Auckland Regional Council v Holmes Logging Ltd and Kenneth Angus Holmes Hc Ak Cri

JurisdictionNew Zealand
CourtHigh Court
JudgeWoodhouse J
Judgment Date17 Jun 2010
Neutral Citation[2010] NZHC 960
Docket NumberCRI 2009-404-35 CRI 2009-404-37

[2010] NZHC 960

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2009-404-35

CRI 2009-404-36

CRI 2009-404-37

Auckland Regional Council
Appellant
and
Holmes Logging Limited and Kenneth Angus Holmes
Respondents
Appearances:

J C Gordon SC and M Harborow for the Applicant

P M Fee and M Atkinson for the Respondents

JUDGMENT OF Woodhouse J

1

The appellant Council laid a number of charges in the District Court against the respondents, and one other defendant, under the Resource Management Act 1991 (the Act). These charges concerned logging activities by Holmes Logging and rules in the Council's regional plan for sediment control and, in respect of those matters, alleged contravention of ss 9 and 15 of the Act and of an abatement notice. All charges were dismissed by Judge Thompson.

2

The Council has brought an appeal on points of law by way of a case stated under s 107 of the Summary Proceedings Act 1957.

The charges, statutory provisions and procedural background
3

The charges were laid on 12 December 2006 against Holmes Logging, Mr Holmes, a director of Holmes Logging, and the operations manager of Holmes Logging. The operations manager was named as a respondent in this Court. He died in January 2009 and his name has been removed from the proceeding. Although charges were brought separately against Holmes Logging and Mr Holmes, it is not necessary to distinguish between them.

4

The charges relevant on the case stated are charges under ss 9(3)(a), 15(1)(a) and 15(1)(b) of the Act. The provisions in force at the time 1 are as follows:

9 Restrictions on use of land

  • (3) No person may use any land in a manner that contravenes a rule in a regional plan or a proposed regional plan unless that activity is-

  • (a) Expressly allowed by a resource consent granted by the regional council responsible for the plan; or

15 Discharge of contaminants into environment

  • (1) No person may discharge any-

    • (a) Contaminant or water into water; or

    • (b) Contaminant onto or into land in circumstances which may result in that contaminant (or any other contaminant emanating as a result of natural processes from that contaminant) entering water; or

  • unless the discharge is expressly allowed by a rule in a regional plan and in any relevant proposed regional plan, a resource consent, or regulations.

5

The charges under s 9(3) were that the respondents contravened the provision by undertaking “land disturbing activities” (logging), or permitting those activities, in a manner that contravened a specified rule in the “Auckland Regional Plan: Sediment Control” when the activity was not expressly allowed by a resource consent (or pursuant to s 20A of the Act, which has no relevance on this appeal). The charges related to two separate sites in the Mahurangi Forest north of Auckland, known as Moirs Hill Road and Gully Road.

6

The charges under ss 15(1)(a) and (b) were that the respondents discharged, or permitted discharge, of a contaminant, “namely sediment”, into the Puhoi River, in respect of the Gully Road site, and into “unnamed tributaries of the right branch of the Mahurangi River”, in respect of the Moirs Hill Road site, or onto land in circumstances which may have resulted in the contaminant entering one or other of the specified waterways.

7

There was a defended hearing in the District Court over four days to 22 May 2008, followed by written submissions from both parties filed on 28 May 2008. Judge Thompson delivered a judgment the following day, 29 May 2008, dismissing all charges.

8

On 11 June 2008 the Council filed a notice of its intention to appeal by way of case stated. The Council also filed an application for an extension of the standard 14 days time limit for filing a draft case stated pursuant to s 107(3) of the Summary Proceedings Act 1957 and this was granted.

9

A number of drafts of a case stated were filed by the appellant in the District Court before the Judge signed a formal case stated on 2 February 2009. There was then an application by the respondents to this Court for an order that the case stated be referred back to the Judge for amendment. This led to a judgment of Winkelmann J dated 1 May 2009, referral of the case stated back to the Judge, and further amendment until the case stated was settled on 4 June 2009.

The regional plan
10

Section 5.4 of the Council's regional plan for sediment control is central to a number of the questions. The plan is part of the case stated. The broad structure of section 5.4, and relevant provisions in it, are set out in the following paragraphs.

