Judicial Decisions On Matters Related To Environment National Decisions

Compendium of Judicial Decisions
on Matters Related to Environment
NATIONAL DECISIONS
Volume II
July 2001
ISBN: 92-807-2025-2
Compendium of Judicial Decisions on Matters Related to Environment
ii
National Decisions Volume II
INTRODUCTION......................................................................................................................................................1
II
BACKGROUND TO ENVIRONMENTAL LITIGATION ......................................................................................3

1.
The Legal Basis of Civil Action.........................................................................................................................3
2.
Judicial Review ..................................................................................................................................................3

(a) Judicial review as a statutory remedy ........................................................................................................4
(b) Judicial review as a common law remedy .................................................................................................4
3.
Action in private law ..........................................................................................................................................4

(a) Trespass ......................................................................................................................................................4
(b) Nuisance .....................................................................................................................................................4
(c) Strict Liability: the Rule in Rylands v Fletcher .........................................................................................4
(d) Negligence ..................................................................................................................................................5
4.
The Remedies .....................................................................................................................................................5
5.
The protection of the riparian owners right to water........................................................................................5
III BACKGROUND TO CIVIL LAW SYSTEMS .........................................................................................................7

1.
An Example of a Civil Law Judicial System: The French Judicial System......................................................7
2.
Jurisdiction in the French Civil Law System.....................................................................................................9
3.
French Case Law and Environmental Liability .................................................................................................9
IV THEMATIC ARRANGEMENT OF JUDICIAL DECISIONS ...............................................................................12
Overview ..........................................................................................................................................................12
Texts..................................................................................................................................................................25
PLANNING CONTROL .........................................................................................................................................27

i.
Summers v The Far North District Council, 1998, (New Zealand) ................................................................28
ii.
National Association of Professional Environmentalists v AES Nile Power Ltd, 1999, (Uganda)................48
iii. Bulankulama v The Secretary, Ministry of Industrial Development, 1999, (Sri Lanka) ................................54
iv. Save the Vaal v The Director Mineral Development Gauteng Region, 1997, (South Africa) ....................... 82
v.
Paykel v the Northland Regional Council, 1999, (New Zealand)...................................................................88
vi. Farooque and Sekandar Ali Mondol v Bangladesh, (Bangladesh)................................................................112

vii. Ravensdown Fertilizer Co-op Ltd & Smith v Otago Regional Council, 1999, (New Zealand) ...................128
iii
POLICE POWER AND COMPULSORY ACQUISITION IN ENVIRONMENTAL MANAGEMENT .....163

viii. Just v Marinette County (USA) .....................................................................................................................164
ix. Hatton v The Far North District Council, 1998, (New Zealand)...................................................................174
x.
Daroux v The Minister of Lands, 1999, (New Zealand) ...............................................................................184
THE PLACE OF CULTURE IN ENVIRONMENTAL MANAGEMENT . ....................................................195

xi. Kotuku Parks Ltd v The Kapiti Coast District Council (New Zealand) .......................................................196
xii. Robert Te Kotahi Mahuta v The Waikato Regional Council and Anchor Products Ltd, (New Zealand) .....214
xiii. In Contact Energy Ltd v Waikato Regional Council, (New Zealand) ...........................................................248
xiv. H Te M Parata v The Northland Regional Council, (New Zealand) .............................................................286
xv. Yanner v Eaton [1999] HCA 53 (7 October 1999), (Australia).....................................................................310
xvi. Attorney General v Lahoy Akonaay, (Tanzania) ...........................................................................................340
iv
I N T R O D U C T I O N
This publication has been developed in pursuance of the aims

of Agenda 21, particularly chapter 8 which recognizes, among
other things, the need to facilitate information exchange,
including the dissemination of information on effective legal
and regulatory instruments in the field of environment and
development. This will encourage their wider use and adoption.
understand the concepts and principles rising from the

developing jurisprudence. This is because the rate of
growth of the corpus of modern statute law in the
environmental field is singularly rapid in Africa. In most
countries awareness of the potential of judicial intervention
in the environmental filed has grown largely because
citizens have instituted proceedings in courts. But in other
countries the effectiveness of the judicial mechanisms is
still weak because of lack of information and a dearth of
human and material resources. This is compounded by
weaknesses in the institutions in charge of environmental
law enforcement.
Consequently, the Compendium of Judicial Decisions was

devised with two objectives. First, it aims to create
awareness and enthusiasm among lawyers and non-lawyers
alike on the current trends in the jurisprudence related to
environmental matters. Second, it aims to provide resource
materials for reflecting on specific pieces of court decisions
from the point of view of courts of different perspectives,
grounded as they are in the unique legal traditions and
circumstances of different countries and jurisdictions.
Needless to say, inconsistent or incoherent enforcement

of such laws inevitably will undermine the legal order in
the environmental field. This necessitates exposure of law
enforcement officers in general and the judiciary in
particular to comparative jurisprudence as a basis for
interpreting local issues. This Compendium is produced in
the belief that the provision of information, such as is
contained in the Compendium can contribute to the
repertoire of knowledge which judicial officers and law
enforcers can call on in their efforts to give meaning to the
enforcement issues facing them. Thus, it is intended to be
a resource for training and awareness creation, and a source
of inspiration as enforcement officers grapple with day to
day issues of environmental management.
The promotion of sustainable development through legal

means at national and international levels has led to
recognition of judicial efforts to develop and consolidate
environmental law. The intervention of the judiciary is
necessary to the development of environmental law,
particularly in implementation and enforcement of laws
and regulatory provisions dealing with environmental
conservation and management. Thus an understanding of
the development of jurisprudence as an element of the
development of laws and regulations at national and
international levels is essential for the long term
harmonization, development and consolidation of
environmental law, as well as its enforcement. Ultimately
this should promote greater respect for the legal order
concerning environmental management. Indeed, when all
else fail, the victims of environmental torts turn to the
judiciary for redress. But todays environmental problems
are challenging to legislators and judges alike by their
novelty, urgency, dispersed effect and technical
characteristics.
Given the novelty of environmental law, the Compendium

is a unique opportunity for practitioners, particularly those
from Africa, where case law is still scarce, to raise their
level of awareness and sensitivity to ecological concerns
and to share their experiences on possible approaches to
resolving environmental disputes.
The Compendium is divided into National Decisions and
International Decisions , volumes I of which were
published in December 1998. At the time it was anticipated
that subsequent volumes would be published as availability
of materials and resources permitted, and if the response
to the publication of Volume I indicated that a demand
existed. This publication therefore constitutes Volume II
of the Compendium on National Decisions for which
sufficient material is available.
Over the last two decades many countries have witnessed

a dramatic increase in the volume of judicial decisions on
environmental issues as a result of global and local
awareness of the link between damage to human health
and to the ecosystem and a whole range of human activities.
In many countries the judiciary has responded to this trend
by refashioning legal, sometimes age-old, tools to meet
the demands of the times, with varying degrees of success
or, indeed, consistency. But such practice is still firmly to
take root in Africa where not much by way of judicial
intervention has been in evidence.
In this Volume the introductory discussion on Background

to Environmental Litigation which was published in
Volume I is reproduced because it forms a useful
substantive background to the texts which follow. The
reason is that Volume I may not easily be available to the
reader. Consequently, it is desirable that, as far as is
possible, each Volume should be a stand alone selfcontained document.
The complexity of environmental laws and regulations

makes it necessary for today legal practitioners,
particularly from Africa, urgently to assimilate and
1
As was done in Volume I this Volume too is divided into

parts, reflecting emerging themes in environmental
litigation. The themes provide only a loose grouping, and
there are no strict dividing lines between them. Indeed,
themes recur in various cases across the groupings. Finally,
the cases in this Volume are drawn from the common law
jurisdiction and the combined common law and Roman
Dutch jurisdiction of South Africa while the cases in
Volume III include a combination of cases from the
common law jurisdiction as well as cases from the civil
law jurisdictions. The decisions are of significance to
lawyers from both jurisdictions even thought the common
law jurisdiction emphasizes the value of precedent while
the civil law jurisdiction emphasizes the value of
jurisprudence.
As is now established practice cases are drawn from a diverse

range of countries and, where possible, are reproduced in the
original language. Translations from the original language are in
all cases unofficial translations, and the texts are reproduced in
the form in which they were received, with minimal editorial
changes.
For further information or for comments please contact:
The Task Manager
UNEP/UNDP/Dutch Joint Project on Environmental Law
and Institutions in Africa.
UNEP
P.O. Box 30552
Nairobi, Kenya
Tells 254 2 623815/624256/624236
Fax 254 2 623859
Email:[email protected]
I I
1.
B A C K G R O U N D T O E N V I R O N M E N T A L
L I T I G A T I O N I N C O M M O N L A W
J U R I S D I C T I O N S
of public powers or the performance of a public duty the cause

of action is in public law, whereas if it is caused by a private
person the cause of action is in private law. The causes of
action in public law are ultra vires, natural justice and error
of law. The remedies for their redress are certiorari,
prohibition, mandamus, and declaration. The causes of action
in private law are trespass, nuisance, the rule in Rylands v
Fletcher (the strict liability rule) and negligence. The
remedies for their redress are an award of dam-ages, injunction
and a declaratory judgement.
THE LEGAL BASIS OF CIVIL ACTION
Judicial intervention in environmental issues arises when

persons resort to court action to seek redress for a
grievance. Court action can be either civil action or criminal
action. Civil action is resorted to typically by private parties
while criminal action tends to be the preserve of public
authorities. However, the boundaries are not at all seamless:
there are many instances of public authorities bringing civil
action, and of private individuals initiating criminal
proceedings (i e. private prosecutions). These tend,
however, to be exceptional. Unlike the case with Volume I
this Volume has also focused on criminal actions in addition
to civil actions, especially on enforcement.
A civil law action in public law is designed for challenging

the legal validity of the decisions and actions of public
bodies. This is the common law process of judicial
review. It is now largely provided for by statute. Judicial
review is not to be confused with action taken in private
law to redress private wrongs, and one may not seek
judicial review instead of taking action in private law
simply because the defendant happens to be a public
authority. The remedy is specifically designed for
challenging the exercise of public power or the
performance or failure to perform a public duty. Where
the dispute with the public body does not relate to the
exercise of public power (or the performance of a public
duty), redress cannot be sought through a judicial review
application; the public body must be sued through an action
in private law, like any other wrongdoer.
The traditional position has been that, whereas a public

authority may take action explicitly to protect the
environment, a private litigant can only take court action
to seek redress for a private injury. Any environmentally
protective effect resulting from the private action would
be purely incidental. Where the private individual wishes
to bring action to redress an injury to the public he has to
seek the permission of the Attorney General to use his name
in an action known as a relator action.
The traditional position found expression in the
jurisprudence of the courts in common law and civil law
jurisdictions alike. Gouriet v Union of Post Office
Workers [1978] AC 435 is a leading English authority on
the point. The House of Lords stated the position as follows:
2.
JUDICIAL REVIEW
Judicial review is a remedy that may be used to:

