Gagraham v West Coast Regional Council
| Jurisdiction | New Zealand |
| Court | Environment Court |
| Judge | J E Borthwick,Environment Judge |
| Judgment Date | 05 February 2015 |
| Neutral Citation | [2015] NZEnvC 15 |
| Date | 05 February 2015 |
| Docket Number | (ENV-2014-CHC-047) |
[2015] NZEnvC 15
BEFORE THE ENVIRONMENT COURT
Environment Judge J E Borthwick
(ENV-2014-CHC-047)
In The Matter of the Resource Management Act 1991 and of an application pursuant to section 311 of the Act
This version is an uncorrected OCR version. Please refer to the PDF for official court issued version.
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A: Pursuant to ss 310(d) and 313 of the Resource Management Act 1991 the Environment Court declares that the proposed mining and aggregate processing activities described in G A Graham's 2001 and 2003 resource consent applications are not permitted by a rule in the Regional Plan and are not existing lawful activities allowed under s 20A of the Resource Management Act 1991. Resource consent is required to expressly authorise these activities.
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B: Costs are reserved. Any application for costs is to be filed and served by 20 February 2015; with any reply to be filed and served by 6 March 2015.
Mr Gordon Graham wishes to extract minerals located on a property in the vicinity of the Taylorville-Blackball Rd, near Greymouth. Relying on his ownership of minerals located under the property, he contends that resource consent is not required to authorise proposed mining and aggregate processing activities and seeks a declaration to that effect.
However, the Regional Council takes a different view and says a variety of consents are required for the proposed activities. Based on resource consent applications made in 2001 and 2003 by Mr Graham, the Regional Council says Mr Graham requires consent for activities that would otherwise contravene ss 9(2), 13, 14 and 15 of the Resource Management Act 1991.
The parties have requested that the court make its decision on the papers and so my decision follows.
With reference to the affidavits filed I briefly set out next the relevant facts. 1
Mr Graham is seised of an estate in fee simple to certain minerals located under land situated in the Borough of Brunner. 2 The land comprises ss 10, 11, 17A Square 118 and ss 7, 8, 9 and 12 Block 1X Mawheranui Survey District. The surface of the land is owned by Mr T W Smithers of Brunnerton, Farmer, 3 although there may be other owners of the land surface as these are mentioned in the affidavits, but the certificates of title have not been produced.
In 2001 Mr Graham lodged an application for resource consent with the Regional Council seeking authorisation for the following activities:
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(i) a water permit to take surface water of an unknown volume from an unspecified source;
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(ii) a discharge permit to discharge dirty water from mining of “gravels” to Langdons Creek, Battery Creek and Stony Creek;
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(iii) a land use consent to mine the beds of Langdons Creek, Battery Creek and Stony Creek. Gold extraction is mentioned; and
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(iv) a land use consent for earthworks within an approximately 110 hectare area for an unknown volume of earth.
Mr Graham prepared the application and assessment of environmental effects himself. Notably he proposed to mine underneath bridges, culverts, a road, fibre optic cables and electricity transmission lines — all of which, he says, are supported by his “mineral estate”. The three abovementioned creeks were also to be diverted as part of the mining operation. However, a permit was not sought for this activity.
In 2002 Mr Graham agreed with the Regional Council to place the 2001 application on hold. 4
In a letter dated 24 October 2003 Mr Graham wrote to the Council providing further information in relation to the 2001 application. Expanding on his proposal he explained that it was his intention to mine for gold and coal, and that an aggregate byproduct would also be produced on site. He queried whether he needed resource consent, pointing out that s 5 of the Resource Management Act (RMA) excludes “minerals”. He observed that the grant of the estate in fee simple conferred a right to extract minerals in conflict with the RMA. Finally, he asserted that the utilities and roads were unlawfully located on the surface of the land.
That said, on 28 October 2003 Mr Graham filed a second resource consent application for the following activities:
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(i) a water permit to take surface water from Langdons Creek, Battery Creek and Stony Creek;
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(ii) a discharge permit to discharge water and sediments from settling ponds to Langdons Creek, Battery Creek and Stony Creek;
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(iii) a land use consent to mine the beds of Langdons Creek, Battery Creek and Stony Creek; and
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(iv) a land use consent for earthworks within an approximately 110 hectare area for an unknown volume of earth.
