The Hawkes Bay Regional Council v David Westbury Dew and Alan Maxwell Ross

• Jurisdiction: New Zealand
• Judge: C J Thompson
• Judgment Date: 01 February 2012
• Court: District Court
• Docket Number: CRI-2010-041-3349
• Date: 01 February 2012

BETWEEN

The Hawkes Bay Regional Council

Informant

and

David Westbury Dew and Alan Maxwell Ross

Defendants

CRI-2010-041-3349

CRI-2010-041-3351

IN THE DISTRICT COURT HELD AT NAPIER

Alleged breach of abatement notice to cease the discharge of secondary treated domestic effluent onto land — defendant owned property in area zoned Rural Residential in district plan — property had a self-contained sewage treatment system which discharged treated effluent onto land — rule in regional plan provided that discharge onto land from domestic sewage system was permitted but prohibited discharge onto “land zoned for residential activity” — definition of “residential activity” — whether residential activity included rural residential or just urban residential activities.

Counsel:

J G Krebs for Informant

M B Lawson for Defendants

DECISION OF JUDGE C J Thompson

Introduction

1 Mr Ross and Mr Dew are the respective owners of two properties, being small lifestyle blocks, at 137 and 117 Eskridge Drive, west of Bayview and north of Napier City. Although they are separate defendants, the issues and arguments relating to each are identical and it will be convenient to treat them as one entity. Each property contains a residence and, because the subdivision of which they form part does not have a reticulated sewerage system, each has a self-contained sewage treatment system which discharges the treated effluent into land on the lot.

2 The properties are zoned Rural Residential in terms of the Hastings District Plan. The Hawkes Bay Regional Resource Management Plan (RRMP) contains Rule 37, which relates to New domestic sewage disposal systems, including greywater disposal. The Rule provides that … The discharge of contaminants onto or into land from any domestic sewage including greywater established after notification of this Plan.., shall be a Permitted activity (ie an activity for which a resource consent is not required). There are, as one would expect, conditions, standards and terms attached to that permitted status. The one relevant to the issues here is: The discharge shall not occur … on any land zoned for residential activity in any Proposed or Operative District Plan. A discharge not complying with those conditions, standards and terms will require a resource consent. For completeness, I add that condition (k) of Rule 37 states: The discharge shall not result in, or contribute to, a breach of the “Drinking Water Quality Standards for New Zealand” (Ministry of Health, 1995) in any groundwater body after reasonable mixing.

3 Taking the view that the properties in question were … zoned for residential activity … (and in fact asserting in the Notices that they are … zoned residential) the Hawkes Bay Regional Council, in August 2009, served each owner with an Abatement Notice under s322 of the RMA requiring him, with immediate effect, to cease … The discharge of secondary treated domestic effluent onto land.

4 No appeals against those Abatement Notices were lodged, nor were there applications to stay the operation of the Notices. Notwithstanding that lack of formal response, there seems to have been no attempt to enforce the Notices for a year. It was not until September 2010 that Infringement Notices were issued. Neither owner admitted liability, so the matters were set down for hearing. Procedurally, things have moved slowly since then, with evidence having to be taken before a Registrar, and there has been further evidence introduced by way of affidavit. The parties are agreed that all the material they wish to present is now before the Court, so I can proceed to a ruling. A number of issues have been raised, and I can deal with them sequentially. The key question of the interpretation of the RRMP will be dealt with first.

Was a resource consent required or were the systems a permitted activity?

5 The answer to that lies in the interpretation of Rule 37 of the RRMP — see para [2] — and in particular the sentence … The discharge shall not occur … on any land zoned for residential activity in any Proposed or Operative District Plan … It can be assumed, I think, that it was worded that way because the RRMP applies across the territories of a number of District Councils, and the District Plans of each of them do not necessarily have consistent descriptions of the various residential zones defined in them.