... the jurisdiction of a civil court to grant remedies
in private law is confined to the grant of remedies
to litigants whose rights in private law have been
infringed or are threatened with infringement. To
extend that jurisdiction to the grant of remedies
for unlawful conduct which does not infringe any
rights of the plaintiff in private law is to move
out of the field of private law into that of public
law with which analogies may be deceptive and
where different principles apply. (p. 500).
(i)
(ii)
(iii)
(iv)
(v)
(vi)
quash a decision (certiorari)

stop unlawful action (prohibition)
require the performance of a public duty
(mandamus)
declare the legal position of the litigants (declaration)
give monetary compensation
maintain the status quo (injunction).
Judicial review may be awarded where a public body has

committed the following wrongful acts or omissions:
A private individual could however bring action in his name

on the basis of an interference with a public right in two
situations: where the interference with the public right also
interferes with some private right of the person concerned or
where, in the absence of any interference with a private right,
the person concerned has suffered damage peculiar to himself,
which is additional to that suffered by the rest of the public.
(i)
(ii)
The basis of a civil law claim is a cause of action. This
arises when an injury is caused to a person or property. If the
injury is caused by a public body in the context of the exercise
(iii)
where it has acted beyond its legal powers (i.e. ultra

vires); a decision or an act of a public body may be
ultra vires for reasons such as the failure to take
into account relevant matters or taking into account
irrelevant matters.
where it has acted contrary to the principles of
natural justice, which require an absence of bias and
a fair hearing in decision making.
where it has acted in error of law.
Judicial review is a remedy under both statute and the

common law, and has been adopted by all the common
law jurisdictions.
(a)
(b) Nuisance
There are two types of nuisance; public nuisance and
private nuisance. Often the same act gives rise to both types
of nuisance at the same time.
Judicial review as a statutory remedy
Statutes typically provide that persons who are aggrieved

with the decision of a public body may apply for a review
to the courts. Person aggrieved was defined in a leading
English authority A.G (Gambia) v Njie [1961] 2 All E.R.
540. Lord Denning said:
A public nuisance is an interference with the publics

reasonable comfort and convenience. It is an interference
with a public right and constitutes a common law criminal
offence, quite apart from providing a cause of action in
private law. In the English case of Attorney General v
P.Y. A. Quarries Ltd [1957] 2 Q.B. 169 Lord Denning
said of public nuisance:
The words person aggrieved are of wide import and

should not be subjected to a restricted interpretation. They
do not include, of course, a mere busybody who is
interfering in things that do not concern him, but they do
include a person who has a genuine grievance because an
order has been made which prejudicially affects his
interests.
(b)
It is a nuisance which is so widespread in its range

and so indiscriminate in its effect that it would
not be reasonable to expect one person to take
proceedings on his own responsibility to put a stop
to it, but that it should be taken on the responsibility
of the community at large.
Judicial review as a common law remedy
A private nuisance is an interference with an occupiers use

and enjoyment of his land. Not all interferences, however,
amount to a nuisance. Nuisances are those interferences
which are unreasonable, causing material and substantial
injury to property or unreasonable discomfort to those living
on the property. The liability of the defendant arises from
using land in such a manner as to injure a neighbouring
occupier. Thus nuisance imposes the duty of reasonable use
on neighbouring occupiers of land. It is the cause of action
most suited to resolving environmentally related disputes
between neighbouring landowners.
Quite apart from, and independently of, statutory

provisions, judicial review is available as a common law
remedy to which resort may always be had to challenge
the decisions and actions of public bodies. In England, the
Supreme Court Act 1981 and Order 53 of the Rules of the
Supreme Court stipulate the procedure to be adopted in
such cases. Similar procedures have been adopted by other
common law jurisdictions.
Order 53 requires that the applicant seek leave of the court
before filing the application. Leave is only granted if the
court considers that the applicant has sufficient interest
(or locus standi) in the matter in issue. Courts around the
world have given varying interpretations to this concept,
particularly in the context of environmental litigation. This
has led to action in some countries, such as the Republic
of South Africa, to introduce statutory provisions in the
Constitution or elsewhere, widening the opportunities for
access to the courts.
The private law causes of action are trespass, nuisance,

the rule in Rylands v Fletcher (the strict liability rule)
and negligence.
The reasonableness, or unreasonableness, of the use giving

rise to the complaint is determined on the basis of the
locality in which the activity in issue is carried out. The
English case of Sturges v Bridgeman (1879) 11 Ch.D.
852 is illustrative of this point. A confectioner had for more
than twenty years used a pestle and a mortar in his back
premises which abutted on the garden of a physician. The
noise and vibration were not felt as a nuisance and were
not complained of. But in 1973 the physician erected a
consulting room at the end of his garden, and then the noise
and vibration became a nuisance to him. His action for an
injunction was granted, the court holding that whether
any-thing is a nuisance or not is a question to be
determined, not merely by an abstract consideration of the
thing itself, but by reference to its circumstances.
(a) Trespass
(c) Strict Liability: the Rule in Rylands v Fletcher
Trespass arises where a person causes physical matter to

come into contact with anothers land. Trespass, therefore,
protects an occupiers right to enjoy his or her land without
unjustified interference. It is limited, however, to direct,
rather than indirect, interferences.
This rule is based on the facts of the English case after

which it is named. The defendant had constructed a
reservoir to collect and hold water for his mill. Under his
land were underground workings of an abandoned coal
mine whose existence he was unaware of. After the
3.
ACTION
IN PRIVATE LAW
reservoir had been filled the water escaped down the

underground workings through some old shafts, and
flooded the plaintiffs colliery. The plaintiff filed suit and
the court decided that:
where damages would not be an adequate compensation.

Typically, an injunction will not be granted unless the
damage is serious. The Court will balance the
inconvenience which declining to grant the injunction
would cause the plaintiff against the inconvenience which
granting it would cause the defendant.
the person who for his own purposes brings on his land
and collects and keeps there anything likely to do mischief
if it escapes must keep it in at his peril, and if he does not
do so, is prima facie answerable for all the damage which
is the natural consequence of the escape.
A declaratory judgement is the courts declaration of the

rights and duties of the parties before it. Its value lies in
resolving a dispute by setting out clearly the legal position.
Most litigants will act in accordance with the Courts
declaration without the need for further orders. However,
as the House of Lords in the English case of Gouriet v
Union of Post office Workers the jurisdiction of the
Court is not to declare the law generally or to give advisory
opinions; it is confined to declaring contested legal rights,
subsisting or future, of the parties represented in the
litigation before it and not those of anyone else. (p. 510)
The case was appealed to the English House of Lords which

upheld the decision, one of the judges adding that the
defendant was liable because he had been engaged in a
non-natural use of his land.
The rule makes an occupier strictly liable for the consequences of
escapes from his land. However, this cause of action has not been
relied a great deal partly because of difficulties in ascertaining
the true meaning of non-natural use. Some have argued that
non-natural use refers to the conduct of ultra-hazardous activities
on land, while others hold that it means no more than bringing on
to land things not naturally there.
5.
OF THE RIPARIAN OWNER S
RIGHT TO WATER
There is one other entitlement under the common law

which can form a basis of environmental litigation; the
riparian owners right to water.
(d) Negligence
Negligence arises from a failure to exercise the care
demanded by the circumstances with the result that the
plaintiff suffers an injury. In contrast to the three other
causes of action, the basis for the action is not the
occupation of property. A plaintiff needs to show that he is
owed a duty of care, and that the defendant has breached
that duty of care, with consequent injury to the plaintiff.
Under the English common law a landowner is presumed

to own everything on the land up to the sky and down to
the center of the earth. However, running water, air and
light are considered to be things the property of which
belongs to no person but the use to all [see Liggins v
Inge (1831) 131 E.R. 263, 268]. Therefore, a landowner
has no property in running water, air and light; all that his
proprietorship entitles him to, as an incident of such
proprietor-ship, is a natural right to use these elements.
The leading authority on negligence is the English case of

Donoghue v Stevenson [1932] AC 562. Lord Atkinson
said in that case that the duty of care is owed to persons
so closely and directly affected by the defendants act that
he ought reasonably to have them in contemplation as being
so affected when directing his mind to the acts or omissions
which are called into question. In other words, the duty
of care is owed to those whom the defendant could foresee
might suffer injury as a result of the defendants act or
omission.
4.
THE PROTECTION
Thus, a landowner whose land abuts running water, i.e. a

riparian owner, has a natural right to water. The riparian
owner is able to exercise, as of right, the right available to
all members of the public to use running water since he
has an access to the water which non-riparian owners do
not have. The right of use is available equally to all riparian
owners and therefore any one riparian owner must use it
reasonably. No one riparian owner may use the water in
such a way as to prejudice the right of other riparian owners
[Embrey v Owen (1851) 155 E.R. 579]. Other riparian
owners have a cause of action if there is unreasonable use
by any one owner.
THE REMEDIES
The three remedies in private law are damages, injunction,

and declaratory judgement.
The scope of the riparian owners rights extends to access,

quantity and quality. Access enables the riparian owner to
navigate, embark and disembark on his land. Quantity
enables the riparian owner to abstract, divert, obstruct or
impound the water to the extent of its natural quantity. He
may use the water abstracted for ordinary (domestic)
purposes such as drinking, cooking and washing, and for
these purposes may abstract as much as he needs without
restriction. Secondly, he may use it for extraordinary
purposes such as irrigation, but in this case must restrict
An award of damages is compensation given to a party

who has suffered an injury. The sum awarded is based on
the principle that the injured person should be placed in
the position he or she would have been in if he had not
been injured.
An injunction is an order from the court directing a party
either to do or to refrain from doing something. It is granted
to stop a continuing or recurring injury, or in circumstances
the quantity he abstracts to that which does not prejudice

the rights of other riparian owners. Thirdly, a riparian owner
may attempt to abstract water for use outside of his land,
but the common law disallows such foreign use of water.
On quality the riparian owner is entitled to have the water
in its natural state of purity.
If any of these rights are interfered with, the riparian owner

has a cause of action. However, as the House of Lords
held in the English case of Cambridge Water Company
v Eastern Counties Leather plc ([1994] 1 All E.R. 910),
the suit itself must be based on the traditional common
law causes of action: trespass, nuisance, Rylands v
Fletcher (strict liability) and negligence. It is the injury
suffered which arises out of riparian ownership.
I I I
B A C K G R O U N D
T O
C I V I L
Since it is the tradition of the Compendium to carry

examples of judicial decisions from civil law jurisdictions,
it is important to consider briefly the civil law system. On
the whole this is typified by the French legal system, from
which most French speaking African countries have
derived their legal systems.
1.
French judicial decisions can only afford analogies, not

precedents, for courts which are so differently constituted
as those in the English-speaking common law world.
However, some of these analogies point to principles of
general application, even though there are distinct
differences as regards their form and style.
1.
L A W
S Y S T E M S
AN EXAMPLE OF A CIVIL LAW JUDICIAL

SYSTEM : THE FRENCH JUDICIAL SYSTEM
In France, the judicial system and the various jurisdictional

allocations are set out in the constitution and various basic
statutes. Its structure is summarised briefly below.
On the general principles that apply in the
organisation of justice in France, the following stand
out:
-
Among these differences are, first, that the word

jurisprudence is not generally used in the civil law legal
system in the same sense as in the common law system. In
the former, it refers to something like the Case Law, the
English term jurisprudence being equivalent to the
French Thorie gnrale du droit .
The civil law system does not recognise the absolute

authority of judicial precedents. It also attaches more
weight to jurists writings than does the common law
system. A key feature of the system is its grounding in a
series of Codes and other statutes. Consequently, the fabric
of the law is primarily statutory, the judiciarys task being
limited mainly to applying the provisions of the existing
legal texts.
In principle, in the civil law system, even decisions of the

superior courts are not recognised as automatically binding.
However, for a long time now, the decisions of the Courts
(or la jurisprudence) have been acknowledged as playing
a major role in the development of the law in the civil law
system and the creative function of the judiciary is now
widely accepted. But, even then, though it is now generally
accepted that decisions of the Court de Cassation, for
example, are to all intents and purposes, regarded as
authoritative for the future, the lower Courts still resist
innovations of the Court de Cassation. In this they are
often encouraged by the writers of doctrine.
2.
The collegiality of jurisdiction (up to three

judges can be found in one court);
The fixity and permanence of jurisdictions;
The professional status of judges (being a
dominant feature);
The total independence of judges (from the
political influence, the influence of other judges
as well as of the parties among others);
The fact that justice is free of charge;
Equality of access to justice and neutrality of
the judges;
The public nature of the administration of
justice;
The adversary nature of proceedings before the
judge;
The rule of a dual level of jurisdiction (trial and
appellate levels);
The responsibility of the State to ensure that
justice is carried out swiftly and adequately.
The institutions of justice, commonly called

jurisdictions, are:
-
The tribunaux at a first degree (e.g. Tribunal de

Grande Instance) and;
The Cours dappel (Appellate courts) at the
second level.
There are several appellate courts of co-ordinate

jurisdiction in France. However, some jurisdictions at a
superior level are also called tribunal such as the
Tribunal des Conflits and others are called Conseils
such as the Conseil dEtat or the Haute Cour de Justice.
These terminologies have a bearing on the designation of
judicial decisions. The decisions of tribunals are called
Judgements while the decisions of the courts are called
arret(or order). When the decision has been issued by
only one judge, they are called Ordonnance or, in some
cases, Decisions.
Another characteristic of the civil law system is that,

although the decisions are reported in the Official Series
on a scale probably comparable to that of common law
jurisdictions, the legal judgements of the courts consist
usually of a very short enunciations (embodied in a series
of complex wordings (sentences), each prefaced by the
words considrant que or attendu que (enumeration of
facts and the reasons for the decision), without any citation
or discussion of authorities.
Jurisdictions which have fewer cases to handle are said to

be Ordinary jurisdictions and those whose work is
voluminous and specialised are said to be the juridictions
spcialises.
In summary the civil order deals with matters related to

civil liability proceedings, including criminal offences,
while the administrative order deals with matters related
to public authorities decisions affecting private persons.
However, the boundary between the two orders of
jurisdiction is not rigid.
As regards the powers of the appellate courts, though the

