Awarua Farm (Marlborough) Ltd v Marlborough District Council

• Jurisdiction: New Zealand
• Judge: Goddard J
• Judgment Date: 18 September 2014
• Neutral Citation: [2014] NZHC 2264
• Docket Number: CIV-2014-406-23
• Court: High Court
• Date: 18 September 2014

UNDER Section 299 of the Resource Management Act 1991

BETWEEN

Awarua Farm (Marlborough) LIMITED

First Appellant

Philip John Woolley

Second Appellant

and

Marlborough District Council

Respondent

[2014] NZHC 2264

CIV-2014-406-23

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

Appeal against three decisions of the Environment Court (“EC”) relating to enforcement orders — EC held that appellants' farm was operating in breach of s15 RMA (discharge of contaminants into environment) and s17 RMA (duty to avoid, remedy, or mitigate adverse effects) and that effluent was not being discharged in accordance with a resource consent — application for consent had stated that effluent management system storage of 100 m3 would be sufficient — EC found that raceways were in poor condition, leading to significant ponding of effluent and water which then escaped to enter into the waterways — held that that discharge of effluent and mud onto nearby paddocks, the road, and into waterways was governed by s15 RMA — issued enforcement orders relating to design, implementation and management of the effluent system which included doubling storage capacity — whether the enforcement orders pursuant to s314 Resource Management Act 1991 (“RMA”) (scope of enforcement order) — whether the appellants were protected by s319(2) RMA (person was acting in accordance with a resource consent or the adverse effects were recognised) — whether the Council should have used its review powers under s128 instead of applying for enforcement orders — whether the appellants had breached s15 RMA.

Counsel:

D J Clark for Appellants

P J Radich and M J Radich for Respondent

JUDGMENT OF Goddard J

Introduction

1 This appeal relates to three decisions of the Environment Court (the Court) concerning a farm operated by the appellants. The second appellant is Mr Woolley and the first appellant is his company, Awarua Farm (Marlborough) Ltd. 1 Mr Woolley is a dairy farmer in Marlborough with two dairying operations, one at Awarua Farm near Tuamarina (Awarua Farm) and the other at Glenmae in the Wairau Valley (the Glenmae Farm). In its third decision, the Court issued a range of enforcement orders against the appellants in relation to the Awarua Farm. 2

2 The issues on appeal can be divided in three separate headings:

• (a) whether the Court had jurisdiction to make enforcement orders 1-4 pursuant to ss 314 and 319 of the Resource Management Act 1991 (the RMA);

• (b) whether the Court correctly found the appellants to be in breach of s 15 of the RMA (relating to enforcement orders 5 and 9); and

• (c) whether the Court had the power to issue enforcement orders 6-8, 10 and 11.

3 The day before the hearing, the appellants urgently applied for a stay of the enforcement orders. That application is addressed at this end of the decision.

Background

4 The Awarua Farm has a high water table, particularly during winter. The farm keeps dairy cattle in summer and is rested in winter to avoid soil compaction 3 and destruction of the pasture. The farm is reliant on drainage due to its proximity to

the Wairau River and the redirection of the Pukaka River into a drain to the east of the farm. In winter, the water level in those drains approaches ground level

5 The discharge of effluent from the farm is a discretionary activity and requires resource consent. 4 In 2004 the appellants made a resource consent application under s 88 of the RMA. It stated that the effluent management system had a storage capacity of 100 cubic metres. 5 The assessment of environmental effects that accompanied the application stated that the discharge of effluent by the proposed effluent management system would have “little or no effect on the environment”; that “run-off to any water courses … is unlikely to occur”; and that the system could handle “both the present volume and up to nearly twice the amount”.

6 A report by a resource management officer on the application noted that “it is not anticipated that there will be a discharge, either directly or indirectly to water” and that “with proactive management the effect of this discharge is not anticipated to be any more than minor”. Resource consent was granted on 14 December 2005. Condition two of the resource consent requires the consent to be conducted in accordance with the application.