11

The introduction to section 5.4 is as follows:

5.4 Rules Relating To Section 9 Of The RM Act

Land Uses

This Plan provides rules for land disturbing activities. No person may use land for the land disturbing activities specified in section

5.4 – Tables A, B and C of this Plan unless resource consent is obtained, or it is specified under the Permitted Activities that a resource consent is not required.

Section 9 of the Act provides that other land use activities are not controlled by this Plan.

The rules for land disturbing activities specify permitted, controlled and restricted discretionary activities.

12

Sub-section 5.4.1 prescribes rules for four types of activity which may be permitted in defined circumstances. The activities of relevance in this case are vegetation removal, earthworks, and roading and tracking. For convenience I will generally refer to “roading and tracking” simply as “roading”.

13

Permitted activity rule 5.4.1.1 specifies, in Table A, activities that are or may be permitted. All vegetation removal is permitted, subject to compliance with conditions in rule 5.4.1.2. Earthworks and roading are permitted activities provided the scope of the activities does not exceed limits specified in Table A. The limits are defined by dimensions, such as the area of the works and the length of roading, and with different limits depending on the proximity of the earthworks and roading to a watercourse or wetland.

14

Permitted activity rule 5.4.1.2 prescribes conditions. This rule was given some emphasis by the Judge. Condition 2 is directly relevant to questions C and D, and generally relevant by way of background. It is as follows:

Effective erosion and sediment control measures shall be implemented to minimise erosion and sediment discharge from the operation. These measures shall be implemented on any disturbed areas where sediment is likely to wash to watercourses and/or channels which contain stable pools, and shall remain in place until the area of operation is stabilised in accordance with Condition 3.

Any sediment control measures shall be monitored on a weekly basis during operations within the area draining to it and cleaned out when it is observed to be greater then [sic] 50% full of sediment. Materials extracted from the sediment control measures shall be deposited in a position from which they cannot wash to any watercourse and/or channels which contain stable pools.

Explanation

One or more erosion and sediment controls may be implemented to assist in ensuring the activity is carried out in accordance with Condition 2 above.

Such examples include:

  • (i) Sediment Retention Ponds

  • (ii) Silt Fences

  • (iii) Contour Drains

  • (iv) Runoff Diversion Channels

  • (v) Slash Bunds

These measures should be implemented in accordance with “Erosion and Sediment Control Guidelines for Land Disturbing Activities for the Auckland Region”, Auckland Regional Council Technical Publication Number 90, available from Auckland Regional Council. These Guidelines also contain further erosion and sediment control measures, which may also be implemented.

15

Sub-sections 5.4. 2 and 5.4.3 are concerned with “Controlled Activities” and “Restricted Discretionary Activities” respectively. Controlled and restricted discretionary activities are again defined by reference to dimensions, and some other criteria set out in tables, and relating to the scope of the earthworks and roading. The charges under s 9(3) alleged contravention of the restricted discretionary activity rules contained in 5.4.3.

The case stated : Summary of facts found and of some evidence
16

The case stated records the following:

  • 3.3 It was proved upon hearing that:

    General

    • (a) Kenneth Angus Holmes is a director of Holmes Logging Limited and was responsible for its overall management. 2

    • (b) In 2005, Holmes Logging Limited acquired the logging rights for areas of production forest in the Mahurangi Forest near Warkworth. Two separate areas of the forest were involved. One was known as Gully Road and the other known as Moirs Hill.

    • (c) The defendants began work at the Gully Road site on or about 8 August 2006. The defendants began work at the Moirs Hill site on or about 20 February 2006.

      Section 9 charges

    • (d) The Auckland Regional Plan: Sediment Control became operative in 2001.

    • (e) Vegetation removal was undertaken by the defendants at both Gully Road and Moirs Hill.

    • (f) In relation to vegetation removal erosion and sediment control measures, the defendants did not comply with the TP90 3 provisions in terms of dimensions and capacities of the various structures put in place by them on the two sites.

    • (g) Earthworks and roading and tracking was undertaken by the defendants at both Gully Road and Moirs Hill.

    • (h) At Gully Road the total length of the bladed haul tracks was 2,505 metres. The total area of the bladed haul tracks was 16,890 m 2. The total area of the landings was 9,000 m 2. The total length of the haul tracks and other soil disturbance was 535 metres. The total area of the other haul tracks and other soil disturbance was 3,210 m 2.

    • (i) At Moirs Hill the...

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