Moiw Ici Runga Regional Management Committee v Waitomo District Council

JurisdictionNew Zealand
CourtEnvironment Court
JudgeM Harland
Judgment Date16 Sep 2010
Neutral Citation[2010] NZEnvC 437

Decision No. [2010] NZEnvC 437

BEFORE THE ENVIRONMENT COURT

Court:

Judge M Harland, Commissioner O Borlase and Commissioner k Prime

In the Matter of an appeal under section 120 of the Regional Management Act 1991

BETWEEN
Mokaw Ki Runga Regional Management Committee (ENV-2008-AKL-000144)
Appellant
and
Waitomo District Council
First Respondent
Waikato Regional Council
Second Respondent
Waitomo District Council
Applicant
Counsel:

Mrs B N T Marsh secretary for the Appellant and appearing on its behalf.

Mr N M McAdie for Waitomo District Council (Applicant)

Mr J Milne for Waitomo District Council (First Respondent) & Wailkato Regional Council (Second Respondent)

Appeal against a decision of the respondent Council which allowed for treated wastewater to be discharged into the Mokau River on the basis it was culturally and spiritually insensitive — whether the potential adverse effects were adverse under s104(1)(a) Resource Management Act 1991 — whether the treatment option complied with relevant District Plans under s104(1)(b) — whether the impact on the receiving environment was no more than minor under s105(1)(a) — whether viable alternatives had been considered under s105(1)(c) — whether the proposal recognised the relationship of Maori to their ancestral water under s6(e) — whether the proposal met the overall purpose of the Resource Management Act 1991 under s5 (sustainable management).

The issues on appeal were: whether the potential adverse effects were adverse under s104(1)(a) RMA; whether the impact on the receiving environment was no more than minor under s105(1)(a); whether viable alternatives had been considered under s105(1)(c) RMA; whether the proposal recognised the relationship of Maori to their ancestral water under s6(e) RMA (relationship of Maori and their culture and traditions with their ancestral lands, water); and whether the proposal met the overall purpose of the RMA under s5 (sustainable management).

Held: Under s104(1)(a) RMA there were a number of positive effects including; providing a comprehensive wastewater management system; reducing the need for ongoing servicing and maintenance of individual septic tanks; improving the water quality of the river; enhancing the amenity values in the quality of the environment by containing and treating all contaminants; and addressing the risk to public health present by the current unsatisfactory sewage treatment and disposal methods. The potential adverse effects relating to ecological values and visual effects were unlikely to result in any significant adverse effect on the river.

The evidence established that the proposed discharge would improve river quality such that the impact on the receiving environment was no more than minor under s105(1)(a) RMA. The proposed method of discharge was affordable and sought to address the concerns of tangata whenua, ensuring that there was some discharge to land before the treated water reached the river under s105(1)(b) RMA (reasons for the proposed choice).

The Council had complied with its obligations under s105(1)(c) RMA. It had investigated other alternatives including a land-based system and had concluded the costs associated with land purchase, storage and irrigation infrastructure were unaffordable to the PioPio community.

There was no evidence that tangata whenua had stopped taking food from the river and the discharge structure had been designed to meet the cultural needs of Mokau Ki Runga. The closeness of the urupa to the discharge structure had to be balanced against the fact that the wetland was not part of the treatment of the wastewater but received highly treated wastewater which would have little ecological impact on the river. The option went a reasonable way to meeting the concerns of iwi under s6(e) RMA.

The proposal met the overall purpose of sustainable management under s5 RMA. The evidence established that the treated wastewater was of such quality that the life-supoprting capacity of the river and its ecosystems would be safeguarded and there would be little impact on water quality.

Appeal dismissed.

  • A. The appeal is dismissed. The decision of the Wailkato Regional Council and the conditions attached to it are confirmed, subject to the amendment referred to in paragraph 124 of this decision.

  • B. Costs are reserved. If the applicant and respondents wish to seek costs against the appellant, they are to file and serve memoranda addressing that issue by 4 February 2011. If any such memoranda are filed, the appellant is to file and serve any memorandum in reply by 25 February 2011.

