Te Rakato Marae Trustees and The Wairoa District Council v The Hawkes Bay Regional Council

• Jurisdiction: New Zealand
• Court: Environment Court
• Judge: C J Thompson,S R Clark,H M Beaumont
• Judgment Date: 11 August 2011
• Neutral Citation: [2011] NZEnvC 231
• Docket Number: ENV-2010-WLG-000106, 110
• Date: 11 August 2011

IN THE MATTER of appeals under sl20 and sl74 of the Resource Management Act 1991

BETWEEN

Te Rakato Marae Trustees

Appellant

and

The Wairoa District Council

Appellant/Requiring Authority

and

The Hawkes Bay Regional Council

Respondent

Decision No [2011] NZEnvC 231

Court:

Principal Environment Judge C J Thompson

Alternate Environment Judge S R Clark

Environment Commissioner H M Beaumont

ENV-2010-WLG-000106, 110

BEFORE THE ENVIRONMENT COURT

Appeal against confirmation of notice of requirement for road works and construction of a wastewater treatment and disposal plant and grant of consents for discharges to land and to air — land a Maori burial site subject to Treaty of Waitangi claim — whether adverse effects minor — whether land subject to a Treaty claim was amenable to Resource Management Act 1991 processes — whether necessary under s6 (preservation of the natural character of coastal environment) — whether hapu's holding of mana whenua had been ignored.

Counsel:

E R Fairbrother for Te Rakato Marae Trustees

M B Lawson for the Wairoa District Council

M G Conway for the Hawkes Bay Regional Council

DECISION ON APPEAL

Introduction

1 In a decision issued on 14 September 2010, Commissioners jointly appointed by the Wairoa District Council and the Hawkes Bay Regional Council made decisions in respect of a Notice of Requirement (NOR) by the District Council for roadworks and for wastewater treatment and disposal, and a concurrent application by the District Council to the Regional Council for resource consents for associated discharges to land and to air. The District Council has appealed that decision in respect of one of the conditions imposed on the resource consent for discharge to land. The Te Rakato Marae Trustees have appealed against the confirmation of the NOR and the grant of the resource consents.

Background

2 Opoutama is a coastal settlement towards the southern end of the tombolo, or the sandy neck, of the Mahia Peninsula. It is about 10km east of Nuhaka, and the Palmerston North — Gisborne railway line and the road north to Mahanga (Mahanga Road) pass through it. To the west of the rail/road corridor is the Ruawharo Marae. To its east, where the new road and disposal fields are proposed, are houses, a YMCA camp, the Ruawharawhara Urupa, the Opoutama Domain, two plantation reserves, and a presently unoccupied subdivision — known as the Blue Bay subdivision — on the site of a former motor-camp. The Opoutama School is now closed but about 49 dwellings remain in the vicinity.

3 By a process that became the subject of local lore and controversy over the last 50 or so years, about 40m of the road leading out from Mahanga Road to Mahia Beach on the Peninsula, known as Ormond Road, came to be built across a part of the Ruawharawhara Urupa. Just how that came about does not need to be resolved here: — it will suffice to say that, unsurprisingly, it has been the source of distress to some tangata whenua and there is a large measure of agreement that it should be remedied. Since 2007 there have been proposals to realign the road, with a number of deadlines passing without the issue coming to a conclusion. Since 2008, Council staff have prepared and consulted upon a number of realignment options and what is now in the Notice of Requirement is the result of that process. The Urupa Trustees being a different body from the appellant Trustees) have agreed that the road may remain in its present alignment across part of the Urupa until August 2011, so in that respect timing is very tight.

4 Running in parallel with the road issue, but until recently unconnected with it, have been issues about wastewater treatment and disposal, not just at Opoutama but at other Peninsula settlements also. Part of that wider issue was discussed in the Court's decision of Wairoa DC v Hawkes Bay RC [2010] NZEnvC 420 which dealt with a replacement wastewater scheme for the settlement at Mahia Beach. In common with what happened at Mahia Beach, the two Councils conclude that the existing individually managed, septic tank based, wastewater systems at Opoutama will not provide a longer-term solution that is safe for human health or ecologically sustainable. Alternatives were explored and, based on successful systems elsewhere, the possibility of disposing of treated effluent by sub-surface dispersal into roadside berms, came to the fore. The realignment of Ormond Road presented the opportunity to do just that — hence the District Council's NOR and applications for resource consents.