French legal system considers an appeal as the continuation
of the original suit, the powers, prestige and duties of the
judges in courts of original jurisdiction and those of the
ones in the appellate courts are different to a large extent.
The appellate court has powers as regards the amendment
and return of plaints and memorandum of appeal; the
withdrawal of the suit where there is mistake, or where
there is need for separation; trial of misjoined suits; and
the like.
One can also say that, in France, the courts have jurisdiction
to try all suits of a civil nature except suits whose
cognisance is expressly or impliedly barred by law.
As regards the nature or subject matter of the suits, certain
courts in France are courts of special jurisdiction, inasmuch
as some classes of cases involve disputes with which
superior or specially experienced tribunals are particularly
familiar, and which can more satisfactorily be disposed of
by them, such as administrative decisions, revenue issues,
and the like. Furthermore, cases of importance affecting
considerable interests or involving questions of intricacy
are left to be determined by the higher courts. Additionally,
under the French Codes of Civil Procedure and
Administrative Tribunals, it is provided that where the
claim is in a particular field, that field is regarded as the
subject-matter of the suit.
The French judiciary system consists typically of two

categories of judicial orders:
-
The juridictions judiciaires, which have jurisdiction

on both criminal and civil matters and;
The juridictions administratives, which are many

and among which the most important is the Conseil
dEtat, (presided by the Prime Minister or his
representative). These deal with administrative
matters.
As regards the court in which such a suit should be brought,

reference should be made to the administrative tribunals,
particularly the Conseil dEtat in the case of
administrative jurisdictions. Under the French legal system,
in matters relating to public matters, such as cases that
involve public nuisances, suits may be may be instituted,
though no special damage has been caused, for a
declaration and injunction or for such other relief as may
be appropriate to the circumstances of the case. In principle,
as in common law systems, a private individual cannot
sue in respect of a public nuisance unless he shows that he
has suffered special damage thereby.
The Conseil dEtat has got four specialised sections and

has advisory administrative powers related to finance,
interior affairs, public works and social affairs. It gives
opinions on major administrative issues.
One other section of the Conseil dEtat is judicial in nature.
It is composed of one chairman, three (3) vice-chairmen
and a number of counsellors, matre de requtes, and
auditeurs. The Chairman is the judge of single matters
brought before that section.
Another relevant fact is that, under the French legal system,

national courts are empowered to pass judgement against
a non-resident foreigner, provided that the cause of action
arose within the jurisdiction of the Court pronouncing the
judgement.
Many subordinate courts act under the supervision of the

Conseil dEtat as they deal with various issues such as the
national budget, the efficacy of the general administration
of the State, public enterprises and so on.
Apart from the two categories set out above there are other
specific types of jurisdictions which are totally different
from the ones mentioned above. There is the so-called
Tribunal des conflits, which in rank, is on top or above the
two orders of jurisdictions. It deals with matters that
involve the determination of competence amongst the two
known orders of jurisdiction, particularly when a conflict
of mandates arises. Its role is limited to determining the
jurisdiction which is competent in the matter. There is also
the Conseil Constitutionnel whose main role is to determine the constitutionality of laws. Its role has evolved
into an indirectly political one as it deals with cases
involving, for example, claims related to presidential or
parliamentary elections.
The term cause of action as used here applies to torts as

well as contracts. The meaning of the term cause of action
has been the subject of considerable controversy. It has
however been settled in the numerous decisions in which
the question has been discussed extensively in the context
of environmental litigation. It has been held that the term
means either every material fact which needs to be proved
by the plaintiff to entitle him to success, or everything
which if not proved, would give the defendant an
immediate right to judgement. The term is composed of
many components, including the requirement that there
must have been an infraction of the right claimed.
2.
JURISDICTION
SYSTEM
IN THE
The principles relating to civil liability for environmental

damage in France do not constitute a single body of law,
even though the Code of Civil Procedure and the Code of
Administrative Tribunals give an orientation as to the
methodological aspects of litigation in general, which also
concern environmental matters.
FRENCH CIVIL LAW
As in any other legal system, the competence of a court in the

French legal system means the courts jurisdiction.
Jurisdiction depends upon the nature or subject matter of a
suit and upon its location, but often not on the pecuniary limits
to the jurisdiction of the tribunal or court. While theories may
differ as to the sources of judicial authority, environmental
law suits now being litigated in many civil law countries,
including France typically are initiated by environment
protection organisations against Government agencies and
local authorities decisions. The standing of these
organisations rests basically upon their claim as being the
appropriate representatives of the public interest. The liability
of government bodies to be sued often depends on the existing
legislation. However, whether a suit will lie at the instance of
the Government depends on the existing substantive law.
These principles constitute a patchwork of concepts related

to rights and duties which have been developed by the
Courts and Tribunals over many years in the general area
of civil liability and compensation, and specifically, in the
area of the tort of nuisance.
In France, it is not necessary for the claimant to show that
ownership or occupation of land has been affected by a
public nuisance, as public nuisance is a criminal offence
as well as a civil tort. To be a public nuisance, the relevant
activity and its effects do not have to be widespread.
Increasingly, it is no longer necessary that a class or group
of citizens who come within the sphere or neighbourhood
of the operation of the nuisance must be materially affected
in terms of their reasonable comfort and convenience. The
grounds for civil liability for environmental harm result
either from a breach of statutory duty or are created by
specific provisions in the domestic legislation such as those
of the Code Rural.
As a commentator said, according to the exact conception

of it given by the Roman lawyers, Jurisdictionconsists
in taking cognisance of a case involving the determination
of some juror relation, in ascertaining the essential points
of it, and in pronouncing upon them. The word
jurisdiction is commonly used to mean jurisdiction in the
ordinary sense described above, that is, a reference to local
or pecuniary jurisdiction or to the Parties. It can also refer
to the subject matter of a suit or the legal authority of a
court to do certain things. All these possible meanings are
provided in the French Code of Civil Procedure, the Code
of Administrative Tribunals and the other Statutes that
create the specialised jurisdictions and make the distinction
between the two categories of legal settings (or orders):
the civil order and the administrative order.
The relevant environmental torts found in most civil law

systems are negligence, nuisance and trespass. In these
system most aspects of the law on nuisance can be
described as having been developed specifically to address
the consequences of pollution or other effects on the
environment of hazardous activities and substances. The
types of nuisance are based on the fundamental duty that
each person has not to conduct himself in a manner that
unreasonably interferes with the use by others of their land
and property or with the enjoyment of others public rights.
In determining liability in nuisance, the judge is required
to strike a balance between the interests of the claimant
and those of the defendant, having regard to the level of
interference that a neighbour can be expected to tolerate.
The existence of jurisdictions is primarily determined with

reference to the law of the country. However, it is a general
principle in civil law systems that whenever jurisdiction
is given to a court by an enactment, and such jurisdiction
is only given on certain specified terms contained in the
enactment itself, these terms must be complied with in
order to sustain the claim to jurisdiction. If they are not
complied with the claim to jurisdiction cannot be sustained.
This principle is emphasised in the French Code of Civil
Procedure and Code of Administrative Tribunals. However,
to found jurisdiction, there must, in the first place, be
authority to pass judgement, that is, the authority to
entertain judicial proceedings.
3.
Liability for injury caused to another is generally based

upon fault in French law, as provided in Article 1382 and
1384 of the Civil Code. Article 1384 provides that: A
person is liable not only for the damage he causes by his
own act, but for that caused by the acts of persons for
whom he is responsible or by things that he has under his
guard.
FRENCH CASE LAW AND ENVIRONMENTAL

LIABILITY
Article 1384 of the Civil Code is considered by the French

courts to have established a presumption of fault which
cannot be rebutted by claims that there was no fault, and it
is in fact similar to the system of absolute or strict liability,
in that the liability of the person who under his guard has
the inanimate object causing the damage is presumed liable,
unless he can prove that the damage was the result of Force
This part attempts to explain the framework within which,

in France, those whose property or health is harmed by
environmental hazards find compensation, and also to
define some of the principal areas of practice and procedure
that arise in bringing or defending environmental cases in
France, and in civil law systems generally.
Majeure, or the act of the plaintiff himself, or a cause

trangre which was normally unforeseeable so that the
damage was unavoidable and could not be imputed to him.
The continuing analysis and reappraisal by the tribunals

of the basic principles underlying these rights and
obligations in the environmental risk field is exemplified
in the more recent decisions of the Conseil dEtat , the
highest jurisdiction dealing with administrative matters in
France.
The presumption of fault, which is applied to the

automobile accidents for example, has been justified by
the French courts on the basis of the equitable
considerations on account of the large number of accidents
caused by motor vehicles and the impossibility in many
cases of proving fault on the part of the driver.
However, the cases dealt with by the Conseil dEtat give

the impression that it is not at ease with environmental
matters, particularly on issues that involve transboundary
aspects. The consequence of its attitude is illustrated in
the questions that arise from its Sentence of 18 April 1986
related to Socit Les Mines de Potasse dAlsace versus
Province de la Hollande Septentrionale et autres. In
that particular case there were no stipulations in
international law as at 22 December 1980, which would
have prevented the administrative authorities mentioned
in the case, from issuing pollution licences. To understand
this negation of any of the then existing international rules
by the French jurisdiction, it is worth reading the
conclusions arrived at by the Commissaire du
Gouvernement ( equiv. Attorney General), which are
remarkable from the point of view of the reasoning, but
contestable from the point of view of its substantial
foundations.
The application of Article 1384 in the area of environmental

risks and industrial accidents is appropriate. Further
guidance as to applying such a principle of liability can be
found in the following quotation from a case of an industrial
accident. An author pointed out that:
As machines took the place of man ... the number
of accidents not only increased but, and this is
more important, changed their character. Accidents
came to have very often an obscure origin, an
uncertain cause that made it hard to place
responsibility ... The victim had to deal with
powerful companies whose rules and obligations
they did not know and with whom they engaged
in such an unequal batter that they were defeated
in advance. The defendants took refuge behind
Article 1382 which, though it appears at first to
give a basis for recovery in many cases, actually
serves as a defence.
Meanwhile, in addition to making awards for compensation

in case of damage, in many cases, the civil law courts also
grant injunctions ordering persons causing environmental
harm to cease the activities, which are responsible for
damage. Injunctions may also be granted to restrain
activities, which threaten to do harm. Occasionally, such
injunctions may be mandatory, i.e. requiring the person
not only to stop the polluting activity complained of, but
also take a positive remedial action, such as to make safe a
source of that pollution or remove it.
Besides, the right of private individuals to bring civil claims

in respect of public and private nuisances is to be
distinguished from the power of local authorities such as
the so called prefet, in respect of statutory nuisances as
defined under the Law on the Classified Installations or
under the Rural Code. These laws impose administrative
duties and sanctions to the owners or operators of such
establishments as part of the prevention and inspection
policy and procedures.
The ability of private individuals, or groups, to enforce the

provisions of environmental protection legislation provides
a person aggrieved by a polluting activity with a legal means
of bringing pressure to bear on the person responsible for
that activity to abate it or to prevent its repetition. In France,
as in other countries, the threat of environmental litigation
for industrial concerns has increased greatly in recent times,
as the conceptual foundation of the principles of locus standi
are increasingly under test and scrutiny. This is a result not
only of wider powers of the environmental agencies to
impose remedial liability but of changes in public
administration and legal procedures that have increased the
will and capability of private individuals to bring civil action
claims against polluters. The claims concerning nuisances
and damage to health arising from pollution frequently
involve many claimants.
The tort of negligence also has wide application to a range