7 The farm's effluent management system is central to the appeal. The system drains effluent from the washdown of the yard into several catchment drains. Those catchment drains flow to a small sump that connects via an underfloor drainage system to a concrete sump beneath the floor of a piggery sty. The concrete sump has a pump unit with a stirrer attached. The pump unit is attached to external piping that discharges effluent via an irrigator. Since the release of the Court's third decision 6

and the issue of enforcement orders, three effluent containers with a combined capacity of 90 cubic metres have been connected to the system.

8 On 25 March 2013, the respondent, Marlborough City Council (the Council) applied for enforcement orders against the appellants in relation to several issues, including the effluent management system.

The Environment Court decisions

9 The first decision was released on 30 August 2013. 7 The Court held that the farm was operating in breach of ss 15 and 17 of the RMA; that dairy effluent was not being discharged in accordance with the resource consent application; and that the offal pits on the farm were in breach of the Wairau Awatere Resource Management Plan (the Wairau Awatere Plan). 8

10 Of particular importance to this appeal was the indication that the storage capacity of the farm's effluent management system was less than the 100 cubic metres claimed in the resource consent application. The Environment Court was satisfied that there were periods when the sump and pigsty overflowed and effluent travelled onto nearby races and ponded in low lying areas before discharging into nearby fields and possibly into adjacent farm drains. Because the resource consent application stated that 100 cubic metres of storage were available, and because it did not allow for overflow of washdown around the sump or ponding in fields, the discharge of effluent was in breach of condition two of the resource consent.

11 The Court considered that the established breaches provided it with broad powers to undertake an extensive review and impose more requirements under the resource consent. However, it accepted that the starting point was whether compliance with the existing consent was possible.

12 With these factors in mind, the Court issued a draft enforcement order, preventing the appellants from discharging effluent until the effluent management facilities were certified as being capable of accommodating washdown from three days of effluent without overflow from the sump or piggery drainage system. The Court reasoned that the certification regime would give the appellants the opportunity to comply with the conditions of the resource consent while preventing any continued adverse effects to the environment. 9 The parties were given ten working days to comment on the orders before they were finalised.

13 The second decision was released on 1 October 2013. 10 By that date, the Court had had the benefit of weekly inspection reports, in addition to a report from GHW Global confirming the farm did not have an effluent management system capable of supporting 700 milking cows. The Court found this report underlined the grounds for an enforcement order on the basis that incorrect information had been supplied. 11

14 Despite its finding that the inspections demonstrated “a serious and on-going compliance situation” on the farm that needed to be “addressed urgently”, 12 the Court decided to give the appellants a further opportunity to provide evidence that the conditions of the resource consent could be met. The Court also indicated that if the appellants did produce such evidence, further orders would follow:

• [10] To suggest that certification is not required, is not acceptable to this Court. It is for Mr Woolley to establish, given the clear evidence to the contrary at the current time, that this farm can comply with its existing consent, or this Court will make enforcement orders reducing the level of stock to a level where certification can be achieved.

• …

• [30] If a satisfactory outcome is not identified in the certification or report, or there remains significant disagreement with the course of action proposed from the Council, the Court will need to consider an urgent hearing and/or further interim orders on the papers or by hearing, as necessary.

15 The issue of compliance remained unresolved and a further hearing was required on 20 March 2014 to review the interim enforcement orders.

16 The Court released its third decision on 17 April 2014. The Court was not satisfied that the farm could meet consent conditions and the RMA requirements with the volume of effluent storage available at the time. Nor was it satisfied that the existing effluent sump could be used without adverse environmental impacts arising to which there had been no consent.

17 The Court held that in order to comply with the resource consent, the RMA and the Wairau Awatere Plan, the effluent management system must be capable of handling volume equivalent to three days of effluent washdown. Having heard expert evidence from both sides on the issue, the Court found that approximately 210 cubic metres of storage was the absolute minimum that would be required. This was a conservative calculation, given the experts' agreed calculation of a minimum storage volume of 360 cubic metres.

18 The Court reluctantly concluded that the farm was capable of adhering to...