Brian John Warburton v Porirua City Council

JurisdictionNew Zealand
CourtEnvironment Court
JudgeB P Dwyer,J R Mills,D Kernohan
Judgment Date08 August 2013
Neutral Citation[2013] NZEnvC 179
Docket NumberENV-2012-WLG-000074
Date08 August 2013

In the Matter of an Application for Declarations Pursuant to s311 of the Resource Management Act 1991

BETWEEN
Brian John Warburton
Applicant
and
Porirua City Council
First Respondent 1

and

Wellington Regional Council
Second Respondent

Decision No: [2013]NZEnvC 179

Court:

Environment Judge B P Dwyer

Environment Commissioner J R Mills

Environment Commissioner D Kernohan

ENV-2012-WLG-000074

BEFORE THE ENVIRONMENT COURT

Application for declarations under s311 Resource Management Act 1991 (“RMA”)(declaration) that a watercourse across the foreshore of Titahi Bay was a “river” as defined by s2 RMA (interpretation) and that the respondent Council had breached s13(1)(d) RMA (restriction on certain uses of beds of lakes and rivers — deposit any substance on the bed) by placing materials including quarried rock in its bed — watercourse was the end point of an extensive storm water/drainage system which discharged across foreshore — 91 per cent of it was piped and significant parts of it were established quite independently from the original natural watercourse — whether the watercourse was a river-whether it was an artificial or modified watercourse — whether the section of water flowing across the foreshore was a river in its own right.

Counsel:

T Bennion for the Applicant

J Winchester and J McGcttigan for Porirua City Council

K Anderson and M Booth for Wellington Regional Council

  • A: Application for declarations declined

  • B: Costs reserved

DECISION ON APPLICATION FOR DECLARATIONS
Introduction
1

Brian John Warbnrton (Mr Warburton) seeks declarations from the Court pursuant to s311 Resource Management Act 1991 (RMA) in the following terms:

Declarations Sought
  • a) That the placement by Porirua City Council (on or about 18th to 20th March 2012) of “rip-rap” material, including quarried rock (“the material”), in the bed of a watercourse (“the stream”) located between the seaward outfall end of a adverted or piped section of the stream and the landward boundary of the coastal marine area at South Beach Access Road, Titahi Bay, is an activity that is regulated by section 13 of the Resource Management Act (“the Act”).

  • b) That in placing the material in the bed of the stream, Porirua City Council has breached section 13(1) of the Act because:

    • i. The activity is not expressly allowed in a national environmental standard;

    • ii. The activity is not expressly allowed in a regional plan; and,

    • iii. Porirua City Council when it undertook the activity had not obtained a resource consent to enable it to do so.

  • c) That Porirua City Council is required to:

    • i. obtain a land use consent for the placement of the material in the bed of the stream; or,

    • ii. remove the material from (he bed of the stream.

  • d) That Wellington Regional Council is required to take enforcement actions under the Act to ensure that Porirua City Council:

    • i. removes the material from the bed of the stream; or,

    • ii. obtains a land use consent for the placement of the material in the bed of the stream, and any associated diversion and/or damming of water.

2

It will be seen from the above that the declarations are sought in relation to work carried out by Porirua City Council (the City Council) at Titahi Bay, The other party to the proceedings, the Wellington Regional Council (the Regional Council), is e regional authority having jurisdiction over the area in question.

3

The determinative issue in these proceedings is whether a watercourse across the foreshore at Titahi Bay is a river (as defined in s2 RMA) so that the land over which that watercourse flows is the bed of a river and subject to controls under sl3 RMA. We will expand on that issue in due course.

Background
4

As part of the pre-trial process, the parties prepared a comprehensive joint statement of agreed facts (the Joint Statement). The Joint Statement ran to 41 paragraphs and additionally included 11 Annexures which extended to over 50 pages of photographs, maps and plans incorporating historic and current information. Our hearing proceeded on the basis that the Joint Statement was the only evidence received by the Court and the parties' submissions were based on that Statement. The Court is grateful for the parties' co-operation in that regard.

5

The flow of water across the foreshore is the end point of an extensive storm water/drainage system at Titahi Bay which we will describe in more detail shortly. In the Joint Statement the parties referred to this storm water/drainage system (including the flow across the foreshore) as the Watercourse and so will we for the balance of this decision.