DECISION OF THE ENVIRONMENT COURT
Introduction
1

For many years now, the small, low-decile settlement of Piopio within the Waitomo District has had a problem with unsatisfactory sewage treatment and disposal which poses a public health risk. All are agreed that the current situation cannot and should not continue. After considering of a number of alternatives, the solution proposed by the Waitomo District Council (“WDC”) as most affordable to the local community, is a centralized domestic wastewater treatment plant (“the plant”) which discharges the treated wastewater to the Mokau River (“the river”). The discharge of the treated wastewater to the river is however culturally unacceptable to the appellant, who seek disposal of the treated wastewater to land rather than to the river. There is some urgency attached to resolving this situation, because the WDC has obtained significant government funding through the Ministry of Health Sanitary Work Subsidy Scheme (“SWSS”) to establish the wastewater treatment system and this funding must be used before the scheme ends on 30 June 2013. If the current funding is not used, then the community will be unable to afford a treatment plant and the problem it has with unsatisfactory sewage treatment and disposal will continue to be a risk to human health.

2

In 2008 the WDC was granted resource consent to establish and operate a wastewater treatment plant at Piopio. 1 It was also granted a discharge permit to discharge 135.4 cubic metres per day of treated municipal sewage from the plant to the river. 2 Both the land use consent and the discharge permit were made subject to conditions. The

appellant originally appealed to this Court in relation to both of the consents granted, but at the hearing only maintained its appeal in relation to the discharge permit.
3

To take into account the appellant's concerns about the discharge of the treated wastewater to the river directly from the plant, the WRC now proposes passing the treated wastewater down a hill and over a planted wetland area to the river through a discharge structure comprising a series of perforated timber baffles. This proposal is still unacceptable to the appellant. 3

Background
The township of Piopio and its current wastewater system
4

Piopio is a settlement consisting of 220 existing properties, located on State Highway 3, 3.2km south west from Te Kuiti within the Waitomo District. The Piopio Township lies within the natural catchments of three waterways; the Mokau River, the Kuratahi Stream and the Piopio Stream.

5

Currently domestic wastewater treatment within the Piopio community consists predominantly of on-site septic tanks with trench discharge systems. Limited soil permeability, high groundwater, poor septic tank maintenance and overloading of discharge fields have compromised the ability of local soils to treat the discharged wastewater.

6

The lack of effective treatment of effluent through the treatment systems, including the land, has in many cases resulted in effluent ponding and overland flow into the Kuratahi and Piopio streams, especially during wet periods of the year. This has resulted in the degradation of the water quality of both those streams and the river downstream of the Piopio Township.

7

Dr Hood, the Medical Officer of Health for the Waikato District Health Board told the Court that “raw or inadequately treated sewage is likely to be contaminating the

immediate household environment around some homes in Piopio, particularly during and after wet weather.”4 Because of this, there is a risk to public health. 5
8

Mr Demchy, a Piopio resident for the last eight and a half years and the owner of a portable sawmilling business, described Piopio as being” a lovely place to live” with “a go-ahead community”. He graphically described its one major downfall as being “some areas of the township stink”. 6 The problem was described by him as being particularly prevalent in summer. On one occasion when he was installing a satellite TV decoder, he observed raw sewage running under the house. He also observed an open drain at a house nearby, which he understood to be used to release the septic tank overflow “directly into the creek”7

9

The Piopio community is a poor one. The New Zealand Index of Deprivation 2006 (“the Index”) was described to us as “a relative index of socioeconomic deprivation produced by the Department of Public Health.”8 It combines a number of variables which reflect eight dimensions of deprivation; income, home ownership, support, employment, qualifications, living space, communication and transport and provides a range from 1 to 10, where 1 represents the areas with the least deprived scores and 10 the areas with the most deprived scores. 9 The Piopio community received a score of 8 on the Index. 10

10

In addition, the Piopio community had a higher proportion of people without any qualifications and a lower proportion of people with school or post-school qualifications than the rest of the Waikato Region. 11 As well, the median income in Piopio was lower than the Waikato Region as a whole, and the total spending for households was considerably less compared with the whole of New Zealand. 12 The point of all this is that the ability of the community to afford expensive infrastructure is constrained.

SWSS funding
11

The...

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