Moiw Ici Runga Regional Management Committee v Waitomo District Council
| Jurisdiction | New Zealand |
| Judge | Judge M Harland,Commissioner O Borlase,Commissioner k Prime |
| Judgment Date | 16 September 2010 |
| Neutral Citation | [2010] NZEnvC 437 |
| Date | 16 September 2010 |
| Court | Environment Court |
In the Matter of an appeal under section 120 of the Regional Management Act 1991
Decision No. [2010] NZEnvC 437
Judge M Harland, Commissioner O Borlase and Commissioner k Prime
BEFORE THE ENVIRONMENT COURT
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).
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)
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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.
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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.
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.
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
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
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.
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.
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.
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. 5Mr 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
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
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.
The SWSS scheme was designed to assist small communities with a high level of deprivation to overcome the financial barriers associated with wastewater systems serving relatively small numbers of people, and thereby address the risk to public health presented by poor performing sewage treatment and disposal methods in those communities.
After SWSS became operative in 2003, an application for funds for a new plant at Piopio was one of the first received by the Waikato District Health Board. Because of its low socio-economic profile, Piopio qualified for a 72% subsidy, which is the highest level of funding granted in the Waikato region. 13 The fact that SWSS funding has now closed, is a factor which it is submitted ought to be given considerable weight by us. Without this funding, the applicant submits the Piopio community will be unable to afford to remedy the problem.
Mrs Marsh is the secretary of the appellant, which is a committee of the Maniapoto Maori Trust Board, and she has been authorized to speak on their behalf. The appellant represents tangata whenua. The idea of treated human waste being discharged into a waterway from which food has traditionally been taken is fundamentally abhorrent to the appellant. The appellant supports the land-based disposal system over one that discharges into water for cultural and spiritual reasons and contends that there is land available close to Piopio which is suitable for a fully land-based disposal system. On the morning of the hearing, the appellant presented a document prepared by Xpose New Zealand Limited (“Xpose”), which outlined in very general terms such an option. More will be said of this later.
The proposed discharge to water is a discretionary activity by virtue of the rules in the Waikato Regional Plan (“the WRP”). 14 The provisions of the Waikato Regional Policy Statement (“the WRPS”) are also relevant and must be considered by us.
Pursuant to Section 104B of the Resource Management Act (“the RMA”) the Court has the discretion to grant or refuse consent and if granting consent, to impose conditions under section 108. Under s290A we must have regard to the decisions which are subject to appeal.
Whilst the evidence and counsel addressed the provisions of si07 and si07A, in the context of this case they are not issues which require any further evaluation by us.
Section 104(1) of the RMA applies and the Court must have regard to:
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[a] Any actual and potential effects on the environment of allowing the activity (sl04(l)(a));
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[b] The relevant provisions of the statutory planning documents...
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