of public activities, particularly in the building industry
and in the field of regulatory control or nature protection
(eg the control of wild fires). The key elements here are:
A-
The existence of a situation in which the law requires

a person to exercise care towards other person(s)
who is or are the claimant(s),
B-
Breach by the defendant of the objective standard

of care,
C-
Establishment of a link between the carelessness and

the damage or injury which has resulted, and,
D-
The reasonable foreseeability of the carelessness

giving rise to the damage or injury which it has
caused.
As far as procedure is concerned, the institution of legal

suits is made by the presentation of a plaint to the court, in
which a person sets forth his cause of action in writing.
This can be in situations where either general legal
10
principles are involved, - (principles of common

application in almost all countries), or where those in which
the French jurisprudence notions prevail.
are usually issued: - a permit or licence, which is less

permanent and easily revoked, and - a concession, which
sets up reciprocal rights and obligations between the
grantor and the grantee. This is the main feature of major
French environmental legislation and other resourcecontrol based legislation in most countries that are
attempting to modernise their environmental legislation.
The particular elements of the environment-related

jurisprudence found in the French legal system simply
constitute the context in which the policy issues such as
combating water pollution, the management of classified
establishments (or installations), protection of fauna, flora
and the like, are resolved through the judicial system.
However, the common characteristic of any legal system
is that before any environmental resource that is declared
public can be used, some kind of authorization from the
government authority is necessary.
In the French legal system, provisions to afford better

administrative control over the management of environmental resources are often introduced by statutes that give
the courts enough power to define or determine the rights
of users so long as they observe the existing legal provisions
and the balance of the interests involved, particularly with
the respect due to private property and public interest. The
licencing or administrative authorizations and the inspection
systems are adopted in order to subject most natural
resources to administrative control.
Lack of such an authorization, or shortcomings in the

procedures for obtaining such an authorisation are
considered as an offence. In that area, two kinds of permits
11
I V
T H E M A T I C
A R R A N G E M E N T S
D E C I S I O N S
OVERVIEW
i.
ii.
This volume features three themes as follows: physical

planning; use of police power in environmental management;
and the place of culture in environmental management. As
pointed out already the attempt at categorization should not
mislead the reader into taking the view that the cases
reproduced illustrate only one theme in each case; on the
contrary, the majority of the cases deal with more that one
issue. Therefore the categorization is based on that aspect
of the case which provides the cases most unique
contribution to the development of jurisprudence on
environmental law. The reader is therefore urged to approach
the task of reading the material presented here with an open
mind in order not to preclude an appreciation of other,
equally important, aspects of the various cases.
iii.
iv.
v.
vi.
vii.
(i)
PLANNING
CONTROL
O F
J U D I C I A L
Summers v The Far North District Council, Decision

A132/98, New Zealand
National
Association
of
Professional
Environmentalists v AES Nile Power Ltd, Misc.
Civil cause No. 268/99, Uganda
Bulankulama v The Secretary, Ministry of Industrial
Development, S.C Application No 884/99, Sri Lanka
Save the Vaal v The Director Mineral Development
Gauteng Region, Case No 97/021011 South Africa
Paykel v the Northland Regional Council, No. 8/
99, New Zealand
Farooque and Sekandar Ali Mondol v Bangladesh
Ravensdown Fertilizer Co-op Ltd & Smith v Otago
Regional Council, Decision No. A86/99, New
Zealand
Summers v The Far North District Council,
1998, (New Zealand)
This case highlighted the fact that the role of development

planning is to advance the public interest rather than the
interests of one landowner. It arose out of a claim by an owner
of a farm, Mr. Summers, that, as a result of over drainage and
inadequate clearing of public drains the condition of his farm
had deteriorated considerably. He sought orders stopping the
over-drainage and the restoration of the condition of his farm.
He further sought orders that the respondent be stopped from
doing any work on drains and watercourses in the drainage
district without first having consulted with him and obtained
his consent to the works.
Most countries have a system for controlling the activities

and changes (developments) which an owner of land may
carry out on the land. This system is referred to as the
planning system or zoning. Planning control involves
two stages: preparing development plans and the process
of development control. Development plans are in effect
policy documents setting out the relevant policy in
accordance with which changes in land use will be
permitted, while development control refers to the process
of approving applications by persons to carry out proposed
specific development activities. The approval is often based
on the extent to which the proposed development conforms
to the development plan which, therefore, is a necessary
prerequisite for development control.
The District Council, on the other hand, maintained that it

should not be required to obtain Mr Summers consent in order
to carry out drainage works which were for the benefit of the
entire district. It stated that it intended to adopt a management
plan for the drainage district and works would then be carried
out in accordance with the management plan. The court held
that the management plan proposed for the drainage district
would be an appropriate way to proceed in specifying the
standards of clearing and other maintenance work. And that
even though evidence showed that the drains and the
watercourses had not been kept clear of weeds and as free
flowing as may be possible at all times, Mr Summers was not
entitled to expect that standard at all times.
Planning control serves as a mechanism for environmental

management. It enables relevant authorities to regulate the
proliferation of environmentally undesirable activities and
nip them in the bud, either by declining to grant permission
or by imposing conditions to be complied with before, or
in the course of, implementing the project. In this respect
development control relies heavily on environmental
impact assessment to provide the information needed for
predicting the nature of potential environmental impacts
of the proposed project. EIA therefore is an integral aspect
of planning control.
(ii) National Association of Professional

Environmentalists v AES Nile Power Ltd, 1999,
(Uganda)
The following cases illustrate the intervention of the

judiciary in the process of development control, and the
way in which reliance is placed by litigants and judges
alike on the compliance or otherwise of the proposed
development with the development plan as the yardstick
for determining the acceptability of the proposed
development. The cases are as follows:
This case raised the issue of the stage at which an EIA

needs to be conducted in the development control process.
It arose out of steps taken by the Government to sign an
agreement for the development of a power project. The
12
applicant sought an injunction to stop the respondent

concluding a power project agreement with the Government
of Uganda until NEMA had approved an environmental
impact assessment study of the project. The applicant argued
that by signing the agreement the parties would circumvent
the requirement for an EIA as following the agreement the
Government would be bound by its terms to implement the
project, rendering the EIA process a formality.
the applicants were entitled to be apprehensive that even

if there was an EIA submitted to the Central Environmental
Authority, the authority would not be able to act impartially
in view of the fact that the agreement bound the
Government to assist the company in obtaining the
necessary approvals. The court ordered the respondents to
desist from entering into the proposed agreement pending
a comprehensive EIA study.
The court held that signing the agreement per se would

not lead to an environmental disaster. Any action based on
the agreement could be challenged and therefore the
application was premature.
(iv) Save the Vaal v The Director Mineral

Development Gauteng Region, 1997, South
Africa
In this case the applicant sought a review of the decision
to grant a mining authorization for the establishment of an
open case mine on the river bank of the Vaal River. The
complaint was based on the failure of the 1st respondent
to give the applicant an opportunity to be heard. The Court
held that the applicant was entitled to be heard prior to the
respondent taking a decision whether to grant or not to
grant authorization or the right to mine.
(iii) Bulankulama v The Secretary, Ministry of

Industrial Development, 1999, (Sri Lanka)
This case also raised issues regarding the stage at which
an EIA must be conducted. It resulted in a different ruling
from the Uganda case above.
The Government of Sri Lanka sought to enter into an
agreement with a foreign company for the manufacture of
phosphate fertilizer using local deposits of apatite. The
applicants petitioned the courts to stop the proposed
agreement on the basis that their lands were in danger of
being destroyed if the proposed mining project was
implemented and that about 2,600 families (or 12,000
persons) were likely to be permanently displaced from their
homes and lands.
(v) Paykel v the Northland Regional Council, 1999,

New Zealand.
The appeals in this case related to a proposal to develop a
fishing lodge and associated facilities. The Regional
Council had granted coastal permits for a boat ramp, and a
dingy pull mooring, discharge permits for waste water and
storm water, and a water permit to take water from a deep
bore.
The respondents countered that there was no need to feel

any apprehension at the exploration and feasibility study
stages, which is what the signing of the proposed agreement
would lead to. They argued that it was only after the
exploration and feasibility study had been done, the
approval of all statutory authorities been obtained, and the
Secretary had accepted the feasibility report, that the
company would be permitted to proceed to the construction
and mining phases of the project.
The appellants alleged that the proposed lodge and fishing

facilities would be inappropriate having regard to the
location, proposed scale, intensity, function and design of
the development. But the court held that the Resource
Management Act did not mandate tranquility and solitude,
or an absence of any change, neither did the planning
instruments. The court held further that the activity
generated by the fishing lodge would be an addition to the
activity already carried out there, but that the increase in
activity would not be so great as to qualify as degrading
the amenity values of the bay to a significant extent.
The court held that although mining may have the more
devastating consequences, exploration was not so harmless
as to cause the applicants no apprehension of imminent
harm to their homes and lands. Further, that the agreement
provided for all stages of the project and therefore the
totality of the proposed agreement needed to considered
in deciding whether there was an imminent infringement
of the applicants rights. The court held that there was
nothing in the proposed agreement to show that its signing
would only result in exploration and a feasibility study. It
was a comprehensive, all embracing document.
(vi) Farooque and Sekandar Ali Mondol v

Bangladesh, (Bangladesh)
In this case two petitions questioned the activities and
implementation of a flood control programmne (FAP-20)
undertaken in the District of Tangail in Bangladesh. The
petitioners pointed to an apprehension of environmental
ill effects arising from the flood control plan which would
affect the life, property, livelihood, vocation and
environmental security of more than 1 million people.
The court further heard that the proposed agreement

ignored the Central Environmental Authority and
substituted in its place the Secretary to the Minister to
whom the subject of minerals and mines was assigned for
the purpose of approving the environmental study
contemplated by the proposed study. The court held that
The court held that the FAP-20 was a developmental project

aimed at controlling floods which regularly brought
miseries to the flood prone areas of the district of Tangail.
Further, that any interference with the project would
13
deprive the country of the benefits to be derived from the

implementation of the scheme and also from getting foreign
assistance. The Court held that it would be impractical to
stop the work. But in implementing the project, the court
held that the respondents could not with impunity violate
the provisions of the law. The court therefore ordered the
respondents to comply with the law on drainage and
resettlement of displaced persons.
a constructive taking) even though the actual use or the

forbidden use has not been transferred to the government
so as to amount to a confiscation in the traditional sense.
In the US where the jurisprudence on this issue has
advanced particularly far, the courts have held that whether
or not a confiscation has occurred depends upon whether
the restriction practically or substantially renders the land
useless for all reasonable purposes. If the land can be put
to some beneficial use the restriction will not be considered
unreasonable. Further, if the damage is such as to be
suffered by many similarly situated and ought to be borne
by the individual as a member of society for the good of
public safety or health or the general welfare, it will be
considered a reasonable exercise of police power; but if
the damage is so great to the individual that he ought not
to bear it under contemporary standards, then courts are
inclined to treat it as a taking of the property or an
unreasonable exercise of the police power.
The final two cases illustrate the use of conditions to protect

the environment while granting permission in
circumstances where the project proposed poses
environmental problems.
(vii) Ravensdown Fertilizer Co-op Ltd & Smith v
Otago Regional Council, 1999, (New Zealand)
Revensdown Fertiliser Coop Ltd sought amendments to
various conditions attached to coastal and discharge air
permits. At the same time, the appellant, Mr. Smith, sought
to overturn or vary the Councils decision in favour of
Ravensdown allowing discharges to the atmosphere on the
ground that the decision was inadequate to protect its
property and the residential environment of Ravensdown
generally. The court held that the conditions for discharges
to the atmosphere as formulated represented the best
practicable options for mitigating the various actual and
potential effects upon the amenity values of the surrounding
area and the quality of the environment, while at the same
time efficiently utilizing the substantial plant and resources
represented by the works.
The state takes property by eminent domain (the theory

that the state is the owner of last resort of all property)
because the property is needed for a purpose that is useful
to the public, and restricts use of property under the police
power where such use is harmful to the public. From this
results the difference between the power of eminent domain
and police power. Where property is taken under the power
of eminent domain the owner is entitled to compensation
but if use of property is restricted in exercise of police
power there is no right of compensation. Thus the necessity
for monetary compensation for loss suffered to an owner
through the exercise of police power arises when
restrictions are placed on property in order to create a public
benefit rather than to prevent a public harm.
POLICE POWER AND COMPULSORY ACQUISITION

