach of the Act because fill height had exceeded the

150 metre RL maximum, and batter angles had exceeded the 30º maximum for fill batters as defined in the AEE. The councils said fill heights had reached up to

197 metres and fill batter angles had reached 45º on one slope.

Arguments

[22] The appellants mounted five arguments in support of their substantive appeal. They were as follows:

(a) the four informations were laid outside the six month time limit required by s 338(4) RMA;

(b) there was insufficient evidence to prove, to the criminal standard, that discharge of contaminants occurred at the site on or about

23 December 2009;

(c) it was not proved to the criminal standard that the fill heights had exceeded those set out in the AEE;

(d) in relation to batter slopes:

(i) the District Court was confined to the respondents’ notice of particulars which related only to the 70º cut batter angles not the 30º fill batter angles;

(ii) there was no proof of when the batters were created leaving open the reasonable possibility that they were built before the

1995 consents;

(iii) the court wrongly rejected the need for batter angles to be temporarily exceeded in the course of managing daily filling operations;

(iv) the court failed to differentiate between final batter angles as set out in the AEE, and angles applicable during daily filling even though filled batter angles in 1995 were already at 35º and were (or could be) reworked before “final slopes” were achieved;

(v) there was insufficient evidence to support a finding that batter slope angles were exceeded at the relevant time;

(e) the respondents failed to disclose documents to the defendants that were material to their defence sufficient to amount to an abuse of process and a breach of the New Zealand Bill of Rights Act 1990.

[23] I turn now to address each ground in the order set out above.

The first argument: informations laid out of time

[24] Section 338(4) RMA provides:

Notwithstanding anything in the Summary Proceedings Act 1957, any information in respect of any offence against subsection (1)[, (1A), or (1B)] of this section may be laid by any person at any time within 6 months after the time when the contravention giving rise to the information first became known, or should have become known, to the local authority or consent authority. (my emphasis)

[25] In this case the informations were laid on 22 June 2009. Therefore s 338(4) requires that the respondents either knew or ought to have known about the appellants’ breaches no earlier than 23 December 2008. If they knew (or ought to have known) any earlier than that date, the informations would have been laid too late.

Arguments

[26] The appellants say the respondents knew by 22 August 2008 that the fill onsite was over-height (by their measurements) and the batter slopes were too steep. This is because on that date a civil engineer by the name of Greg Haldane of URS (an engineering and environmental consultancy) provided a preliminary report to that effect to the Regional Council. That report had appended to it a drawing by a surveyor named O’Leary of Wynne Paterson, a survey firm. The drawing, and accompanying text identified fill heights and slope angles. Mr Haldane sent further drafts of his report to the Regional Council on 11 September and 17 October 2008 in which he confirmed height and batter angles. The appellants say that since the councils knew of the breach before 23 December the informations were laid well outside the six month limit contained in s 338(4).

[27] The respondents’ counsel submits that it was not until 23 December 2008 that the councils had the requisite knowledge to proceed meaning the informations were laid the day before the expiry of the six month limit. 23 December was the date upon which the Regional Council received a final report from Mr Haldane in which heights and angles were finally committed to.

District Court

[28] In the District Court, Judge Kelly took the view that the 22 August 2008 report from Mr Haldane was not a final report and the drawing prepared by surveyors was preliminary only. She relied in reaching that conclusion on subsequent email exchanges between Mr Haldane and the official from the Regional Council, Mr Luke Faithfull. Her Honour said:[1]

I find as a matter of fact that the first time the informants knew or ought to have known of the contraventions was when they received the final report from URS on 23 December 2008.

[29] I note that further documents were disclosed by the respondents after Her Honour’s judgment was issued and this appeal lodged. This material should have been disclosed to the appellants before trial but was not. I have considered this material and do not consider that any of it makes a difference to my view in this aspect of the appeal.

