Marlborough District Council v P J and S M Woolley

• Jurisdiction: New Zealand
• Judge: J R Jackson,J R Mills
• Judgment Date: 04 April 2014
• Neutral Citation: [2014] NZEnvC 79
• Court: Environment Court
• Docket Number: (ENV-2013-CHC-82)
• Date: 04 April 2014

In the Matter of the Resource Management Act 1991 and of an application under section 316 of the Act

Between

Marlborough District Council

Applicant

and

P J and S M Woolley

Respondents

Decision No. [2014] NZEnvC 79

Court:

Environment Judge J R Jackson

Environment Commissioner J R Mills

(ENV-2013-CHC-82)

BEFORE THE ENVIRONMENT COURT

Application under s316 Resource Management Act 1991 (application for enforcement order) seeking compliance with a condition of a resource consent for the construction of effluent ponds on a dairy farm — applicant alleged that a condition relating to certification by the designing engineer had not been complied with and the discharge of dairy effluent had commenced, and was continuing, despite the absence of certification — original (designing) engineer was no longer available — respondent had held a first permit which had detailed requirements — applied for a second permit which followed first permit but omitted significant details — second permit contained a condition that first would be voluntarily rescinded — whether any of the detailed information contained in the first application (but omitted in the second application) was part of the second application — whether it was impossible to comply with the certification condition since there was no “designing engineer” — whether enforcement orders should be made requiring the undertaking of remedial work and the commissioning of a hydrology report.

Appearances:

P J Radich and K McIlveney for Marlborough District Council

D J Clark for P J & S M Woolley

ENFORCEMENT ORDER

• A: The Environment Court orders under section 314(1)(b)(i) of the Resource Management Act 1991 that, to ensure compliance with Condition 4 of Marlborough District Council Consent U100478, P J and S M Woolley obtain, lodge and serve by Friday 6 June 2014 a certificate from a registered engineer (being a practitioner approved by the Marlborough District Council) stating that:

  • (1) the effluent disposal system on the dairy farm “Glenmae” on State Highway 63 in the Upper Wairau Valley has generally been installed and is functioning according to the design in MDC Permit U100478 and the accompanying documents; and

  • (2) in particular that the dimensions given on the plans are correct (and, if not, by how much they differ) and that the layout on the ground corresponds with the cross-section and sectional view on the second application for resource consent; and

  • (3) the two ponds are functioning as holding ponds, i.e. they are impermeable and are not discharging to the ground and/or groundwater around or beneath the ponds; and

  • (4) there are no holes in the ponds and walls; and

  • (5) past weed infestation has not affected the ponds' impermeability.

• B: Under section 314(1)(a) of the Resource Management Act 1991 the Environment Court:

  • (1) orders that P J and S M Woolley cease operating the milking shed on the dairy farm “Glenmae” on State Highway 63 in the Upper Wairau Valley from 7 June 2014; and

  • (2) prohibits P J and S M Woolley from recommencing milking at Glenmae, unless and until order A has been complied with and the approved engineer's certificate records that the effluent system was installed and is functioning correctly in all respects.

• C: The applications for other enforcement orders are adjourned.

• D: Leave is reserved for any party to apply for:

  • (1) further timetabling directions, provided any application is made promptly (last minute applications are unlikely to be successful);

  • (2) approval by the Court of a certifying engineer if agreement cannot be reached.

• E: Any application for costs under section 285 of the Act should be lodged within 20 working days and any reply with a further 20 working days of the date of issue of this decision.

REASONS

Table of Contents	Para
1. Background	[1]
1.1. The application for an enforcement order	[1]
1.2. Subsequent steps	[4]
1.3. The MDC's concerns	[10]
2. The resource consents	[14]
2.1. The first application and consent	[14]
2.2. The second application	[18]
2.3. The second permit	[30]
3. The operation of the dairy farm	[37]
3.1. Commencement of milking	[37]
3.2. Inspections of the dairy farm	[40]
3.3. Is there any discharge of effluent to ground or groundwater?	[44]
3.4. Has the second permit been contravened?	[52]
4. Should we make enforcement orders?	[64]
4.1. The court's enforcement powers in Part 12 of the RMA	[64]
4.2. Remedying the lack of an engineer's certificate	[68]
4.3. What should be done about the effluent escape?	[71]
4.4. Any orders in relation to other breaches?	[76]

1. Background

1.1. The application for an enforcement order

1 On 4 July 2013 the Marlborough District Council (“MDC”) lodged an application for an enforcement order under section 316 of the Act, seeking compliance with resource consent U100478 in respect of a farm known as Glenmae on State Highway 63 in the Upper Wairau Valley owned by the respondents, P J and S M Woolley.

