Brian John Warburton v Porirua City Council
Decision No: NZEnvC 179
BEFORE THE ENVIRONMENT COURT
Environment Judge B P Dwyer
Environment Commissioner J R Mills
Environment Commissioner D Kernohan
In the Matter of an Application for Declarations Pursuant to s311 of the Resource Management Act 1991
T Bennion for the Applicant
J Winchester and J McGcttigan for Porirua City Council
K Anderson and M Booth for Wellington Regional Council
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.
The issues were: whether the watercourse was a river as defined by s2 RMA; whether it was an artificial or modified watercourse; and, whether the section of water flowing across the foreshore was a river in its own right.
Held: Section 2 RMA (interpretation) defined a river as a continually or intermittently flowing body of fresh water and included a stream and modified watercourse but did not include any artificial watercourse. Section 2 RMA defined the bed of a river as the space of land which the waters of the river covered at its annual fullest flow without overtopping its banks and in all other cases, the space of land which the waters of the river covered at its fullest flow without overtopping its banks.
While the watercourse followed in part the original natural watercourses, 91.3 % was piped and of the three remaining non-piped sections, only one followed the original natural watercourse. The contention that this was a modified watercourse as opposed to an artificial one was misplaced. The terms modified watercourse and artificial watercourse were descriptions of types of continually or intermittently flowing bodies of fresh water contained in the definition or river. In this case there was no continually or intermittently flowing body of fresh water to begin with. Sub para (c) of the definition of water in s2 provided that “water” did not include water in any form while in any pipe. The water contained in the piped storm water system at Titahi Bay was not water for the purposes of those provisions of RMA and did not constitute a “continually or intermittently flowing body of fresh water” which was the underlying requirement for there to be a river.
In the alternative, the Council argued that the watercourse was an artificial watercourse and the section across the foreshore was an extension of this and therefore not a river so that the land containing it was not the bed of a river. Arguably if the watercourse was a modified watercourse (and hence a river) the section of the watercourse across the foreshore is part of that river and the land containing it was the bed of a river. However this left the further question of whether the section flowing across the foreshore should be considered to be a river in its own right.
The RMA did not define any of the terms watercourse, modified watercourse and artificial watercourse. There was no overarching test in the case law for determining whether a watercourse was modified or artificial. It would be determined on the facts and context and there may some cases where there was a grey area. This was not however one of them. The evidence was overwhelming that the watercourse was an artificial watercourse — 91.3 % of it was piped and significant parts of it were established quite independently from the original natural watercourses. The watercourse was a piped urban storm water reticulation system which had subsumed the previously existing natural watercourses in the catchment.
The source of water in any particular watercourse might be a highly significant factor in determining whether that watercourse was modified or artificial but it was not of any particular relevance in the case of this piped reticulation system for the above reasons.
It was clear that:
at the point at which it flowed out of the storm water pipe and onto the foreshore at Titahi Bay the (non) water in the piped storm water system become fresh water;
the flow of water across the beach from the point of discharge to the point at which it reached the catchment area was a body of fresh water (albeit a very small body of fresh water).
Considered in accordance with the natural and ordinary meaning of the words in s2 RMA, the small body of water which flowedfrom the storm water pipe across the foreshore arguably constituted a continually or intermittently flowing body of fresh water and thereby fell within the definition of a river so that the land over which it flowed constituted river bed. The RMA did not contain any qualifications as to what the size of that body of fresh water must be to constitute a river.
However a purposive approach to interpreting the RMA had to be adopted and the question asked whether it was the intention of the RMA that a short flow of water from and urban storm water system ought to be regarded as a river for the purposes of the RMA (promoting the sustainable use of natural and physical resources). There was no evidence that the flow of water acted in any life supporting capacity.
Section 30(1)(c) RMA (functions of regional councils) provided that the functions of regional councils included: the control of the use of land (including river beds) for the purpose of the maintenance and enhancement of the quality, quantity of water in water bodies and enhancement of ecosystems in water bodies. Nothing in the evidence suggested that the stretch of water required to be controlled for any of those purposes. None of the evidence established that the discharge from a piped storm water system undertook any of the functions which rivers undertook and which the RMA sought to protect.
A: Application for declarations declined
B: Costs reserved
Brian John Warbnrton (Mr Warburton) seeks declarations from the Court pursuant to s311 Resource Management Act 1991 (RMA) in the following terms:
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.
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.
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.
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