Watercare Services Ltd v Auckland Council

 
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Decision No: [2011] NZEnvC 515

BEFORE THE ENVIRONMENT COURT

Court:

Judge B, B P Dwyer sitting alone under s279 of the Act

BETWEEN
Watercare Services Ltd (ENV-2009-AKL-000354)
Appellant
and
Auckland Council
Respondent

and

Auckland Council (ENV-2009-AKL-000459)

and

Waikato-Tainui Te Kauhanganui INC (ENV-2009-AKL-000465)

and

Te Kawerau Iwi Tribal Authority INC (ENV-2009-AKL-000466)

and

Makarau Marae Maori Trust Inc (ENV-2009-AKL-000467)

and

Living Earth Ltd (ENV-2009-AKL-000468)
Florapak Partnership (ENV-2009-AKL-000473)
Appellants

and

Watercare Services Ltd
Respondent
Counsel:

B Peita for Nganeko Minhinnick and Laurie Beamish P

O'Driscoll for Te Akitai Waiohua Waka Taua Trust

D Nolan for Watercare Services Limited M

Dickey for Auckland Council

H Andrews for Waikato-Tainui Te Kauhanganui Incorporated

E Morrison and H O'Connell for Te Kawerau Iwi Tribal Authority Incorporated and Makaurau Marae Maori Trust Incorporated

T Daya-Winterbottom for Living Earth Limited

M Dickey on behalf of D Allan for Florapak Partnership

  • A:Waivers declined

  • B:Costs reserved

DECISION ON WAIVER APPLICATIONS
Introduction
1

In June 2008, Watercare Services Limited (Watercare) lodged a Notice of Requirement (NoR) with Manukau City Council (the City Council) and an application for resource consents with Auckland Regional Council (the Regional Council) to enable Watercare to place bio-solids (oxidation pond sludge) into a worked out quarry on Puketutu Island, in the Manukau harbour 1.

2

The applications were of some considerable controversy and attracted a total of 226 submissions.

3

A joint hearings committee of the Regional and City Councils considered the NoR and resource consents application in May 2009. The City Council recommended that Watercare withdraw its NoR. (Watercare declined to accept that recommendation) The Regional Council declined the application for resource consents.

4

On 30 July 2009, Watercare filed an appeal against the Regional Council's decision to decline its resource consent application. The deadline for parties interested in the Watercare appeal to join the proceedings pursuant to s274 Resource Management Act 1991 (RMA) was 10 September 2009. Relevantly for the purposes of these current waiver proceedings, amongst the parties who filed notices on the Watercare appeal pursuant to s274 were three organisations representing what might be broadly described as Maori interests, namely:

  • • Makaurau Marae Maori Trust (Makaurau);

  • • Te Kawerau Iwi Tribal Authority Incorporated (Te Kawerau); and

  • • Waikato-Tainui Te Kauhanganui Incorporated (Waikato-Tainui)

5

In November 2009, appeals were filed by various submitters (and the City Council) in respect of Watercare's refusal to accept the City Council's recommendation in respect of the NoR. Makaurau, Te Kawerau and Waikato-Tainui were amongst the appellants. The deadline date for filing s274 notices in respect of the various appeals on the NoR was 20 December 2009. A number of such notices were filed.

6

The present applicants for waiver, Te Akitai Waiohua Waka Taua Trust on behalf of Te Akitai Waiohua, Ngati Pou Waiohua and Ngati Pare Waiohua (Te Akitai), Nganeko Minhinnick (Mrs Minhinnick) and Laurie Beamish (Mr Beamish) (jointly referred to as the Applicants) were all submitters in respect of the Watercare resource consent application and NoR proceedings before the Councils. None of these three parties filed notices of appeal in respect of the decisions, nor did they file s274 notices seeking to join any of the appeals which had been filed, by the deadlines of 10 September 2009 and 20 December 2009.