2 In particular the application alleged that a condition relating to certification by the designing engineer had not been complied with and the discharge of dairy effluent had commenced, and was continuing, despite the absence of certification. The application was supported by the affidavits of S Lines and P F Hamill dated 21 June 2013. The latter, a senior Environmental Scientist with the Council, set out a brief explanation about the Wairau Catchment and the effects of dairy effluent.

3 The farm is legally described as Lot 2 DP 306447 being all of the land in CFR 25271 and Lot 1 DP 306447 being all of the land in CFR 25270 (Marlborough).

1.2. Subsequent steps

4 On 12 July 2013 the court gave the following directions:

• (1) Any respondent who wishes to oppose the application for enforcement orders must lodge and serve:

  • (a) a notice of opposition specifying grounds and an address for service; and

  • (b) any affidavits stating the evidence relied on in support of (a)

    — by 2 August 2013.

• (2) Any affidavits in reply from the applicant(s) shall be lodged and served by 16 August 2013;

• (3) This proceeding will then be set down for a hearing in Blenheim as soon as possible.

5 On 2 August 2013 the respondents lodged a notice of opposition (unsupported by an affidavit) acknowledging the lack of a certificate and stating that an engineer had been engaged. The notice 1 also claimed that the conditions should have been worded differently.

6 Initially, both the MDC and respondents agreed that a hearing and decision by the court would not be required. Since then the MDC have lodged a further affidavit in reply and memoranda dated 8 October and 12 December 2013 which advised that an engineer had yet to engage in the necessary work and a hearing was required.

7 Subsequently, on 23 December 2013, the MDC lodged an amended application for enforcement orders. The application was amended to seek an order requiring the respondents to cease the use of the milk shed for milk production until a certificate had been received because the respondents had begun milking in the new (2013/14) dairy season. The amended application was supported by a further affidavit of Ms S F Lines and Mr G Congdon. The latter, a compliance manager, set out a brief history of RMA issues the MDC have had with Mr Woolley.

8 The court issued further directions 2 giving the respondents a chance to lodge another notice of opposition to the amendments made prior to the commencement of the hearing.

9 An affidavit in opposition from Mr Woolley was lodged with the Registrar on 22 January 2014 (the day before the hearing) and a notice of opposition later the same day.

1.3. The MDC's concerns

Lack of certification

10 The MDC's concerns are outlined in the third affidavit of Ms Lines, as follows 3:

In summary “it was hoped that the making of the application would result in compliance being achieved. This has not happened. The situation has got worse and more concerning as cow numbers have increased and as nothing has been done to make the effluent management and disposal system compliant” 4.

• a) The effluent management and disposal system remains in an uncertified and concerning state and Council has not been able to achieve any engagement with the respondents to have the issues dealt with.

• b) Dairying has continued in disregard of the requirements for effluent management and disposal as set out in the resource consent.

• c) There continues to be what I think is a disregard for the other requirements of the resource consent.

• d) The scale of the dairying operation has been doubled from what was provided for in the original resource consent application.

• e) There is now another issue with a stock underpass on State Highway 63.

The underpass

11 The December 2013 application by the MDC raised a new matter in relation to a livestock underpass on State Highway 63. It appears that Mr Woolley was required 5 to build an underpass to move dairy cattle across the highway but groundwater was struck. The underpass is now filled with groundwater. That raises issues including 6:

• a) how is the disposal of this water in the underpass to be dealt with and managed in regulatory and engineering terms;

• b) how is effluent which will accumulate in the underpass when dairy cattle are being moved through it to be managed and dealt with in regulatory and engineering terms.

12 MDC's position is that the underpass should not be used until these regulatory and engineering issues have been properly dealt with. In her fourth affidavit Ms Lines states 7:

Council considers that the situation with the construction having penetrated ground water and flooded the underpass gives rise to Resource Management issues pursuant to Sections 14 and 15 of the Act and the Plan.

I accept that this problem of ground water may not...