6

The Watercourse across the foreshore emanates from a storm water pipe which discharges at Titahi Bay. The Watercourse flows across the foreshore from the mouth of the storm water pipe towards the Tasman Sea. The evidence which we heard established that the flow path of the Watercourse on the foreshore probably follows the flow path of Kapakapanui Creek which was identified as flowing across the foreshore at this point as long ago as 1873 in a survey by Wyles and Buck 2.

7

The photographs which we saw showed that the Watercourse presently follows a discernible path across the foreshore formed by rip-rap (quarry rock and compacted gravels) together with compacted and contoured beach sand. We understand that the present form of the Watercourse is the result of the works

declaration proceedings. We were not given sufficient evidence to enable us to establish the condition of the Watercourse prior to the works, although we understood there to have been a discernible and discrete flow of water across the foreshore from the storm water pipe
8

The photographic evidence of the current situation suggests that the Watercourse is somewhere in the order of five metres in width and some tens of metres in length, although Counsel were unable to give us precise dimensions.

9

The Joint Statement records that:

8. Once the Watercourse exits the stormwater pipe it flows over the foreshore towards the Tasman Sea. The length of the flow path over the foreshore is related to several factors including: the flow rate; the moisture content of the beach material; prevailing and preceding weather conditions, and tidal influences. During storm conditions, in combination with a high tide, this area can be completely covered by the sea.

10

Counsel agreed that the area where the City Council undertook the works is above mean high water springs (notwithstanding its inundation in storm conditions) and is therefore outside the coastal marine area.

11

There was no dispute that between 18 and 20 March 2012, the City Council undertook works in the Watercourse. Those works comprised the clearing of organic detritus, laying rip-rap and compacting beach sand in and around the Watercourse.

12

Nor did we understand there to be any dispute that if the Watercourse constituted the bed of a river, a resource consent was required to undertake the work as a consequence of sl3(l)(d) RMA, which relevantly provides:

13 Restriction on certain uses of beds of lakes and fivers

  • (I) No person may, in relation to the bed of any lake or river, -

    • (d) Deposit any substance in, on, or under the bed; unless expressly allowed by a national environmental standard, a rule in a regional plan as well as a rule in a proposed regional plan for the same region (if there is one), or a resource consent.

13

The Joint Statement records that:

  • • There is no provision in a national environmental standard that expressly allows the activity undertaken by the City Council;

  • • There is no provision in the Wellington Regional Freshwater Plan that expressly allows the activity undertaken by the City Council;

  • • The City Council has not obtained a resource consent from the Regional Council allowing it to undertake the activity.

14

In short, it is not disputed that if the Watercourse where the City Council undertook the works constitutes the bed of a river, then the works contravene sl3(l)(d). The determinative issue in these proceedings is whether or not the Watercourse is in fact the bed of a river in the area where the works were undertaken. Mr Warburton contended that it is and the City Council and Regional Council contended that it is not.

Definitions of Bed and River
15

Section 2 RMA defines the bed of a river in these terms:

Bed means ,

  • (a) In relation to any river -

    • (i) For (he purposes of esplanade reserves, esplanade strips, and subdivision, the space of land which the waters of the river cover at its annual fullest flow without overtopping its banks:

    • (ii) In all other cases, the space of land which the waters of the rivet-cover at its fullest flow without overtopping its banks;

16

We did not understand there to be any dispute between the parties that if the Watercourse constituted a river where it flowed across the foreshore then the land where the works were done was the bed of that river.

17

Section 2 defines river in these terms:

river means a continually or intermittently flowing body of fresh water; and includes a stream and modified watercourse; but does not include any artificial watercourse (including an irrigation canal, water supply race, canal for the supply of water for electricity power generation, and farm drainage canal) .

18

Fundamental to determining the status of the Watercourse where it flows across the foreshore, is a determination of the status of the wider water system which discharges water onto the beach. Counsel for Mr Warburton contended that this system was a modified watercourse (which constitutes a river as defined) whereas Counsel for the City Council and Regional Council both contended that it was at best an artificial watercourse and thereby excluded from the definition of a river.

The Watercourse
19

The Joint Statement records that the catchment which discharges water...

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