Levels given pre-December were preliminary

[30] I agree with Judge Kelly that the report of 22 August was preliminary only and that there remained extensive discussions to be had over the correct datum for RL measurements. In particular, it was not clear whether the RL figures were measured from mean sea level or some other specific onsite datum. It is true, as the appellants submit, that a further draft of the Haldane report was sent to Mr Faithfull on 11 September and that the respondents were becoming steadily more confident, but the report still said that at that stage, the correct datum remained unclear. An interpolated comment in the 11 September draft in relation to the use of mean sea level confirmed this. It said “This reference needs to be tidied up and hopefully we’ll get additional corroboration of the datum.” This sentence is not to be interpreted as reflecting the desire for corroboration of an already settled view. Rather, I read it as demonstrating an ongoing doubt about whether the RL datum was

_{in fact mean sea level. Exchanges in this respect continued past 11 September. For}

example, an email on 29 October 2008 from Mr Haldane to Luke Faithfull attaches a revised draft surveying assessment. The email provided:

Basically what I am hoping to get from the TSE group is information regarding the datum. I appreciate that this issue has been dragging on for quite some time but its key to the conclusions of the report.

[31] By 18 November, Mr Faithfull communicated with Brett Gawn of the TSE Group to try and resolve the matter. Mr Faithfull’s email to Mr Gawn provided:

I had a meeting with Greg Haldane from URS last week to discuss C & D. In the meeting Greg said that your evidence from the 2000 prosecutions [Mr Gawn had been involved in an earlier attempt at prosecution against BDL which had been withdrawn] was never finalised and therefore, Greg said he could not use the inferred datum information in his report.

We discussed the option of seeing if you were available to finalise this evidence. Greg said that if the information was finalised he would be able to use the inferred datum in his report...

[32] Clearly by 18 November 2008, more work was still needed.

The 1999 Gawn levels

[33] On 11 December 2008, Mr Gawn provided a draft of his evidence to Mr Faithfull in accordance with their November exchange. This evidence related to surveys done by Mr Gawn and three others from his firm some years earlier in August 1999. It did not relate to any survey of or visit to the site at any stage in

2008. Rather the exercise in 2008 appears to have been a desk-based one. The brief of evidence that resulted was expressly stated to be “draft” only. It identified two RL heights that had originally been plotted on Figure 3 appended to the AEE in the 1995 consent application. These were the 119 metre RL and 133 metre RL measurements I mentioned earlier in this judgment. These two points were still identifiable in 1999 and so could be compared to equivalent AMSL heights for the same two points. If the AMSL heights were the same as the RL heights, Mr Gawn could conclude that the datum for the RL levels in 1995 was in fact mean sea level. That would mean the councils could be sure that any subsequent height measurements should also treat mean sea level as the datum.

[34] Mr Gawn concluded that the RL heights plotted in Figure 3 were very close to standard AMSL heights. The draft evidence provided:

Figure 3 sketch in Appendix 5 appears to be schematic and not necessarily exactly to scale. However we are able to confirm that the levels shown on the C and D Landfill plan are in terms of the levels shown on the Tse topographical plan. I can state this because a number of the heights identified on Figure 3 are the same height (or similar) to heights shown on the Southern Landfill contour plan 1997. Specifically the height at approximately 120m along Landfill Road close to where the culvert is buried is where the 120m contour crosses Landfill Road in the 1997 plan. Also further into the Landfill the approximate level of 133m is located before the bank of the culvert extension. This feature can be seen on the 1997 plan and is close to where the 135m contour crosses.

[35] On the basis of these measurements, Mr Gawn concluded that the datum for the 1995 AEE levels was in fact mean sea level and that all levels should therefore be treated as AMSL. He therefore calculated the 1999 onsite levels he had earlier surveyed as follows:

5.2 The highest level of fill on the site at the time of survey was:

on the north side – 173 metres on the south side – 152 metres

5.3 The highest level of natural ground distributed was:

on the north side – 178 metres on the south side – 155 metres

[36] Remember these were 1999 levels, not 2008 levels and so not themselves relevant to the informations ultimately laid except as a means to set the datum for the RL levels. A final draft of Mr Gawn’s evidence appears to have arrived by normal post at the offices of the Regional Council on 19 December 2008 (it is date stamped

19 December).

The 2008 O’Leary levels

[37] Meanwhile the only surveyor to actually measure heights and batter angles as they obtained in 2008 was Clinton O’Leary of Wynne Paterson Limited. He undertook his survey on 14 August 2008 on instruction from Mr Haldane.

