A J and R M Teasdale v The Wellington Regional Council
[20 15] NZEnvC 85
BEFORE THE ENVIRONMENT COURT
In the Matter of an appeal under s120 of the Resource Management Act 1991
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
The appeal is declined
Costs are reserved
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.
The issue was: whether the consents for the proposed works should not be issued because of the effects of the existing consented works on the appellants' land.
Held: The resource consent authorising the existing protection works included approval for their maintenance. There was no logical reason why the golf club would not take advantage of that and prevent them being compromised, even if the proposed new work did not proceed.
Further, if it was unlikely that there would be adverse effects from the proposed works, the submission amounted to a proposition that the Court should:
a) decline consents for a proposal that of itself would have demonstrable beneficial effects for at least the Golf Club land and have no, or at worst be unlikely to have, adverse effects; or
b) grant those consents but only on the basis that the golf club surrendered its existing consents (valid until 2030) and allowed the destruction of the existing works authorised by those consents.
Quite apart from the issue of scope — ie whether such a proposition was raised by the application or the Notice of Appeal (which raised the argued effects of the existing works but on the basis that the proposed works would create effects cumulative upon them) it was not possible to see how the Court could do that. The argument amounted to a collateral attempt to cancel an existing consent, authorising different activities, in the guise of opposing a new consent for activities that would, at worst, be unlikely to have relevant adverse effects.
Of the planning documents mentioned in s104 RMA, there were no issues with conformity with the relevant National Policy Statement, and the regional planning instruments. The proposal appeared to be consistent with the Hutt River Floodplain Management Plan, although the golf club and the Ts' properties were not within the area actively managed by the Regional Council's Flood Protection Department.
The proposal raised no concerns when assessed against Part 2 RMA.
Appeal declined and the decision of the Council confirmed.
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....
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