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

 
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IN THE DISTRICT COURT HELD AT NAPIER

CRI-2010-041-3349

CRI-2010-041-3351

BETWEEN
The Hawkes Bay Regional Council
Informant
and
David Westbury Dew and Alan Maxwell Ross
Defendants
Counsel:

J G Krebs for Informant

M B Lawson for Defendants

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.

Held: The phrase “land zoned for residential activity” in rule 37 was vague and ambiguous. It was unclear whether the phrase meant land that was zoned residential without any qualifier, such as rural residential, or did it mean any land upon which some form of residential activity could be undertaken with or without a resource consent.

The meaning attributed to the phrase by the council in issuing the abatement notice was incorrect. If it was correct, the outcome would be absurd. It would mean that discharge from any domestic sewage system as a permitted activity under rule 37 could probably only occur on land for which the zoning prohibited residential activity (or perhaps made it non-complying). The Concise Oxford Dictionary defined “domestic” as: “relating to a home or family affairs… of or for use in the home”. There was no doubt the rule used the word domestic in that sense, so domestic sewage could only arise from a domestic use.

The purpose of the rule was to protect the quality of water and to ensure that properties that had self-contained sewage systems were of sufficient size to allow effective treatment. That being so, the only interpretation of “any land zoned for residential activity” that was in line with this purpose, was that the phrase meant land zoned for “urban residential activities”. The council's Resource Management Plan did not define “residential activity” but it defined “dwellinghouse” (any building occupied as a residence) and “residential property” (a property that contains at least one permanent dwellinghouse used primarily for domestic purposes), which provided useful context.

There were reasonable indications that the plan's use of the term “residential activity” was not intended to extend to land zoned “rural residential”. The provisions in the plan had logical and consistent themes. The overall purpose was to protect the quality of the water resources of the region so that it could safely be used for domestic, agricultural, horticultural and industrial purposes. Discharge of effluent from closely spaced housing that was not serviced by community sewerage schemes was inimical to this purpose. In general terms, those residential activities which did not require a community based system were those on large lots, sufficiently spaced, and having individual systems shown to be adequate to treat and dispose of the effluent produced on them safely and without adverse effects on the environment.

It was not possible to say, as a general finding, that all urban residential zones were captured by rule 37, or that all rural residential zones were not. But when considering the overall thrust of the Regional Plan, reinforced by the District Plan provisions, the ambiguity could be resolved by holding that the rural residential zone contained in the District Plan, was not “zoned for residential activity” in terms of rule 37.

The defendants were not challenging the validity of the abatement notices. They were disputing the assertions on which they rested ( Manukau CC v Randle). The council was required to prove that the discharges required a consent and that in the absence of such a consent there was a breach of the RMA.

The council had not established that either of the defendants had breached rule 37. The infringement notices were disposed of accordingly.

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 ...

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