IN ENVIRONMENTAL MANAGEMENT
In the absence of planning control a landowner may do as

he pleases with his land, and is kept in check only by the
prospect of complaints from neighbouring landowners. As
long as neighbours do not complain, a landowner has no
obligations to protect the environment or to refrain from
damaging actions or omissions on his land.
The cases that follow illustrate the use of police power for
purposes of environmental protection. The case arise out
of challenges by landowners of the powers in question as
being unreasonable and unjustified. The cases therefore
illustrate the courts interpretation of restrictions which may
be considered a valid exercise of police power.
Planning control limits the rights of a landowner over his

land. The right of the state to control the uses to which a
landowner may put his land is referred to as police power.
The law of most jurisdictions recognizes the right of the
state to protect the publics interest. Such curtailment of a
landowners rights may however amount to a confiscation
of the rights in question.
(viii) Just v Marinette County, 201 N.W. 2d 761 (USA)

(ix) Hatton v The Far North District Council, Decision
No A 25/98 New Zealand
(x) Daroux v The Minister of Lands, Decision No A 88/
99 New Zealand
The distinction between the legitimate exercise of the

police power and the confiscation of the rights is a matter
of degree of damage. Where the restriction involved can
be considered reasonable, the exercise of police power is
valid and the damage suffered by the owner is simply an
incidental consequence of an otherwise valid action.
However where the restriction is so great the landowner
ought not to bear such a burden for the public good, the
restriction has been held to be confiscatory (or in the US,
This was a case in which landowners sought declaratory

judgment that a shore land zoning Ordinance was
unconstitutional. The county had sought a mandatory
injunction to restrain the landowners from placing fill
material on their property without first obtaining a
conditional use permit as required by the Ordinance.
(viii) Just v Marinette County (USA)
In 1961 several years prior to the passage of the Ordinance

the Justs purchased land along a navigable lake.
14
Subsequently the Ordinance in issue was passed and the

land owned by the Justs was designated as a swamp.
Following this, in order to place more than 500 sq. ft of
fill on this property, the Justs were required to obtain a
conditional use permit. In 1968 after the Ordinance became
effective the Justs, without securing a conditional use
permit, hauled sand onto the property in violation of the
Ordinance.
developments on the land acquired. The Court held that

defining the area of land to be taken for the road as
extending to the adjoining property boundaries was for
the purpose of the road and was not for a collateral purpose
of promoting private interests. The court held that for the
District Council to have defined the land to be taken by
leaving strips of land in the Hattons ownership to give them
the power to control sub-division and development on
neighboring properties would be to diminish the public
purpose of the road for the private benefit of the Hattons.
The court ruled that allowing adjacent properties frontages
was a proper exercise of the Councils power.
The issue before the court was whether the wetland filling
restrictions were unconstitutional because they amounted
to a constructive taking of the Justs land without
compensation. The County argued that the restrictions were
a proper exercise of police power and did not so severely
limit the use or depreciate the value of the land as to
constitute a taking without compensation.
(x) Daroux v The Minister of Lands, 1999, (New

Zealand)
Daroux v The Minister of Lands was a case in which the
applicants objected to a notice of intention to take an
easement against the titles to their properties. The notices
were issued following an application to the Minister by
Counties Power Ltd for the purpose of allowing an
electricity line.
The court held that this was a restriction on the use of a

citizens property not to secure benefit to the public but to
prevent harm from the change in the natural character of
the citizens property. It held that the public purpose sought
to be obtained by the Ordinance was to protect navigable
waters and the public rights therein from the degradation
and deterioration which would result from uncontrolled
use and development shorelands. The Ordinance provided
for permitted uses and conditional uses, one of which was
the conditional filling, drainage or dredging of wetlands
under a conditional use permit.
The changes in the electricity sector had led to a situation

whereby power companies could be sold to the private
sector. Under the old law, electricity boards had powers to
enter upon private land for the purposes of constructing,
maintaining and repairing power lines. Those wide powers
were not transferred to the new entities and, with regard to
power lines, the statutory authorities were restricted to
maintaining and operating those lines that were in place
prior to the privatization. Counties Power now required
registered easements and had to rely on consultation and
negotiation with landowners. If negotiations failed they
had to apply to the Minister of Lands to have the land
acquired or taken as if the work was government work.
The effect of any proclamation taking the land would be
to vest the land in the utility operator instead of in the
Crown. Accordingly, any easement would become an asset
of the utility operator and could be assigned, sub-let or
otherwise disposed of.
Accordingly, the shore land zoning Ordinance was not

unconstitutional as being confiscatory or unreasonable.
(ix) Hatton v The Far North District Council, 1998,
New Zealand
This case illustrates the public purpose criterion which must
be met before deciding whether private property may be
compulsorily acquired.
In 1996 the Far North District Council gave notice to the
Hattons of its intention to take part of their land at Taupo
Bay for a road. The Hattons objected to the proposal, inter
alia, for the reasons that the land was sought to be taken to
further private interests rather than the public interest. The
argument was that the District Council was seeking to
acquire the land for the private benefit to the owners and
residents of the properties of Taupo Bay, properties which
over a period of many years had been sub-divided and
developed without a legal road access. Secondly, the
Council was seeking to take more land than the minimum
amount necessary, for the collateral purpose of giving
adjacent properties frontages to the road which they did
not previously have.
The court held that even in these circumstances compulsory

acquisition still served a public purpose. It stated that while
the lines and their easements were valuable assets, the
commercial benefit of supply must not distract attention
from the need to ensure continuity of supply to consumers.
THE PLACE OF CULTURE IN ENVIRONMENTAL

MANAGEMENT
Increasingly, local communities assert a right to a role in

the management of local environmental resources. At times
these claims are made in the context of litigation. In a few
jurisdictions statutory recognition has been given to the
communitys role in environmental management. The best
example of such a jurisdiction in New Zealand, from which
the bulk of the court cases reproduced in this section have
been drawn. Therefore some explanation of the New
The Council argued, and the Court accepted, that the road
was intended to be used by the public generally, and was
not confined to use by the owners of the land. Secondly,
the Hattons wanted the area taken to be kept to a minimum
and to retain strips to give them control over future
15
relation to managing the use, development and

protection of natural resources, shall recognize
and provide for the following matters of national
importance: the relationship of Maori and their
culture and traditions with their ancestral lands,
water, sites, waahi tapu (meaning special and
sacred places), and other taonga (meaning valued
resources).
Zealand law on the role of the Maori peoples in

environmental protection is given below.
The indigenous people of New Zealand are the Maori
(known as tangata whenua the Maori term for people of
the land). Maori interests in natural resources management
are provided for in the Resource Management Act 1991.
Section 5(2) defines sustainable management as managing
the use, development, and protection of natural and
physical resources in a way or at a rate which enables
people and communities to provide for their social,
economic and cultural well being and for their health and
safety while (a)
(b)
Section 7(a) requires attention to a related matter: In

achieving the purpose of this Act, all persons exercising
functions and powers under it in relation to managing the
use, development and protection of natural and physical
resources, shall have particular regard to kaitiakitanga
(responsibility).
sustaining the potential of natural and physical

resources to meet the reasonably foreseeable needs
of future generations; and
avoiding, remedying or mitigating any adverse
effects of activities on the environment.
The cases that follow illustrate the application of the above

statutory provisions in the context of specific applications
for resource consents.
(xi)
This section provides a mechanism for protecting Maori

interests in so far as it refers to people and communities
which include Maoris, and by its reference to cultural well
being (including Maori culture).
(xii)
(xiii)
A Maori family is a hapu while a Maori tribal group is

an iwi. The courts have held that an iwi are a people and
a community within the meaning of section 5(2).
(xiv)
A second mechanism for protecting Maori interests arises

out of the requirement to take into account the principles
of the Treaty of Waitangi between the Maori and the British
Government at the time of the occupation of New Zealand.
Section 8 of the Resources Management Act states as
follows:
(xvi)
(xv)
Kotuku Parks Ltd v The Kapiti Coast District

Council, (New Zealand)
Robert Te Kotahi Mahuta v The Waikato Regional
Council and Anchor Products Ltd, (New Zealand)
Contact Energy Ltd v Waikato Regional Council,
(New Zealand)
H Te M Parata v The Northland Regional Council,
(New Zealand)
Yanner v Eaton [1999] HCA 53 (7 October 1999),
(Australia)
Attorney General v Lahoy Akonaay, (Tanzania)
(xi) Kotuku Parks Ltd v The Kapiti Coast District

Council (New Zealand)
This case related to appeals concerning the subdivision of
land at the mouth of the Waikanae River for residential
development. Kotuku Parks Ltd had bought land there in
the 1970s and had already completed subdivision and
development of considerable areas which were now occupied
by houses. The current proposal was called Stage IV.
In achieving the purposes of the Act, all persons exercising

functions and powers under it, in relation to managing the
resources, shall take into account the principles of the
Treaty of Waitangi. (Te Tiriti o Waitangi). Treaty
principles include consultation, partnership, active
protection, and informed decision-making. The Treaty
requires consultation with the Maori (tangata whenua)
often through their representatives (kaitiaki). Kaitiaki are
iwi (families) or hapu (tribal groups) with responsibilities
to take care of their natural resources within their
geographical territory (kaitiakitanga). However the right
to be consulted does not give the Maori a veto over
proposals.
The Kapiti Coast District Council granted subdivision

consents and consents for the required earthworks. Te
Runanga O Atia Ki Whakarongatai (the Runanga) is the
iwi authority for a number of hapu who hold mana
whenua over lands on the Kapiti Coast. The Maori people
represented by the Runanga claimed a relationship with
that land as ancestral land containing waahi tapu, and a
responsibility in respect of the area generally as kaitiaki.
It was the case for Kotuku Parks Ltd that the Goodman
family are tangata whenua of the subject land, based on
long and close association with the site and the Waikanae
Estuary, and that they exercise kaitiakitanga over the area.
The Goodman family supported the project. Kotuku Parks
Ltd contended that the views of that whenua should be
given primary weight. It maintained that kaitiakitanga was
addressed by involvement of the Goodman whenua in the
project. It was also the District Councils case that the
Finally section 6 of the Resources Management Act defines

matters of national importance. The section requires that
matters of national importance be recognized and provided
for. In the context of the protection of Maori interests,
section 6(e) states as follows:
In achieving the purposes of this Act, all persons
exercising functions and powers under it, in
16
Goodman whenua are tangata whenua and claim mana

whenua over the land.
It was Te Runangas case that the District Council had not

consulted adequately with it over Kotuku Parks Ltd Stage
IV project, and Te Runanga had been prejudicially affected.
In particular it claimed that the District Councils
consultation with Te Runanga had been limited to matters
contained in the archeological assessment, and had not
extended to resource management issues. Te Runanga
submitted that the consent authority, as an agency
exercising powers and functions under the Act, has a duty
to consult, and a duty to provide for active protection.
Te Runanga did not seek to contest the question as to who

had mana whenua. It asserted that its hapu have lived in
that place since 1818, and many tribes before them; and
that the estuary area in general has special associations for
the iwi and hapu of Te Ati Awa. Te Runanga also submitted
that kaitiakitanga had been misinterpreted by Kotuku Parks
Ltd and the District Council, and contended that it had to
be exercised in accordance with tikanga Maori, by which
substantial decisions are only made following hapu and
iwi marae hui.
The Court held that the regional of district council, acting

in its capacity as consent authority under the Resource
Management Act to hear and decide a resource consent
application, did not itself have a duty to consult with Maori.
Its duty is to be on enquiry that there has been consultation
where that is appropriate. In that respect, a report to the
consent authority on the resource consent application by
officials or consultants of the Council should address that
issue. However, consultation was not an end in itself, but
a way of taking relevant principles of the Treaty into
account. In practice it was the applicant who would need
to consult with the Maori, in cases where that was
appropriate, to avoid the risk of the application being
postponed or refused by the consent authority if it was not
satisfied that grant of the resource consent would be
consistent with its duty to take into account the principles
of the Treaty. The Court held that the consultations with
tangata whenua was not sufficient to enable the primary
consent authority to be confident that it had the
understanding necessary to take into account the relevant
principles of the Treaty in deciding the resource consent
applications. However the court acknowledged that it had
had the benefit of Te Runangas case presented at the de
novo hearing of the applications on these appeals, so that
it was able to take their concerns into account.
Testimony was given that the Waikanae River is a central

feature in the tribal lands. Although they no longer owned
the land, tangata whenua still have a demonstrable
relationship with the area, in that it had profound landscape
and cultural associations including sites of ancestral
occupation and of battles and burials (which remain as
waahi tapu). The witness claimed that their ability to be
kaitiaki for the river and the coastal environment would
be adversely affected. He explained that the scale and
nature of the development would have a profound effect
on the ecological integrity, natural character and intrinsic
values of the area for which they are kaitiaki, to safeguard
its wairua and mauri (life force) for future generations.
The court held that neither section 6(e) nor section 7(a)
called for a consent authority (or the Court of appeal) to
make any decision about ownership of land, about the
extent of the role of any iwi or hapu, about who are tangata
whenua, or who are kaitiaki, in respect of a particular area
or site. The evidence was that Maori have cultural and
traditional relationships with the subdivision site and its
environs, that those are ancestral lands of theirs, and that
the sites and their environs are places of past occupation
by their ancestors. The evidence also established that the
subdivision site is the subject of kaitiakitanga. If the
proposed development occurred, it would limit the capacity
for exercise of kaitiakitanga in respect of safeguarding the
wairua and mauri of the sand dunes, and their association
with past occupation by their ancestors.
(xii) Robert Te Kotahi Mahuta v The Waikato