Mr O’Leary simply measured his heights as AMSL, assuming that Mr Gawn would confirm that this was the correct approach. Mr O’Leary’s report showed sharp increases in height and batter angles when compared to the 1999 figures measured by Mr Gawn.

[38] The relevant extract from the O’Leary report is as follows:

Levels

The current maximum level of fill on the site is 197.0m in the south eastern corner. Three well defined fill areas are defined at the top/south of the site. The reduced levels of these areas are approximately 196m, 190m and 186m.

The lowest point on the site, as located in this survey, was at the pipe inlet in the stream at the north west of the site. The reduced level of the pipe inlet is

132.48m.

Batters

Five batter slopes have been located in the survey. These are labelled A-E

on the topographical plan for easy reference in this report.

Batters A ranges from 135m to 187m, a total height of 52m. A track at the bottom of the batter provides access to the pipe inlet in the stream running from the north west. The grade of this batter is shown in three locations; 1 in

1.30, 1 in 1.00 and 1 in 1.27.

Batter C is located above the main access route, up to the active fill area. The maximum height of the fill is 31m at the eastern end off the batter, between levels 165m and 196m. The grade of this batter is shown at two points; 1 in 1.33 and 1 in 1.43.

Batter D is located below the active fill area and at the time of survey was

9m high, between levels 185m and 194m. The gradient of this batter is shown at one point; 1 in 1.20.

Batter E is an active face and at the time of the survey was occupied by irregularly dumped material. The topographical plan shows levels at the top and bottom of the edges, with contours interpolated between these points. No gradient has been calculated as no clear batter was formed. (my emphasis)

[39] For clarity, I note that a 1 in 1 slope is the equivalent of 45º and a 1 in 2 slope is approximately equal to a 30º slope.

The final Haldane report

[40] On 23 December 2008, Mr Haldane as leading consultant, provided his final report electronically with a hard copy in the mail. On the site’s vertical datum the report provides as follows:

A reference to the Site vertical datum is not included in the AEE. However, evidence dated 3 December 2008, prepared on behalf of WCC and GWRC by Brett Gawn of the Duffill Watts (hereafter referred to as the “Duffill Watts evidence”), confirms that the levels in the AEE are relative to the 1953

Wellington Mean Sea Level (MSL) datum. All subsequent discussions of levels or reduced levels (RLs) in this letter are relative to this datum.

[41] In respect of fill batter slopes, the report provided:

The survey results indicate that these representative fill batter slopes are in the range of approximately 1 in 1 to 1 in 1.43. These slopes are steeper than those outlined in the Design of the Fill Zone section of the AEE, which indicates that the fill batters shall be at a maximum slope of 1 in 2 or approximately 30 degrees (my emphasis).

[42] In respect of cut slopes, the report provided as follows:

The Design of the Fill Zone section of the AEE indicates that “[m]aterial can be removed as required provided that batter faces shall not be greater than

10 metres high without benching, batter slopes shall not exceed 70º and bench shall be not less than 5 metres wide.” During the survey assessment

undertaken as part of this investigation only a portion of the cut slope was surveyed due to heavy rains and potential unstable conditions. One of the surveyed cut areas, located at the south western portion of the cleanfill

operation, has a total height in excess of 20 metres. The angle of the cut slope is less than 70º in this area. However, as the cut slope is greater than

10 metres high the AEE indicates that the cut will be benched. Benching is not indicated in the survey results. (my emphasis)

[43] As to fill heights, it provided:

The survey results obtained during this investigation indicate three distinct benched fill areas at the southern end of the site. The approximate levels of these benched areas are 186, 190, and 196 m RL. The remainder of the Site slopes downward from these benched areas towards the north/northeast. The level of the access route located at the northeast portion of the Site is approximately 150 m RL and the level adjacent to the Site office is approximately 163 m RL. The lowest level measured at the Site is approximately 133 m RL adjacent to the culvert inlet at the northwest portion of the Site.

