A J and R M Teasdale v The Wellington Regional Council
| Jurisdiction | New Zealand |
| Judgment Date | 05 May 2015 |
| Neutral Citation | [2015] NZEnvC 85 |
| Date | 05 May 2015 |
| Docket Number | ENV-2014-WLG-000046 |
| Court | Environment Court |
In the Matter of an appeal under s120 of the Resource Management Act 1991
[20 15] NZEnvC 85
ENV-2014-WLG-000046
BEFORE THE ENVIRONMENT COURT
Appeal against the grant of consents to a golf club to place diversions on the bed and banks of a river to permanently divert it at sites where flooding and erosion had been an ongoing problem — some diversions works were already in place in the river under existing consents — the appellants, who owned land opposite two of the proposed work sites, had already lost a significant area of their land to river erosion — their expert said this was due to the existing diversions — the proposed works relied in part on the retention of the existing works and as a result would indirectly contribute to the further loss of the appellants land — the expert agreed that it was unlikely that there would be adverse effects from the proposed works — whether the consents for the proposed works should not be issued because of the effects of the existing consented works on the appellants' land.
R J B Fowler QC for A J and R M Teasdale
M J Slyfield for Te Marua Golf Club Inc-applicant
K M Anderson & A J Schriiffer for the Wellington Regional Council
In a decision dated 24 July 2014, the Wellington Regional Council granted two resource consents to the Te Mama Golf Club Inc. The first is a land use consent (s13 RMA) to place rock rip-rap groynes on the bed and banks of the Hutt River, including any associated excavation and disturbance; discharge of bed materials, and the deposition of material on to the bed of the river during the course of the works. The second consent is a water permit pursuant to si4, permitting the permanent diversion of the Hutt River, due to the placement of the rip-rap groynes. This is an appeal against the grant of both resource consents.
Consent to the works is sought by the Golf Club to attempt to stabilise the left bank of the Hutt River where it flows along the north-western edge of the Te Mama Golf Course. The proposed groynes are to be constructed at three distinct sites where, according to the Club's evidence, flooding and erosion have been an ongoing problem. The total frontage of the golf course to the river is c2900m, and there has been protection at various points, by way of willow and other vegetation, and with various structures put in place since the 1970s, but that is now failing. The Club has been advised that heavy protection works are required at the three points to prevent the loss, through river erosion, of significant areas of its land.
The most upstream of them is Site 1 and at this site the proposal is for the construction of up to seven rip-rap groynes, to be tied into existing control works. Site 2 is approximately 250m upstream from the clubhouse and this will involve the construction of up to 11 rock rip-rap groynes over a 190m length of the bank. It is said that erosion at this site has increased significantly since the application for consent was first lodged in late 2013, and there are now very mature Totara trees at risk from erosion. Site 3 is near the downstream end of the golf course and would involve the construction of up to six rip-rap groynes over a 100m length of the riverbank. The evidence for the Club is that since the consent application was lodged there has been heavy erosion at this point also, and the riverbank has retreated significantly over that time.
The design of the groynes has been based on the Council's Best Practice Guide of April 2013. Each groyne will contain 70-80 cubic metres of rock. At Sites 2 and 3, where recent erosion has been heavy, the outer edge of the groynes will extend, if at all, only a short distance past the pre-erosion line of the riverbank. We do not understand there to be any issue taken with the design of the groynes from an engineering point of view.
In brief the Golf Club's position is that the river's erosion of its land is increasing, and unless some effective protection is installed its future is in question. Its advice is that any ecological effects on the river water, by way of sediment load etc during construction, will be brief and in any event no worse than might be caused by a small fresh. The passage of fish will not be interfered with during the course of the work, or upon its completion. Long-term, the Club's advice is that the works will have no harmful effects — indeed is likely to have positive effects — on the river and its ecology, and is most unlikely to cause damage, by way of erosion or otherwise, to other riverside properties. In particular, its position is that the works will not, alone or in combination with the existing structures and works, cause or add to any erosion of the Teasdale land.
Mr and Mrs Teasdale own land on the western side (opposite the proposed work sites 2 and 3 on the golf course river boundary) of the Hutt River, and a high (c30m) cliff marks its boundary with the river edge. The river has been eroding the cliff during flood events. Mr and Mrs Teasdale have apparently already lost a significant area of their land to river erosion and are, naturally, concerned to protect the balance as well as they are able.
In his brief of evidence for Mr and Mrs Teasdale, Mr Robert Hall, a chartered professional engineer engaged by them, concludes in this way:
4.19 In considering the form, location and proposed construction methodology of the erosion flood protections of the TMGF (sic) current application I conclude that they in their own right are unlikely to materially affect the Teasdale land.
He added, in the course of his evidence, that this would be so whether or not the existing works were in place. It is his view that the existing flood protection measures installed by the Golf Club since the 1970s are the likely cause of flood damage to the Teasdale land because they have … closed off a natural overflow path across the lower parts of the golf course for the river in times of flood. The proposed works rely in part on the retention of those existing works … and as a result would indirectly contribute to the further loss of the Appellants' land.
Mr Hall suggests also (para 2.8 of his evidence) that the foot of the cliff face may also have been weakened in seismic events, as the area is bounded to the north and the west by the Wellington Fault.
The Council is content with its decision, having the view that any potential adverse effects will be avoided or mitigated to an acceptable level. It also considers that the works will have positive effects, by way of protection of the golf course land, and by way of improved water quality through reduced erosion, and habitat improvements through riparian planting and increased morphological complexity of the river.
There was acceptance that both activities — the land use for the construction of the groynes, and the diversion of the water, are discretionary activities in terms of the relevant planning documents, and require resource consents accordingly. Therefore, the applications are to be considered in light of si 04 and Part 2 of the Act.
Mr Douglas Fletcher, the Council's planning witness, assessed the proposal against the permitted activity provisions of the Regional Freshwater Plan and came to the view that its effects would be more significant than those of activities permitted (ie not requiring a resource consent) by the Plan and that there was thus no valid permitted baseline assessment. There was no disagreement with that view, and we will consider the appeal on that basis.
One needs to start with the relevant effects, if any, of existing activities (or works/structures). Possible adverse erosion effects on the Teasdale land of the existing structures/work on the golf course are rated by both Mr John Philpott, the consulting engineer engaged by the Golf Club, and Mr James Flanagan, the Council's engineer, as …no effect. Mr Hall ranks the risk as … unlikely to be any measurable effect.
One then needs to consider the actual and potential effects of the proposal on the relevant environment (in this case, the Teasdale land). At first sight, the position taken by Mr and Mrs Teasdale in the Notice of Appeal brought into play the extended definition of effects, as including a cumulative effect: ie one which … arises over time or in combination with other effects. In other words, if an existing activity has adverse effects, and the proposed activity also has adverse effects which, even if only minor in themselves, would add to those of the existing activity, then the definition requires a consideration of both.
In the course of his submissions however, Mr Fowler disavowed reliance on that concept. Rather, he based his argument in support of Mr and Mrs Teasdales' position on Mr Hall's evidence, in particular that in para 4.13 of his brief:
… I am of the opinion that the proximate cause of cliff line retreat and erosion of the Teasdale land since the mid-1970s to the present, is closely associated with the closure of the secondary flow path across the lower part of the TRGC (sic) greens. The closure of this feature has resulted in the diversion of flows at times when the river is in flood, around the reach where the eroding cliff is located. If the overflow path was not obstructed in the manner that it is at present, then lesser flows in times of flood would pass the cliff line than do at present and the readjustments which the river form is presently making to accommodate the higher flows would be absent.
Mr Fowler submitted...
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