Regional Council and Anchor Products Ltd,
(New Zealand)
In this case, Anchor Products Ltd wished to expand the
capacity of its dairy factory at Te Rapa, and to install a
new gas fired cogeneration plant (in place of an existing
coal fired power plant) to supply energy to the expanded
milk processing plant. The cogeneration plant was
originally intended to generate up to 150 megawatts of
electricity, but Anchor Products reduced the size of the
proposed plant to 45 megawatts, with consequential
reductions in the quantities of water to be taken from the
Waikato River, and to wastewater to be discharged.
The court next considered the applicability of the Treaty

of Waitangi principles as provided for in section 8 of the
Resource Management Act. This provides that: In
achieving the purpose of this Act, all persons exercising
functions and powers under it, in relation to managing the
resources, shall take into account the principles of the
Treaty of Waitangi.
Applications were made to the Waikato Regional Council

and to the Waikato District Council for resource consents
needed for the project. An appeal to the Environment Court
arose from a joint decision of the Waikato Regional Council
and the District Council granting those resource consents.
A principle of the Treaty requires consultation with Maori

in respect of projects that may affect their cultural interests.
A consent authority has to take those principles into account
in reaching its decision.
17
The appellants were Robert Te Kotahi Mahuta, WaikatoTainui, Tainui Maori Trust Board and Nga Marae Toopuk.
Waikato-Tainui are the descendants of the Tainui Waka.
Sir Robert Mahuta is principal negotiator on behalf of
Waikato Tainui in respect of a claim by them under the
Treaty of Waitangi Act 1975 for the Waikato River. Tainui
Maori Trust Board is a statutory body incorporated under
the Maori Trust Boards Act 1955, and is the iwi authority
of the iwi of Waikato. Nga Marae Toopu is a body
representing all marae in the wider group of Tinui, and
which has mandated Sir Robert Mahuta to represent them
on all matters concerning the Waikato River.
The court noted that the term environment is given

extended meaning to include: (a) ecosystems and their
constituent parts, including people and communities; and
(b) all natural and physical resources; and (c) amenity
values; and (d) the social, economic, aesthetic and cultural
conditions which affect the matters stated in paras (a) to
(c) or which are affected by those matters.
The court therefore had to have regard to effects of allowing
the proposed activities on the cultural conditions which
affect Maori community, and in particular how the effects
of the proposal may have an impact on the present and
future relationships and future relationship of Waikato
Tainui with the river.
The appeal was directed to three matters: the special

relationship of Waikato-Tainui with the Waikato River, the
adverse effects on the river of taking water from the river
and of discharging contaminants into it, and the inadequacy
of consideration by Anchor Products and its advisors of
alternative methods of wastewater disposal.
On the effects of the proposal on the relationship of the

Maori with the river, even the perception of contaminants
flowing from the site into the river would cause offence.
In that regard a witness deposed that there was no need for
discernible physical adverse effects, nor would it depend
on any particular concentration of contaminants, but any
amount of contamination would constitute a serious
adverse effect to the relationship of Waikato-Tainui with
the Waikato River.
The Waikato Tainui have a special relationship with the

Waikato River which is of fundamental importance to their
social and cultural well being. The planning instruments
also recognize the special relationship between the Waikato
Tainui and the Waikato River. What was at issue was the
significance to be given to that relationship in deciding
the resource consent applications before the Court.
The Court found that there would not be adverse effects

on the river environment of allowing the proposal. It found
that the Waikato River is an outstanding water body and
that Waikato Tainui had a deep and special relationship
with it of a cultural and spiritual kind; and that the
relationship would be impaired by activities which result
in deterioration of the quality of the water of the river. It
also found that the proposal had been developed and
designed in ways and recognized and provided for that
relationship, and for the kaitiakitanga of Waikato-Tainui,
in accordance with the objectives and policies of the
regional policy statement. The extent of the wastewater
treatment, the protection for the Mangaharake Pa, and the
specially designed discharge facility, were all examples of
efforts to give effect to Maori interests. Further that setting
an appropriate limit on the content of phosphorus in the
discharge, complementary with the limits on other contents
of the discharge would also recognize and provide for that
relationship and for the kaitiakitanga of Waikato-Tainui.
A central tenet of this relationship was the metaphysical

aspect of the Waikato River, its mauri, and the associated
metaphysical phenomena. Evidence illustrated the
appellants belief in profound spiritual powers connected
with the overall identity of the Waikato River.
At an early stage in the assessment of environmental effects
of the proposal Anchor Products advisors had consulted
with Haukina Development Trust, which was the
environmental arm of the Tainui Maori Trust Board, and
which had the mandate to address all resource management
issues for the Waikato iwi. The subject of the consultations
had included disposal of wastewater from the treatment
plant in a way that would meet the cultural requirements
of the tangata whenua. The Haukina Development Trust
advised that the existing discharge pipe into the river should
not be used and recommended that instead two gully
systems on the anchor products site should be used. As a
result of the discussions with the Haukina Development
Trust and with Nga Marae Toopu, a design was developed
for discharge of treated wastes, storm water, and cooling
water to an infiltration bed at the head of the gully, from
which water would then pass into the gully, which was to
be lined with concrete and a channel filled with rock and
weirs, and would lead to a specially designed submerged
rock-filled conduit discharge structure, discharging to the
Waikato River. It was explained that the rocks would
represent Papatuanuku, and that would meet the cultural
requirements of the tangata whenua.
The most important provisions were those directing

recognition and provision for the relationship of Maori and
their culture and traditions with the ancestral water; directing
particular regard to kaitiakitanga; and directing taking into
account the principles of the Treaty of Waitangi. The contents
of the Waikato district plan and the Waikato regional policy
statement, and the evidence given in the case confirmed that
those provisions were applicable to the relationship between
the Waikato Tainui and the Waikato River.
Principles of the Treaty of Waitangi called for the
Crown and Maori to act reasonably and in good
18
faith towards each other, and that was applied in

resource management practice to expect
proponents of development proposals which may
affect Maori cultural or spiritual interest to consult
with Maori about their proposals, and consent
authorities to receive and have regard to advice
about the effects of proposals on those Maori
interests.
cultural interests of the Waikato Tainui people would be

provided for in so many other ways which would avoid
tangible harm to the river, the perceptions which are not
represented by tangible effects did not deserve such weight
as to prevail over the proposal and defeat it.
(xiii) In Contact Energy Ltd v Waikato Regional
In this case the consultation with Waikato-Tainui on behalf

of Anchor Products had tangible beneficial results. Both
the intake structure for taking water form the river and the
discharge structure for disposing of treated wastewater, were
deliberately designed to respond to the cultural wishes of
the Waikato Tainui. In particular the evidence showed that
the design of the discharge structure would not have been
justified by engineering or environmental considerations,
but only by a willingness by Anchor Products to meet their
cultural requirements. In addition the reduction in the
capacity of the cogeneration plant responded to the wish of
the Waikato-Tainui that the taking of water be limited to
the minimum amount. The wastewater treatment plant was
to be designed to limit the contaminants to be discharged to
the river, consistent with the cultural requirements Waikato
Tainui that it be fit for spiritual use, as well as the more
pragmatic contents of the proposed regional policy
statement. Moreover Anchor Products had acknowledged
that it respects the cultural and spiritual significance of the
Waikato River to Waikato Tainui; had undertaken to
maintain a programme of continuous improvement of its
environmental impact on the Waikato River and to enhance
the quality of the river as agreed to participate with Waikato
Tainui in a public education programme to promote
environmental improvement of the Waikato River, and to
encourage others to take part.
In this case Contact Energy Ltd has appealed against

decisions by the Waikato Regional Council and Taupo
District Council refusing resource consent for a proposed
geothermal power station near Taupo. Opponents of the
application included the Tauhara Middle Trusts (which hold
over 1635 hactares of land over part of the Tauhara
Geothermal Filed in trust for 2400 members of the Tauhara
hapu).
It was the case for the Tauhara Middle Trusts that the
Tauhara hapu have a special relationship with the Tauhara
geothermal resource, which they regard as a highly valued
taonga. They sought exclusive and undisturbed possession
of the resource; they do not wish Contact to have access to
any more of the limited and non-renewable geothermal
resource from the Wairakei/Tauhara geothermal system.
They submitted that, in determining what was sustainable
for a resource which is taonga of Maori, consideration is
required of whether it is sustainable from a Maori
perspective, and that only Maori can answer that question.
It was the case of the Tauhara Middle Trusts those members
of the Tauhara hapu act as kaitiaki of Mt Tauhara and of the
Tauhara Geothermal Field, and that this includes customary
authority over the resource. The Trusts sought that
recognition of their kaitikitanga be expressed in their having
a future involvement in the management of the resource in
consultation with those who exploit it, so that there may be
active protection of the taonga, and to ensure that the time
frame of the exploitation was culturally acceptable.
The adverse effect on the relationship of Waikato Tainui

with the river and on kaitiakitanga would be recognized
and provided for and mitigated in four separate ways. First,
by minimizing the amount of water to be taken, and design
of the intake structure to meet their cultural needs. The
second was by treatment of the wastewater to be discharged
to meet appropriate limits in the conditions, and design of
the discharge structure to meet their cultural needs. The
third was by provision for early review to the limits of
contaminants in the discharge. The fourth way was by
acknowledgments by Anchor Products of the deep cultural
cultural and spiritual significance of the Waikato River to
Waikato Tainui, backed up by undertakings in support of
enhancing the quality of water of the river, and about
protection of Mangaharake Pa.
A witness testified that kaitiaki are decision makers over

taonga within their areas of mana whenua, and that
kiatiakitanga includes the right to make decisions over all
levels of development of the taonga in accordance with
their tikanga. Section 7(a) of the Act directs functionaries
to have particular regard to kaitiakitanga. The court held
that that had to be read in context of an Act which entrusts
decisions on sustainable management of natural and
physical resources to particular classes of consent
authorities. The Court held that it could not meet a claim
by kaitiaki to make decisions that were inconsistent with
the scheme of the Act which provides for decisions to be
made by regional councils and district councils.
The ways in which the cultural needs of the Waikato Tainui

would be recognized and provided for would not extend
to avoiding all perception of contaminants flowing into
the river, irrespective of physical effects. That could only
be avoided by discharge of wastewater to land, an option
which itself would have considerable practical difficulties.
The court found that because the community value of the
proposed expansion of the dairy factory and because the
The court held that if resource consents were granted

particular regard may appropriately be given to the
kaitiakitanga responsibilities of the Tauhara iwi in respect
of the Tauhara geothermal field. That could be done by
conditions requiring that they are provided with
19
information, and allowing for them to offer advise about