... The results of survey investigation indicate that the majority of the Site has levels in excess of 150 m RL with some levels exceeding this elevation by over 46 metres. This is corroborated by the Duffill Watts [Gawn] evidence (data circa 1999). (my emphasis)

[44] The hard copy of the Haldane report arrived at the Regional Council on

5 January 2009.

Gawn plus O’Leary

[45] Thus, the prosecution relied upon a combination of the 1999 survey work undertaken by Mr Gawn and written up in draft in December 2008 – it was this work that deduced that the RL levels were based on mean sea level – and the August 2008 assessment of current levels and angles undertaken by Mr O’Leary.

Decision

[46] With those facts firmly in mind, I turn back to consider the principles relevant to deciding when the councils knew or ought to have known about the breach. Tipping J put the applicable principle simply and with clarity in his judgment in Andrew Housing Limited v Southland District Council where he said:[2]

The key point about this [equivalent provision in the Summary Proceedings Act] is that time does not run against any of the listed parties unless they know about the contravention giving rise to the information or should have known of it. In effect the subsection creates an extension of time for the laying of an information when a territorial authority neither knows nor ought to have known about a contravention.

[47] At issue in the present case was the sufficiency of the evidence available to the respondents when having to decide whether to prosecute. As Judge Treadwell confirmed in Auckland Regional Council v Auckland City Council[3], the Council cannot sit back and wait for evidence to eventuate “in a more or less haphazard

_fashion”.

[48] Here, the Regional Council did not sit on its hands and wait for the evidence to come to it. Rather, the Council undertook an investigation in 2008, waited until it could resolve the crucial question of datum for the reduced levels used in the AEE, and then moved forward. The facts here are, in my view, quite different to those confronting Judge Treadwell in ARC v Auckland City Council[4] where the delay had been lengthy or indeed Tipping J in Andrew Housing where the delay had been a year. It was in my view, in order for the Council to await the final report of its lead advisor, Mr Haldane, before it can properly be said to have known or indeed ought to

have known of the contravention.

[49] It could be said that the heights were calculable once the Gawn draft was in on 11 December 2008, since the Gawn assessment of RL could have been combined with the O’Leary 2008 measurements. But the basis for prosecution in this case was rendered more complex than usual because of the potential ambiguity (and it must be said, lack of detail) in the AEE. This was not a clear cut case. And there was a matrix of potential problems with the operation – height, batter slopes and (although not proceeded on) the question of whether the landfill had been taking organic waste. The respondents must have been entitled to await the final advice of its lead provider before taking further steps. It was, after all, in the appellants’ interest that the respondents proceed cautiously and only once they were sure of their ground on what was a crucial element of the height related charges. Half-baked prosecutions are not in the interests of defendants or ratepayers.

[50] I accept therefore that for the purposes of s 338, the clock did not start ticking for the respondents until 23 December 2008. That was the date when the respondents’ lead provider and advisor collected all of the relevant evidence from his own research and that of his subcontracting surveyors.

_{[51] This ground must fail accordingly.}

The second argument: no evidence of offence on or about 23 December

[52] That said, it is important not to confuse the Regional Council’s knowledge of the offending – which comes together on 23 December 2008 – with evidence of the date of actual offending.