The proposed road realignment

5 The new (approximately 400m long) portion of road is to run to the south of the existing section of Ormond Road. There is to be a new T intersection off Mahanga Road, and a new rail crossing about 150m south of the existing one. The existing crossing will be decommissioned. The new portion of Ormond Road will be aligned through the northern portion of the Opoutama Domain and two plantation reserves, and will meet the existing Ormond Road to the east of the Blue Bay subdivision.

The proposed wastewater disposal system

6 Wastewater from each residence will be treated to a secondary level by individual on-site tanks and the effluent discharged into a municipal reticulation, system and carried to a buried storage tank. Effluent from the tank will be drawn through a 55 micron filter and a UV disinfection system, which will reduce the concentration of faecal coliforms and treat the discharge to a tertiary level. From there it will be discharged into a series of effluent land application areas (ELAAs). Discharge will be by sub-surface pressurised drip irrigation lines buried beneath the surface to achieve even distribution. The two ELAAs, which are close to the new portion of Ormond Road, will be planted with appropriate species to ensure maximum uptake via evapo-transpiration. The planting will also discourage public access into the areas and minimise visual impacts. The initial ELAA will be 2000m ² in area and there is a further 3500m available to accommodate future population growth. The facility will be owned and operated by the District Council.

Zoning and planning status

7 Under the Wairoa District Plan, the majority of the land the subject of the NOR is zoned Conservation and Reserve, with a small portion zoned Settlement. Under the Proposed Regional Coastal Environment Plan (RCEP), the site is within the Coastal Margin and a Vegetation Clearance Management Area. It is landward of coastal waters classified CR(HB), being water managed for contact recreation and aquatic ecosystem purposes. The proposed activities are subject to rules of both the RCEP and the Hawkes Bay Regional Resource Management Plan (RRMP).

8 The discharge of treated wastewater to land is a discretionary activity under Rule 52 of the RRMP and Rule 9 of the RCEP. The discharge of contaminants to air is also a discretionary activity under Rule 28 of the RRMP and Rule 76 of the RCEP. The associated vegetation clearance to form the road and effluent disposal areas is a permitted activity. The two discharge consents are therefore to be considered under s104, s105, s107 and Part 2 of the Act. The appeal against the requirement for the road is also to be considered against the factors set out in s171.

The District Council's appeal

9 The District Council's appeal related to monitoring requirements, and discharge quality standards. Those issues have now been agreed between the two Councils and the other parties do not dispute them. A draft Consent Order recording that agreement has been lodged with the Court and will be approved and issued at the same time as this decision. We do not therefore need to discuss the merits or otherwise of those issues.

The parties' positions

10 The District Council has the clear view that the realignment of the road, and the utilisation of the land beside it for wastewater disposal is an efficient use of the land resource, and fits easily within the parameters of s104 and Part 2 of the Act. Moreover, it is financially very favourable because the wastewater scheme qualifies for a 90% subsidy of construction cost through the Ministry of Health's Sanitary Works Subsidy Scheme, so long as the works are implemented by July 2013. The Council asserts, and is strongly supported by the Trustees of the Ruawharo Marae (being a different body from the appellant trustees) in doing so, that it has gone to great lengths to meaningfully involve the local people, tangata whenua especially, in considering alternatives both for the road and the wastewater schemes and in developing the proposal as it now stands. It is the Council's position that the Te Rakato Marae Trustees declined to engage in that process. The land in question was originally purchased by the Crown as part of the Kopuawhara Block in 1867 and the relevant parts of it are presently vested in the District Council as a Recreation Reserve (Opoutama Domain) and two plantation reserves.

11 The Regional Council has the view that the wastewater proposal is likely to result in improved water quality outcomes, because the discharged wastewater will be treated to a high standard and is unlikely to be able to contaminate any source of drinking water. Presently, and increasingly so into the future, the existing septic tank systems do not and will not provide that reassurance. Generally, the Regional Council believes that the scheme, and particularly the wastewater component which is its particular interest, will achieve the purpose of the Act — the sustainable management of natural and physical resources.

12 As do emerged at the hearing, the position of the Te Rakato Marae Trustees focused to a large extent on a Waitangi Tribunal claim (Wai #1256) lodged in 2005 by...