Maori cultural and spiritual matters relevant to the exercise
of the resource consents.
It was claimed that the role of the community liaison group

was to act in a manner akin to that of kaitiaki in that its
stated purpose of having discussions with the consent
holder, reporting to local authorities about the development,
and recommending studies designed to improve the health
of the harbour were roles that have traditionally been
fulfilled by kaitiaki. It was argued that priority has been
given to resident and rate payer groups and citizens
associations representing communities but there had not
been an attempt to recognize and provide for Mr Parata
and his hapus kaitiakitanga. It was submitted that the
community liaison group would in effect be usurping the
role that has traditionally been carried out since time
immemorial by Mr Parata, Te Waiariki, Ngatikoroa and
Ngatiwai.
Counsel for Tauhara Middle Trusts submitted that

consultation by Contact with Maori had been insufficient.
However Contact had endeavored to open lines of
communication with the Tauhara hapu but it had been
frustrated in its efforts to identify a group who not only
claim, but actually have, a mandate to represent them.
(xiv) H Te M Parata v The Northland Regional
This was a case in which the Northland Port Corporation
Ltd proposed to establish a new deep water port in the
Whangarei Harbour at Marsden Port. Hori Te Maonaroa
Parata appealed against the decision to grant consent on
the ground of the relationship of Maori and their culture
and traditions with their ancestral land, water, sites, waahi
tapu and taonga, and to that the consent would impact on
the ability of the tangata whenua to fulfil their role as
kaitiaki. They appealed also on the ground that the
principles of the Treaty of Waitangi requiring consultation
had not been adhered to.
The court held that Parliament had not directed that kaitiaki
are to be recognized to the exclusion of other members of
the community. The condition imposed provide for a
community liaison group in which any member of the
community, kaitiaki or not, Maori or not, would be able to
take part. In addition they also provide for the possibility
of a kaitiaki structure. The condition did not demean the
kaitiaki by providing only for them to participate along
with other members of the community. They allowed for
them to take part in that way. They also gave them special
status if they wanted it as kaitiaki as well, by providing in
addition for a kaitiaki structure.
Mr. Parata is of Te Waiariki descent, associated with the

Ngatikorora and Ngatitaka hapu of Ngatowai iwi. He is
also the vice chairman of Ngatiwai Trust Board.
Ngatikorora have traditionally lived on the northern shores
of the Whangarei Harbour. Mr Parata lodged the appeal in
his own name but stated that he was also in court for his
brothers, sisters and grandchildren, but did not claim to
have brought the appeal on behalf of Ngatiwai iwi, or on
behalf of the Ngatikoroa of Ngatitiaka hapu.
(xv) Yanner v Eaton [1999] HCA 53 (7 October

1999), (Australia)
This is an Australian case dealing with the applicability of
environmental managment regulations to Aboriginal
peoples. In this instance the person concerned argued that
the environmental legislation in question did not apply to
the traditional activities carried out by him.
The court found that the applicant identified and consulted

fully with the all tangata whenua of the locality, including
the hapu and iwi with whom Mr Parata is associated.
The appellant was a member of the Gunnamulla clan of

the Gangalidda tribe of Aboriginal Australians. Between
31st October and 1st December 1994 he used a traditional
form of harpoon to catch two juvenile estuarine crocodiles
in Cliffdale Creek in the Gulf of Carpentaria area of
Queensland. He and other members of his tribe ate some
of the crocodile meat; he froze the rest of the meat and the
skins of the crocodiles and kept them at his home.
Another ground for appeal was that the decision to grant

consent did not recognize and provide for the relationship
of Maori and their culture and traditions with Whangarei
Harbour. Mr Parata expressed concern that places of
traditional occupation might be destroyed by construction
of the port, and by increased shipping and traffic flow to
and from the port but this would be taken care of through
the environmental impact study
In 1994 the Fauna Conservation Act 1974 provided that

a person shall not take, keep or attempt to take or keep
fauna of any kind unless he is the holder of a licence,
permit, certificate or other authority granted and issued
under this Act. [ s. 54(1)(a)]
The next ground of appeal was that the consents would

impact on the ability of that tanagata whenua to fulfil their
role as kaitiaki. The consent provided for the establishment
of a community liaison group and allow for a kaitiaki
group. It was contended that as the conditions required
the former but not the latter the decision failed to recognize
and provide for the kaitiakitanga, and took into account
irrelevant considerations in particular the role of the
persons and groups other than tanagata whenua in setting
up the community liaison group.
The appellant was not the holder of any licence permit,

certificate or other authority granted and issued under the
Fauna Act. He was charged in the Magistrates Court of
Queensland with one count of taking fauna contrary to the
Fauna Act. The appellant contended and the Magistrate
accepted that s. 211 of the Native Title Act 1993 applied.
20
This states as follows: (1) Subsection (2) applies if: (a)

the exercise or enjoyment of native title rights and interests
in relation to land or waters consists of or includes carrying
on a particular class of activity (defined in subs (3)); and
(b) a law of the Commonwealth, a State or a Territory
prohibits or restricts persons from carrying on the class of
activity other than in accordance with the licence, permit
or other instrument granted or issued to them under the
law; and (c) the law is not one that confers rights or interests
only on, or for the benefit of, Aboriginal peoples or Torres
Strait Islanders.
(2)
from gaining access to the land or waters for

the purpose of satisfying their personal,
domestic or non-commercial communal needs
and in exercise or enjoyment of their native title
rights and interests.
On appeal, the court set aside the order of the Magistrates
Court. By special leave the appellant appealed to the High
Court. He contended that the Magistrate was right in
dismissing the charge because in taking the crocodiles the
appellant was exercising or enjoying his native title rights
and interests; these rights and interests were preserved by
the Native Title Act. It followed that the Fauna Act, to the
extent to which it prohibited or restricted the taking of
crocodiles in the exercise of those rights and interests for
the purpose of satisfying personal, domestic or noncommercial communal needs was invalidated by s. 109 of
the Constitution.
If this subsection applies, the law does not prohibit

or restrict the native title holders from carrying on
the class of activity, or from gaining access to the
land or waters for the purpose of carrying on the
class of activity, where they do so:
(a) for the purpose of satisfying their personal,
domestic or non-commercial communal needs;
(b) in exercise or enjoyment of their native title
rights and interest.
(3)
The respondent contended that any native title, right or

interest to hunt crocodiles in Queensland which the
appellant may have enjoyed had been extinguished, prior
to the commencement of the Native Title Act by the
enactment of s. 7(1) of the Fauna Act which provided that
all fauna, save fauna taken of kept otherwise than in
contravention of this Act during an open season with
respect to that fauna is the property, is the property of the
Crown and under the control of the fauna authority. It
followed, so that respondent submitted, that the Native Title
Act provisions preserving native title rights and interests
to hunt and fish had no relevant operation in this case,
because the native title rights and interests upon which the
appellant relied had been extinguished before the Native
Title Act had been enacted.
Each of the following is a separate class of activity

(a) hunting (b) fishing (c) gathering (d) a cultural or
spiritual activity (e) any other kind of activity
prescribed for the purpose of this paragraph.
The Magistrate found that the appellants clan have

connection with the area of land from which the crocodiles
were taken and that this connection had existed before
the common law came into being in the colony of
Queensland in 1823 and ... thereafter continued. He further
found that it was a traditional custom of the clan to hunt
juvenile crocodile for food and that the evidence suggested
that the taking of juvenile rather than adult crocodiles had
tribal totemic significance and was based on spiritual
belief. The Magistrate found the appellant not guilty and
dismissed the charge.
Earlier forms of Queensland fauna legislation had provided

expressly that those Acts did not apply to any aboriginal
killing any native animal for his own food. Unlike these
earlier Acts however the Fauna Act did not deal expressly
with Aboriginals taking native animals or birds for food.
That being so, much of the argument concerned what effect
the Fauna Acts vesting of property in some fauna in the
Crown had on the native title rights and interests asserted
by the appellant.
In effect then the Magistrate found that:

(a) the exercise of enjoyment of native title rights
and interests in relation to the land or waters
where the crocodiles were taken included
hunting or fishing;
(b) the law of the State (the Fauna Act) prohibited
or restricted persons from carrying on those
classes of activity other than in accordance with
a licence, permit or other instrument granted or
issued to them under the Fauna Act 1986.
(3)
The court then considered the provisions of the Fauna Act.

Section 7(1) did not make all fauna the property of the
Crown and under the control of the Fauna Authority.
Fauna taken or kept otherwise than in contravention of
this Act during An open season with respect to that fauna
was excepted. Estuarine crocodiles were declared by
Order in Council made on 29th August 1974 to be fauna
for the purposes of the Act. Did section 7(1) give rights to
the Crown in respect of fauna that were inconsistent with
the rights and interests upon which the appellant relied?
What interest was vested in the Crown when the Fauna
Act provided that some fauna was the property of the
Crown and under the control of the fauna authority. The
respondents submission was that s. 7(1) gave full
the Fauna Act was not one that conferred the rights
or interests only on, or for the benefit of, Aboriginal
peoples or Torres Strait Islanders; and accordingly
(d) the Fauna Act did not prohibit or restrict the
native title holders from carrying on those
classes of activity of hunting and fishing) or
21
beneficial, or absolute, ownership of the fauna to the

Crown. The respondent sought to equate the Crowns
property in fauna with an individuals ownership of a
domestic animal.
right and interest in hunting and fishing) that made up the

native title. That inconsistency was said to lie in the creation
of property rights in the Crown that were inconsistent with
the continued existence of native rights and interests.
The property which the Fauna Act vested in the Crown

was no more than the aggregate of the various rights of
control by the Executive that the legislation created. These
were rights to limit what fauna might be taken and how it
might be taken, rights to possession of fauna that had been
reduced to possession, and rights to receive royalty in
respect of fauna that was taken (all coupled with or
supported by a prohibition against taking or keeping fauna
except in accordance with the Act). Those rights are less
that the rights of full beneficial or absolute ownership.
Taken as a whole the effect of the Fauna Act was to
establish a regime forbidding the taking or keeping of fauna
except pursuant to a licence granted by or under the Act.
This would not be enough to extinguish the rights and
interests relied on by the appellant.
The Court held that regulating the way in which rights and
interests may be exercised was not inconsistent with their
continued existence. Indeed, it presupposed that the right
exists. Regulating particular aspects of the usufructuary
relation with traditional land does not sever the connection
of the Aboriginal peoples concerned with the land. Saying
to a group of Aboriginal peoples You may not hunt or
fish without a permit does not sever their connection with
the land concerned and does not deny the continued
exercise of the rights and interests that the Aboriginal law
and custom recognizes them as possession.
Section 211 of the Native Title Act provides that a law
which prohibits or restricts persons from hunting or
fishing other than in accordance with a licence, permit or
other instrument granted or issued to them under the law
did not prohibit or restrict the pursuit of that activity in
certain circumstances where native title existed. The Fauna
Act did not extinguish the rights and interests upon which
the appellant relied. Accordingly, it did not prohibit the
appellant, as native title holder from hunting or fishing for
the crocodiles he took for the purpose of satisfying
personal, domestic or non-commercial communal needs.
The appeal was therefore allowed.
Turning to the issue of native title rights and interests, the

court stated that section 223 of the Native Title Act provides
that The expression native title or native title rights and
interests means the communal, group or individual rights
and interests of Aboriginal peoples or Torres Strait
Islanders in relation to land or waters where:
(i)
(ii)
(iii)
the rights and interests are possessed under the

traditional laws acknowledged and the traditional
customs observed by the Aboriginal peoples or
Torres Strait Islanders;
the Aboriginal peoples or Torres Strait Islanders, by
those laws and customs, have a connection with the
land or waters; and
the rights and interests are recognized by the
common law of Australia.
(xvi) Attorney General v Lahoy Akonaay, (Tanzania)