[53] The informations related to the activity of landfilling and the discharge of contaminants on the site. But the evidence does not relate to filling onsite on or about 23 December as particularised in the informations. The evidence relates to such acts on 14 August – the date of Mr O’Leary’s 2008 survey. It follows that there is no direct evidence of commission of the actus reus on, or about, 23 December. The learned Judge bridged this gap by accepting the councils’ submission that landfilling on or about the relevant date could be inferred from the O’Leary survey, the final URS report on 23 December and further evidence from Mr Faithfull of the Regional Council and Mr Barber of the City Council. That further evidence related to a subsequent site visit they and others made nearly six months later on 9 and 10

June 2009.

Arguments

[54] The respondent’s submission was that this offending was in the nature of a continuing offence. This allowed the court to scribe a line connecting the 14 August

2008 survey to the 9 and 10 June 2009 site visit. That connection drew in, by irresistible inference, the date of offending as particularised in the information. Essentially the argument was if there were landfilling on 14 August 2008, and it was confirmed as continuing on 9 and 10 June 2009, there must have been filling on or about 23 December 2008.

[55] The appellants argued that direct evidence of filling on or about the date in the information was required. It could not simply be inferred. What is more they argued that the respondents had to demonstrate breach of height and batter slope restrictions at the relevant time. In that respect, the appellants argue that the evidence relating to 9 and 10 June – the evidence given by Mr Faithfull from the Regional Council and Mr Barber from the City Council, did not relate either to

height or batter slopes. Rather, their evidence related to onsite tests of fill material being undertaken by teams under their direction. The councils were testing whether organic material was being tipped onsite in breach of the consents. The appellants argued none of that evidence was relevant to the informations ultimately laid.

Reverse onus

[56] It is crucial at this juncture to keep in mind that the respondents are required only to prove that BDL discharged contaminants to land in breach of Rule 10 of the Regional Plan and operated a landfill on the site in breach of Rule 17.3.2 of the District Plan.[5] Rule 10 provides that discharge of contaminants to land at a landfill is unlawful without a resource consent from Wellington City Council. Rule 17.3.2 provides that activities in open space areas (essentially, Council land) are unlawful

without a resource consent from Wellington Regional Council.

[57] It is not for the respondents to prove that the appellants’ breached the fill height and batter slope parameters of the consent. Rather, the combined effect of ss 9(3)(a) and 15(2)(b) RMA, and s 67(8) of the Summary Proceedings Act, is to place the onus on the appellants to put forward the existence of relevant resource

consents as a positive defence to the charges.[6]

[58] The burden on the respondents is to show beyond a reasonable doubt that filling took place on or about the relevant date. The burden on the appellants is to show, on the balance of probabilities, that what they did was “expressly allowed” by the terms of BDL’s resource consents. The parameter of what is “expressly allowed” is to be determined by reference to the supporting documentation filed with the

consent application – in particular the AEE.[7] As I have said, that is because

compliance with the constraints contained in the AEE is made an express condition of the consents.

[59] It follows that it is for the appellants to prove what is “expressly allowed” as set out in the AEE, and that they stayed within those limits when operating the landfill at the relevant time.

[60] In this case, the evidence directly demonstrates that filling activity and correlated discharge of contaminants was taking place at the site on 14 August 2008, and on 9 and 10 June 2009. Judge Kelly took the view that the appellants’ contention that there was no evidence of landfilling above 150 metres on the relevant day was:

... incredible and implausible in light of evidence that was not challenged that waste material was discharged to the C & D Landfill on an ongoing basis throughout 2008 and 2009.

[61] I agree with the Judge that this is a logical inference to draw. The evidence is clear that this was a working landfill throughout this period. I would add to the evidence relating to 14 August 2008 and that relating to 9 and 10 June 2009, the further evidence of the 8 April 2009 interview between Susan Smith and Mr Faithfull, both of the Regional Council, and the appellant Mr Burrell. At various points in that interview, Mr Burrell confirmed that there is an ongoing filling operation at the site. That interview was put in evidence and is admissible at least against Mr Burrell. In light of all of that evidence, the inference to be drawn is not just logical but, in my view, irresistible.