This time the applications clearly stated Mr Graham's intention to be engaged in gold and coal mining and in the processing of aggregate. He provided little additional information in the application and baldly asserted there would be no effect on the environment.
In a letter dated 29 June 2005 Mr Graham wrote to the Regional Council taking umbrage over the Council's failure to process his 2001 and 2003 consent applications. He observed the Council had not requested further information pursuant to s 92 of the RMA. In the same letter he asks whether the mining and aggregate activities are “permitted”, and gives a number of reasons for why in his view they are. Finally, he contends the Council's failure to process his applications has resulted in lost potential earnings in gold which he values at $1,123,200.00. Mr Graham says that lost earnings from coal mining and aggregate processing would be in addition.
By letter dated 6 July 2005 Mr C Dall, the Regional Council's Consents and Compliance Manager wrote to Mr Graham noting Mr Graham's wish that the 2003 application be processed and suggesting meeting with him to discuss further information that the Council would be requesting under s 92 of the Act. No reason is given in the letter for the Regional Council not processing the 2003 application upon its receipt.
A file note dated 12 July 2005 from Mr Da11 records Mr Graham did not want to meet with the Regional Council and that it was Mr Graham's view no resource consent was required.
To progress his applications in 2008 Mr Graham engaged the services of a consultant, Gold and Green Resources Ltd and in 2009 the services of lawyers, Lane Neave. Responding to Lane Neave, in a letter dated 22 October 1999, Mr Dall summarised the history of the application and suggested ways to proceed.
The Regional Council's Compliance and Consents Manager, Mr J Adams, records in his affidavit that there appears to have been no response to Mr Da11‘s letter from Mr Graham or his representatives. 5 He deposes none of the activities proposed by Mr Graham are permitted under the Regional Land and Water Plan and therefore resource consent is required. 6
Mr Graham's deposition repeats much of the contents of the June 2005 letter to the Regional Council, although he adds that:
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(i) the minerals are privately owned and so a mining licence under the Mining
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(ii) Act 1971 (now mining permit under the Crown Minerals Act 1991) is not required;
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(iii) he has indefeasible title to the minerals under the property;
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(iv) the utility operators are trespassing on his mineral estate; and
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(v) the certificate of title confers rights which are in conflict with the Resource Management Act 1991.
Mr Graham concludes his deposition by asking the court to answer several questions that are framed differently from his original application for declaration.
I will refer to various provisions in the RMA and for convenience these are set out in Annexure 1 to this decision.
Pursuant to s 310(d) of the RMA the Environment Court may, upon application, make a declaration:
Whether or not an act or omission, or a proposed act or omission, is a permitted activity, controlled activity, discretionary activity, non-complying activity, or prohibited activity, or breaches section 10 (certain activities protected) or section 20A (certain existing lawful activities allowed).
Mr Graham, a self-represented litigant, takes issue with the Regional Council's stance that he must obtain resource consent before undertaking activities in relation to mining and the production of aggregates. In his view consent is not required.
Having filed submissions and further submissions as directed by the court, Mr Graham then filed an additional 149 page submission purporting to respond to cases referred to by the Regional Council 7 Instead he traverses 17 years of litigation between himself, the Grey District Council and Westpower Ltd. Much of what he said is irrelevant to this proceeding as it concerns, amongst other matters, the rights of others to occupy the surface of the land and claims for compensation. These matters have been decided by other courts and tribunals, and while not saying so directly it is evident Mr Graham has not accepted their decisions.
That said, and keeping in mind that this is an application for declaration, the parties had earlier agreed two issues arise: 8
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(a) does Certificate of Title 2A11040 authorise Mr Graham to mine the minerals comprised in the title, without needing to comply with the Resource Management Act 1991 and the rules in plans made under that Act?
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(b) subject to the finding above, for the purposes of s 20A of the RMA does Certificate of Title 2A/1040 lawfully establish the activity for which consent may be required?
It is these two issues which I have given particular attention.
Mr Graham makes three fundamental claims:
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(a) the certificate of title creates such rights as may be necessary to take, use and discharge contaminants into water and secondly the certificate creates...
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