6 The result however is a provision that is inherently vague and ambiguous. Does … land zoned for residential activity …mean land that is zoned Residential without any qualifier, such as Rural Residential, or does it mean any land upon which some form of residential activity may be undertaken with or without a resource consent? As the arguments in this matter amply illustrate, the full answer is not immediately clear. For a full and workable answer one must try to distil the intended meaning from the context and purpose of the provision.

7 However it does seem to me clear that the meaning attributed to the phrase by the Regional Council in issuing the Abatement Notices cannot be correct. If it is correct, the outcome would be absurd — it would probably only be on land for which the zoning prohibits residential activity (or, perhaps, makes it non-complying) that Rule 37 could be given effect by authorising the … discharge … from any domestic sewage … as a permitted activity. The Concise Oxford defines domestic as: … of or relating to a home or family affairs … of or for use in the. home. There is no doubt that the Rule uses the word domestic in that sense, so domestic sewage can only arise from a residential use.

8 That being so, the only interpretation of … any land zoned for residential activity … that seems to bring about a result according with the presumed purpose of the Rule ie to protect the quality of water (and particularly groundwater) — and to ensure that properties having self-contained sewerage systems are of sufficient size to allow effective treatment, is to interpret the phrase as meaning zoned for urban residential activities. One then needs to consider the whole context of the provision and ask whether such an interpretation is reasonably open.

Contextual matters

9 The RRMP itself does not have a definition of residential activity. It does however have definitions of other terms which, cumulatively, may be helpful. There is a definition of Dwellinghouse: Any building, whether permanent or temporary, that is occupied, in whole or in a part, as a residence. And the Plan defines Residential property as: A property that contains at least one permanent dwellinghouse, and which is used primarily for domestic purposes (and, one might add, which therefore produces domestic sewage). Reasonable domestic needs … refers to needs associated with occupation of a dwellinghouse. Domestic uses and Domestic purposes have corresponding meanings.

10 Rule 37 refers to policies POL 16, POL 71, and POL 75, and the summary of Objectives, Policies and Methods in Chapters 3 and 5 of the Plan (page 28) refers to the following objectives for each of these policies:

Much of the Plan material that specifically refers to on-site sewage disposal comes under the heading of Groundwater Quality as a regionally significant issue, with objectives and policies. A regionally significant groundwater quality issue is:

3.8.1 The risk of contamination of groundwater arising from … discharges of contaminants, including the cumulative effects of domestic sewage discharges from unsewered communities.

• • POL 16 — Objective 21 (regionally significant issues, objectives and policies -groundwater quality)

• • POL 71 — Objective 40 (regional plan objectives and policies — surface water quality)

• • POL 75 — Objectives 42 and 43 (regional plan objectives and policies -groundwater quality)

11 There are other reasonable indications that the Plan's use of the term residential activity was not intended to extend to land zoned Rural Residential. These include references in the regionally significant issue (3.8.1 above) explanation and reasons for the groundwater quality objectives to … expansion of urban areas (3.8.2), urban development (e.g. 3.8.3) unsewered communities (3.8.1) and coastal settlements (3.8.10).

12 To provide a consistent approach, the policies for each regionally significant issue have been categorised under headings, eg: Role of non-regulatory methods. This type of policy identifies the role of non-regulatory methods in addressing the issues. These policies are linked to Chapter 4 (page 27). There are references to … future development … advocating that any future urban residential or urban industrial development in areas of high groundwater contamination vulnerability (particularly within the Heretaunga Plains unconfined aquifer system …) should include reticulated water, sewerage and stormwater systems. (See Policy 15 Role of Non-regulatory Methods, 3.8.11(a)). (emphasis added)

13 There are regulatory provisions also. This type of policy establishes how specific activities will be regulated by regional rules (see page 27). For instance: POL 16 Regulation — Discharges over Heretaunga Plains and Ruataniwha Plains Aquifer Systems. The Explanation and Reasons for POL 16, which refers to regulating new domestic sewage disposal systems over the Heretaunga Plains and Ruataniwha Plains unconfined aquifer areas is significant in the interpretation of the provision. It states:

Policy 16 provides...