[62] I would have had far more difficulty accepting this evidence if it were for the respondents to prove breach of height and batter angles “on or about 23 December”. The evidence for this is very sparse – only that of Mr O’Leary four months before the alleged date. But the respondents do not need to prove that the landfill was over- height and over-steep. Rather, the reverse onus means that it was for the appellants to prove that it was not. Since the appellants called no evidence of their own and extracted no relevant concessions from the Council witnesses about filling activity simpliciter, the appellants have failed to discharge their onus.

[63] This ground must also fail.

The third argument: fill heights were not proved

[64] Here the appellants argued that the respondents had failed to demonstrate that the maximum fill heights in the AEE had in fact been exceeded.

[65] The first and crucial point is that it was not for the councils to prove this. The reverse onus meant that it was for the appellants to prove on the balance of probabilities that the height of the landfill did not exceed the AEE standard. This onus they failed to discharge.

[66] That said, Judge Kelly considered and accepted the evidence of Mr Gawn that the RL levels in the AEE were in fact based on a mean sea level datum. Mr Gawn’s evidence for that, as I have said, was his reliance on two points plotted on Figure 3 of the AEE that were still measurable in 1999. His evidence was the only credible evidence about the datum for the RL measurements. Thus, even if the respondents did have to prove that RL equalled AMSL, the only evidence available made that out to the appropriate standard. What else could the RL have been? The appellants offered no credible alternative explanation.

[67] In addition, Judge Kelly found support for this conclusion in the fact that in other parts of the AEE, AMSL levels were used. At paragraph 4.2.1 in the site description section, the AEE identifies the height of Hawkins Hill and the average level of the site itself using AMSL measurements. This may well have shown that the appellants’ engineer at the time was using the levels interchangeably. After all he was an engineer, not a surveyor. Certainly both sides agree that the AEE was drafted in very general terms offering little useful detail. It is not a document that would pass muster in 2012. Both sides are however stuck with its terms and as the Court of

Appeal said in the Gillies case,[8] interpretation of consent documentation is an

objective exercise and the question is what a reasonable observer confronted with the

AEE, would have made of it. In my view, the AEE is clear as to the maximum level of 150 metres RL.

[68] The appellants point to the management plan in clause .9 of the AEE and say that Judge Kelly and the councils ignored its terms. The argument appears to be that the way in which the management plan proposed to stage development over 25 years must have meant that the levels in the AEE related only to early development stages and not the longer term. This argument is not credible. As far as I can see, the management plan and the AEE design parameters contained in the “Design” section under the heading “Design of the Fill Zone” are entirely consistent. The fact that the management plan section is vague cannot logically detract from the specific parameters contained in an earlier section of the AEE.

[69] A further argument under this heading was that the possibility of over-height fill being removed from the site before filling ends could not be discounted. The learned Judge was right to reject that suggestion. First, as she said, there was no evidence to that effect. Second, given the degree of overfilling, the idea that tens of thousands of tonnes of fill could be shifted to another place is just not credible. Where would it go? How could the appellants shift the material without incurring unsustainable costs in doing so? There was no evidence on these matters.

[70] This ground must fail accordingly.

The fourth argument: batter slopes

[71] There were, effectively, four subgrounds here.

(a) Wrong particulars given by respondents

[72] By letter of 28 June 2010 the respondents’ counsel provided particulars of the

breaches alleged onsite. In part the letter provided:

Accordingly, it is confirmed by way of further particulars that the evidence will establish that the activity does not comply with the existing consents in the following respects:

(1) waste material is above 150 metres RL; (2) batter slopes exceed 70º.

[73] The appellants say the reference to batter slopes must have been a reference to cut batter slopes since they were the only slopes subject to a 70º constraint in the AEE. Fill batter slopes were by contrast required to be no steeper than 30º.

[74] The appellants argue that the respondents are bound by that particular, and cannot then level allegations in respect of fill batter slopes. It is common ground that there was no evidence of breach of the required cut batter slope angles.