7

The Applicants have now filed belated notices pursuant to s274 and have made application pursuant to s281 RMA, requesting that the Court waive compliance with the statutory time limits for filing s274 notices. Te Akitai and Mrs Minhinnick filed their s274 notices and waiver applications in November 2010 and were accordingly 11 months out of time in respect of the NoR appeals and 14 months out of time in respect of the resource consent appeals. Mr Beamish filed his s274 notice in January 2011 and was accordingly 13 months out of time in respect of the NoR appeals and 16 months out time in respect of the resource consent appeals.

8

The Applicants' requests for waiver were opposed by a number of the existing parties to the proceedings including Watercare, Makaurau, Te Kawerau and Waikato-Tainui (inter alia).

Section 281 RMA
9

Section 281 RMA relevantly provides:

281

Waivers and Directions

  • (1) A person may apply to the Environment Court to

    • (a) Waive a requirement of this Act or another Act or a regulation about

      • (iia) the time within which a person must give notice under section 274 thai the person wishes to be a party to (he proceedings;

  • (2) The Environment Court shall not grant an application under this section unless it is satisfied that none of the parties to the proceedings will be unduly prejudiced.

10

Consideration of applications pursuant to s281 is a two-step process:

  • • Firstly, a determination as to whether or not any of the parties to the proceedings will be unduly prejudiced should a waiver be granted. If any party might be unduly prejudiced that is the end of the matter and no waiver can be granted;

  • • Secondly, if no party is unduly prejudiced, the Court determines the waiver application on its merits. 2

11

In this case consideration of the first test as to whether any parties to the proceedings might be unduly prejudiced must be undertaken in the light of what has happened with the various appeal proceedings since they have been filed.

12

Within a very short time of the filing of appeals and s274 notices, Watercare commenced a proactive and systematic process seeking to resolve the various appeals. This process involved Watercare reconsidering aspects of design and engineering of the bio-waste proposal to address concerns raised at the Council hearings. In addition to redesign and planning Watercare began detailed discussions with the all of the parties to the appeals. These discussions were described in some detail in affidavits filed in these current proceedings by Mr G W Maskill (Manager of Statutory Planning — Watercare), Mr P T Jaggard (Waste Water Planning Manager and Puketutu Project Manager — Watercare) and Mr T W Taua (Chairperson of Te Kawerau).

13

On 25 November 2010, a joint memorandum and draft consent orders resolving all the appeals was filed in the Court. The agreed outcome of these documents was that the NoR would be upheld and resource consents granted to Watercare.

The Applicants' Position
14

The following information emerged from the affidavits filed in support of the applications for waiver:

  • • In an affidavit supporting the Te Akitai application, Mr D Wilson (a person authorised to make an affidavit on behalf of Te Akitai) gave no explanation as to why Te Akitai filed neither an appeal nor a s274 notice within the statutory period. There is a suggestion in the affidavit 3 that Te Akitai cannot afford

    legal costs and is wary of the Environment Court because of a previous costs award made against Mr Wilson and Mrs Minhinnick.
  • • Mrs Minhinnick deposed that on the one hand she could not recall being told about the appeal 4 but agreed on the other hand that there wasnotification about Watercare's Appeal5. She pointed to the fact that her iwi (Ngati Te Ata) was actively involved in a range of legal proceedings in the Waitangi Tribunal and Maori Land Court in 2009 at the same time as these proceedings, suggesting that it was stretched with various commitments at that time.

  • • Mr Beamish pointed to his iwi's involvement at that time in 2009 with the Wairoa Canal Housing Development case before the Environment Court and deposed that all of its energy and resources were committed to that case. He deposed that he was aware that Waikato-Tainui and Makaurau were part of the appeal process and in light of their stated opposition to the Watercare proposal, he believed that they would successfully oppose the Watercare appeal 6

15

It was apparent on reading the Applicants' affidavits and hearing from their Counsel that an issue of particular concern to them was the terms of settlement agreements entered into between Watercare, Makaurau, Te Kawerau and Waikato-Tainui as part of the settlement negotiations after the filing of appeals. One outcome of the settlement agreements was that freehold title to Puketutu will be vested in an iwi charitable trust. Makaurau, Te Kawerau and Waikato-Tainui will appoint the trustees to the trust. The parties represented by the Applicants, who have...

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