Marlborough District Council v P J and S M Woolley

 
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Decision No. [2014] NZEnvC 79

BEFORE THE ENVIRONMENT COURT

Court:

Environment Judge J R Jackson

Environment Commissioner J R Mills

(ENV-2013-CHC-82)

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
Appearances:

P J Radich and K McIlveney for Marlborough District Council

D J Clark for P J & S M Woolley

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first permit but omitted significant details — second permit contained a condition that first would be voluntarily rescinded — whether any of the detailed information contained in the first application (but omitted in the second application) was part of the second application —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.

The issues were: 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” as the original engineer was no longer available; and whether enforcement orders should be made requiring the undertaking of remedial work and the commissioning of a hydrology report.

Held: On the facts the information from the first application was not part of the second application. W had been expressly asked by the Council whether he was applying for a variation of the first consent or making a new application. He advised that the second application was for a new consent. While lacking some important details, his second application was stand alone: it did not need to be read with the first application, and so the earlier application was not part of the later one.

On the balance of probabilities, it was likely that some effluent had illegally discharged to the gravels under the ponds. It was impossible to quantify how much on the evidence given. It was common ground that no certificate had been given stating that the ponds had been constructed to the design. It was clear that W had prepared the second application himself by carrying out a “cut and paste” operation on the first application completed by the original engineer.

However, that did not automatically meant the condition was impossible to comply with. “Impossibility” in relation to a condition usually meant that a consent holder found that it was physically or legally impossible to comply with the condition. But that was not the situation here because an engineer could have been found to satisfy the condition. It did not matter that the original engineer was unable or unwilling now to inspect the farm and (if appropriate) give a certificate to the Council. Another appropriately experienced engineer could be found.

The condition of the new permit had been breached in that a certificate from an approved engineer had never been obtained. Requested records of effluent irrigation had not been supplied as required. W had failed to keep (or at least to produce) records of the “date, type, duration, area and location of effluent irrigation” breaching another condition of the consent. W had a also failed to advise the Council of the commencement of any effluent irrigation on the farm in breach of another condition and denied the Council opportunities to carry out monitoring and sampling during irrigation.

The Council had sought extensive orders for remedial work. The orders required the Court to rewrite the permit, which it did not have power to do. It also did not have the power to require W to commission a report from a hydrologist under s314(1)(b)(ii) RMA as a report did not require a person “to do something to avoid, remedy, or mitigate any actual or likely adverse effect on the environment ( Auckland Regional Council v Graham). W had breached the conditions of the second permit requiring it to give notice of effluent discharge and to keep records. In relation to that the Council sought an order directing that the respondent henceforth comply” … with the Conditions of [the] Resource Consent … as modified by the … orders [sought earlier]. It was beyond the Court's powers to modify a consent in an enforcement proceeding except in the special circumstances identified by s314(1)(e) — that the application contained material inaccuracies. There was no evidence of that in this case.

W was ordered to obtain a certificate as to the installation and functioning of the effluent disposal system pursuant to s314(1)(b)(i) RMA (ensure compliance). W was to cease working the dairy farm under s314(1)(a) RMA (cease any act that contravenes a resource consent). However that order was delayed in its operation until the end of the current (2013/14) season, and it was an “unless and until” order. The form of the proposed order meant that W could not commence milking in the 2014/2015 season without applying for and obtaining an engineer's certificate.

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...

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