[75] The respondents argue that they are not bound by the particulars provided in the way suggested. They point to the caveat set out earlier in the particulars letter in these terms:

However, it is established law that the informant is not required to prove that the activity is not authorised by existing resource consent(s). It follows that particulars relating to how the terms of existing resource consents are exceeded are not strictly necessary to address as part of the charge.

[76] Once again the difficulty the appellants face is the reverse onus. The charges simply state (as they are entitled to do) that there has been a breach of each of the relevant rules in relation to the discharge of contaminants and the operation of a landfill.

[77] The particulars provided by the respondents relate to one possible affirmative defence that might be available to the appellants. It is not a matter that the respondents have to prove as part of the actus reus. It is in that way illogical to argue that the respondents are bound by that particular. It is not, strictly speaking, their particular. To put it in another way, once the councils prove beyond a reasonable doubt that on or about 23 December 2008 the appellants discharged contaminants to land at the site and operated a landfill there, the court is bound to enter a conviction unless the appellants succeed in proving their affirmative defences on the balance of probabilities.

[78] The decision in Auckland Regional Council v URS[9] is called in aid by the appellants, but that decision does not help them. That case related to particulars of

the actus reus. It did not relate to the circumstance in this case, where the

respondents have given particulars of the appellants’ own defence.

[79] Having said that, it was singularly unhelpful for the respondents’ counsel to provide to the appellants particulars of affirmative defences only the appellants could put. It would, on reflection, have been better for the respondents simply to give particulars of the relevant actus reus, and to have stayed well away from heights and batter slopes. But that does not change the fact, as explained in the 28 June letter, that it was for the appellants to prove that they were operating within the parameter of the consent. It is conceptually unsound to argue that the respondents were somehow bound by a representation made about a particular relating to a possible affirmative defence.

(b) The batters were built before 1995

[80] Under this heading, the appellants argued that it was a reasonable possibility that the offending batter slopes predated the current consents – that is they were established 23 years before the informations were laid. There was therefore a reasonable possibility that the 1995 consent conditions did not apply.

[81] There are many problems with this argument. As Judge Kelly indicated, there was no evidence to that effect. And in any event, ongoing filling onsite (which the Judge found proved) would still breach the Act and relevant Plans.

[82] In addition, this scenario does not seem at all to be a reasonable possibility. In the April interview the appellant Mr Burrell said to Ms Smith:

We’re very careful about our batters and all the rest of it. We build them with tangled concrete and whatever. Yes, they are mostly steeper than the consent holds but most of them are work in progress. In other words they’ll be steep today but in a year’s time they’ll then be filled over. This happens all the time.

[83] There does not appear to be any real prospect in light of Mr Burrell’s

statement that batter slopes could last for 23 years without having been buried by

ongoing fill activity. This is corroborated by the massive changes in height across the site in the period from 1995 until 2008.

[84] In the (perhaps unlikely) event that the base of any of the batters established in 1995 was still visible in 2008, these batter angles must logically continue using more recent fill anyway. This must mean that any fill deposited after 1995 onto an exposed batter, must also be in breach because it must logically be utilising the same batter angle. There can be no doubt that all batter slopes onsite have been built up over the years since 1995. Mr O’Leary’s evidence makes that clear.

[85] Finally, and again most importantly, the angle is a question of defence not an aspect of the actus reus. Any evidence of deposition after 1995 is evidence of a breach of s 338(1)(a). Unless the appellants can demonstrate compliance with consents, that evidence alone is sufficient to found a conviction.

(c) Daily slope management could exceed 30º

[86] Under two separate headings, the appellants argued that the AEE referred only to final batter angles and not to angles established in the course of daily management of landfill. They pointed to the fact that batter slopes once established will subside between 10 and 20 percent over time as the fill material settles. The appellants also pointed to the need to start with steep batters and then rework them progressively over time to render the angles compliant. Batter angles are a work in progress until closure of the tip, was the essential argument.

[87] Once again, these arguments are a red herring because they amount to no more than the appellants defending a defence that was never properly put in the first place. But even if that is wrong, the problem for the appellants is that the AEE does not contain the management detail that they now, belatedly on appeal, plead. The AEE simply refers to fill batter angles at 30º. That document should have had a better and more detailed management plan explaining the need for steeper batters during the course of filling if that were the case. A modern AEE would have. But the fact is, this AEE does not contain any such explanation and makes no reference to different parameters in relation to daily site management. Without it, all the

regulator (and indeed the courts) can rely on are the batter angles expressly included in the AEE for fill batters and cut batters.

(d) Insufficient evidence of over-steep angles

[88] Once again this argument puts the cart before the horse. It was for the appellants to demonstrate positively, on the balance of probabilities, that the batter angles contained in the AEE had not been exceeded. This they failed to do.

[89] Here the argument is that there was no evidence that all of the batter slopes were active on or about the relevant date. The evidence from Mr O’Leary was that one slope was active during his visit. Mr Faithfull’s evidence was that he had seen machinery operating on the site during his visit. I assume that filling is undertaken methodically working one face at a time. Evidence of active filling at the site is all that was required.

[90] In light of the foregoing, all arguments relating to batter slopes must fail.

The fifth argument: abuse of process

[91] This ground relates to additional council documents only disclosed to the appellants after the first instance hearing and admitted on appeal that were, the appellants say, relevant and material to the appellants’ defence. The appellants plead miscarriage of justice and breach of the New Zealand Bill of Rights Act 1990.

[92] These documents related to the period from July to December 2008 and the state of knowledge of council officials in respect of the onsite levels. The appellants argue that these documents showed that well before 23 December “all the informants were waiting for was further corroborative information of what they already knew”. The appellants say lack of access to these documents during trial was highly prejudicial to the conduct of their case.

[93] For the reasons I have isolated in my discussion of the appellants’ first

argument, I do not agree that those documents did make, or could have made, a

difference in this appeal. On the contrary, in my view, these documents help to demonstrate that the respondents were uncertain as to the appropriate levels onsite right up until December 2008. While the respondents should have released them, the appellants cannot demonstrate a miscarriage of justice, because they would not, in my view, have made a difference. They may, as counsel for the appellants suggests, have led to him spend more time in cross-examining around these matters, but the documents do not in the end support the appellants’ contention.

[94] Although counsel cited the case, I do not consider that R v Gutuama[10] assists the appellants here. The undisclosed document in that case was directly relevant and, on its terms, undercut the prosecution case. The case was “finally balanced”, to use Fisher J’s phrase, for reasons unrelated to the evidence at issue in that case. The court’s point was, it would have taken very little to tip the prosecution over, and in those circumstances, non-disclosure of directly relevant material could not be countenanced. That is very far from the situation in the present case where the documents do not, in my view, demonstrate that the respondents had settled knowledge of the levels prior to 23 December 2008.

[95] This ground must fail accordingly.

Conclusion and judgment

_{[96] For all of the foregoing reasons, the appeal must be dismissed.}

_{Williams J}

---

[1] At [37].
[2] _{Andrew Housing Limited v Southland District Council [1996] 1 NZLR 589 (HC) at 594.}
[3] Auckland Regional Council v Auckland City Council [1997[ NZRMA 300 (DC) at p7.

[4] Auckland Regional Council v Auckland City Council [1997[ NZRMA 300 (DC).
[5] See generally s 338(1)(a). In respect of Mr Burrell there was the additional requirement in relation to his knowledge of acquiescence in BDL’s offending, but no issue arises in this appeal in relation to that mental element.

[6] See for example Gillies Waiheke Limited v Auckland City Council [2004] NZCA 32; [2004] NZRMA 385 (CA) at [28]

_{and the long line of decisions cited there.}

[7] Ibid at [22].

[8] Cullier Waiheke Ltd v Auckland City Council at [23].

[9] Auckland Regional Council v URS [2009] DCR 227.

[10] R v Gutuama, CA 275/01; 13 December 2001.