This Tanzanian case raised also the issue of customary land
rights in the face of legislative changes.
The respondents, father and son, had acquired land rights
under customary law recognized as deemed rights of
occupancy under section 2 of the Land Ordinance over 20
acres in Mbulu District, Arusha Region, which they had
cleared in 1943. They occupied and used the land until
they were dispossessed during Operation Vijiji under
the Villages and Ujama Villages Act, 1975. They
successfully sued for the recovery of that land and regained
possession of it in 1990. An appeal against that judgement
was still pending when the Regulation of Land Tenure
(Established Villages) Act 1992 was passed. The effect of
this Act was to extinguish customary rights in land acquired
before Operation Vijiji in an established village, to
prohibit the right to compensation for such extinction, to
oust the jurisdiction of the courts, terminate relevant court
proceedings and prohibit enforcement of any relevant court
decision. Proceedings under the 1992 Act were to be
instituted only in local land tribunals. The respondents then
petitioned the High Court alleging breaches of their
fundamental rights and obtained a declaration that the 1992
Act was invalid for inconsistency with the Constitution in
that its provisions violated, inter alia, the petitioners rights
of freedom from deprivation of property without fair
compensation. The Court ordered the Act to be struck out
Rights and interests includes hunting, gathering, or fishing

The hunting and fishing rights and interests upon which
the appellant relied were rights and interests possessed
under the traditional laws acknowledged, and the traditional
customs observed by the clan or tribe of which the
appellant was a member. The magistrate found that by those
laws and customs the appellants clan and tribe had a
connection with the land and waters where the crocodiles
were taken. At least until the passing of the Fauna Act
those rights and interests were recognized by the common
law of Australia.
The respondents contention was that the Fauna Act
extinguished these rights and interests. Native title was
extinguished by the creation of rights that are inconsistent
with the native title holders continuing to hold their rights
and interests. The respondent contended that the Fauna Act
created a legal regime that was inconsistent with native title
holders continuing to hold one of the rights and interests (the
22
of the statute book. The Attorney General appealed on the

grounds, inter alia that customary rights were not forms
of property protected by the Constitution.
is prohibited by the Constitution. Further that sections 3

and 4 of the 1992 Act which provided for extinction of
customary rights in land but prohibit payment of
compensation are violate of the Constitution and are null
and void. However the court held that the provisions of
the 1992 Act relating to extinction of customary rights were
not applicable to the respondents because their customary
rights had been extinguished before the 1992 Act and
before the basic human rights became enforceable in 1988.
The Court of Appeal held that customary or deemed rights

in land, though by their nature are nothing but rights to
occupy and use the land, are nevertheless real property
protected by the provisions of the Constitution and
deprivation of a customary right without fair compensation
23
24
B. TEXTS
25
26
1
Planning Control
27
DECISION A132/98
IN THE MATTER
of an application for enforcement order under section 316 of

the Resource Management Act 1991
BETWEEN
ALAN WILLIAM SUMMERS

(Application ENF 99/96)
Applicant
AND
THE FAR NORTH DISTRICT COUNCIL
First Respondent
AND
RAY SEYMOUR, MILAN YERKOVICH, TREVOR

BLUCHER and NORM BRYAN
Second Respondents
BEFORE THE ENVIRONMENT COURT

Environment Judge DFG Sheppard (presiding)
Environment Commissioner P A Catchpole
Environment Commissioner F Easdale
HEARING at KAITAIA on 3, 4, 5, 6, and 7 November 1997, and 2, 3, 4 and 5 June 1998.
COUNSEL
R M Bell for the Applicant
M A Ray for the First Respondent
C A Patterson for the Second Respondents
28
then in 15 paddocks with 13 water troughs, fences of two

or four wires and poor boundary fences, a four double-up
walk-through milking shed, and with a central race and a
wooden bridge over the Aspin Drain. Mr Summers
described the present state of his farm of 161 hectares as
being almost fully developed with 68 paddocks, fences of
two-wire electric and some fairly new eight-wire and batten
electric fences. There are six miles of fenced races and a
crossing under the main road, and a 20-a-side herringbone
milking shed. Water supply is from a well, stored in two
5000-gallon tanks on the highest part of the farm, providing
a gravity feed by way of 40-millimetre high-density piping
to 30 water troughs located mostly on fence lines to serve
two paddocks each. The remaining paddocks are watered
from permanent drains.
DECISION
INTRODUCTION
1.
This case concerns flooding and drainage of farms
in the Motutangi district near Houhora, some 35 kilometres
north of Kaitaia. An owner of one of the farms, Mr A W
Summers, claims that as a result of overdrainage and
inadequate clearing of public drains, the condition of his
farm has deteriorated considerably. By this application for
enforcement orders he seeks that the overdrainage cease,
and also seeks restoration of the condition of his farm.
The proceedings are not for damages, but for restraining
and mandatory orders in terms of section 314 of the
Resource Management Act 1991 1 .
7.
Mr Summers explained that an earlier regular
programme of lime and fertiliser application had been
curtailed in 1982, when he came to realise that application
to areas subject to flooding was wasted expenditure. He
gave an example of a flood which began in September
1991 and which left the farm still under water in April
1992. In his fourth affidavit Mr Summers explained how
pasture is lost to farming from overdraining and lowered
groundwater, while flooding (which can affect 28.3
hectares in a small flood and up to 81 hectares in a large
event) causes rotting of the grass cover.
2.
The First Respondent is the territorial authority for
the district, the Far North District Council. The Second
Respondents are other farmers at Motutangi who are
members of the Motutangi Drainage Committee. That
committee has no formal status, but exists to give the
District Council advice in respect of the Motutangi
Drainage District. The Motutangi Drainage District was
established as long ago as 1928, but there has not at any
time been a written specification of the extent of drainage
works to be done in the district.
3.
The First and Second Respondents denied
responsibility for the condition of the Summers farm, and
opposed the making of any enforcement orders. The
application was fully contested, and the hearing occupied
nine hearing days, including an extensive site visit.
Evidence was given by 15 witnesses, most of whom were
cross-examined fully.
8.
In his third affidavit Mr Summers produced
photographs taken in August and September 1996 of
pasture consisting of clover, rye and kikuyu near the road
and towards the Turner property, pasture which he
considered as good as any in the district. He agreed that
his farm is deficient in the trace elements of selenium,
copper and cobalt. He deposed that this is typical of the
Aupouri Peninsula, and he asserted that he counters those
deficiencies by treating his stock with appropriate
remedies.
The Summers farm

4.
Mr Summers moved to the Motutangi area in 1972
and he has farmed there ever since. The farm is in several
blocks which were acquired between 1973 and 1984
namely: Certificates of Title 1175/93 containing 66.0497
hectares; 52B/1082, 50.9626 hectares; 33A/395, 9.7124
hectares and 55A/1347, 34.9428 hectares, the latter being
an interest under a deferred payment licence. Of the total
area of 161.6675 hectares some 25.37 hectares lies to the
west of Main North Road and the balance, some 136.3
hectares, to the east towards the coast.
9.
In his sixth affidavit Mr Summers deposed that from
1973 until 1985 he had made regular applications of both
fertiliser and lime as required, but there had been no
significant applications since. A letter from the Northland
Cooperative Dairy Company 2 set out Mr Summers
seasonal production figures for milkfat between 1981 and
1997. The total for the 1981/1982 season was 14,796
kilograms, 1987/1988 showed a high of 16,586 kilograms
and for 1996/1997 the figure was 6406 kilograms. Mr
Summers deposed that he also runs dry stock. He provided
a comparison with the production from the Turner property
immediately to the south 3 , which has an area of 80.3
hectares milking 110 cows and producing 27,000, 29,000
and 30,000 kilograms of milk solids for the seasons 1994/
95,1995/96 and 1996/97 as warranted by the owner. For
5.
Mr Summers described his land as being 85 to 90%
peat, as generally falling in level from west to east, and as
being the lowest lying land in the drainage district.
6.
Mr Summers first bought the 66-hectare block from
Mr M I Matich and, as described by Mr Summers, it was
1
2
3
The relief sought is set out in more detail in paragraphs 115 and 116 of this decision.
Produced as Exhibit M of the sixth affidavit of A W Summers, sworn on 29 October 1997.
Exhibit AJ in the seventh affidavit of A W Summers, sworn on 14 May 1998.
29
the same seasons Mr Summers production figures were

10,177, 9325 and 6406 kilograms respectively. Mr
Summers deposed 4 that some 15% of the Turner property
is subject to flooding in major events.
173, made up of 118 heifers which included bigger

yearlings and 16- to 18-month old animals not in calf, 11
held-over cows and 44 cows to calve. He deposed that
they had been under stress because of flooding earlier in
the year, and because of over-draining.
10. In his first affidavit Mr Summers gave an example

of the overdraining of peat affecting his pasture. He
deposed that in the past an area of 3.24 hectares not subject
to flooding would graze 200 cows for 24 hours, but since
drain deepening in 1993 the same herd requires 19.4
hectares for 12 hours grazing. This equates to a 90% loss
of grazing capacity. In the result Mr Summers maintained
that there has been an effective loss of 60.7 hectares of his
farm which is no longer good for grazing, resulting in the
dairy production being much lower than might otherwise
be expected.
14. During our visit to the property on 6 November 1997

we observed marked contrasts in the lower area of the
Summers farm between his land and the neighbouring
property immediately across the main outfall drain near to
Bryans Drain. The Summers land was at a markedly lower
level and the pasture was very closely grazed by
comparison. To the south and east, towards the scientific
reserve, pasture in low-lying areas was in poor condition
and generally far from plentiful.
15. In his affidavit Mr Matich stated that up to 1973 the
66-hectare property that he had sold in that year to Mr
Summers had consistently produced 13,600 kilograms of
butterfat from 100 cows, had carried all replacement stock,
made 2000 to 5000 bales of hay per year, and also could
provide some rental winter grazing to local farmers. He
stated that there had been flooding problems with the
bottom part of the farm two or three times a year, with
floods taking three or four days to recede. He gave the
opinion that the Summers property, farmed properly, was
as good a block of land as one would find anywhere in
Northland.
11. Mr G R Ussher, a Kaitaia agricultural consultant who

had been engaged on behalf of the District Council, had
made an inspection of the eastern portion of the Summers
property on 22 August 1996 and prepared a report. This
report focused on three areas representative of the middle
to bottom area of the farm and noted soil fertility
deficiencies which were related to restricted pasture
production throughout the areas sampled. Pasture species
varied from strong ryegrass, white clover and kikuyu
nearest the road, to a reasonable presence of these species
in the middle area, to very few plants in the bottom or
most eastern areas where carpet grass was dominant,
together with some Yorkshire fog and the legume lotus.
Mr Ussher had estimated the quantity of pasture as 1200
to 1400 kilograms of dry matter per hectare, which he
compared with 1800 to 2000 kilograms for a moderate to
highly stocked dairy farm in this area. The witness judged
the available pasture on the Summers farm to be extremely
low, and reported that the farm was extremely short of
feed for that time of year. Because of the low soil fertility
he considered that the feed supply would remain low
through the next two months especially, but also through
most of the year, meaning low milk production.
16. Mr Summers produced5 an aerial photograph of the

general district with landform information overlaid. We
were told that the photograph was a copy from an as-yet
unpublished report by Ecological Research Associates of
NZ Inc. commissioned by the Northland Conservancy of
the Department of Conservation and titled Options for
Managing the Kaimaumau Wetlands. The landforms shown
are as interpreted by D Hicks from a 1996/1997
examination of soils and water levels and from his landform
map prepared in 1975. That part of the Summers farm
east of the main road is classified on the photograph
variously as: f2, inland foredunes dry sand ridges
alternating with wet peat hollows; s2, shallow sandy peat
swamps; s3, deep fibrous peat swamps; and the most
easterly strip p1, younger parabolic dunes dry sand ridges
alternating with moist sand flats or wet peat swamp.
12. Mr Ussher reported that he had walked through a

dry dairy-stock herd of 220 to 240 head, the body condition
of which he judged to be low to very low. This herd
appeared to be largely cows and rising 2-year-old heifers
calved or close to calving, and as such should have had a
body condition score of at least 5.0 to ensure good milk
production, minimal animal health problems and good
reproduction levels. He judged the animals to have a
condition score of 3.0 to 3.5 and as being thin to very thin.
The rising two-year-olds he judged were smaller in size as
a result of low feed intakes throughout their lives.
17. Mr K Thompson is a botanist specialising in peat

wetlands management. He described the hydrology and
historical development of the Motutangi swamp in which
the Summers farm is located. He deposed that the
catchment has a complex history involving several phases
of dune advance followed by consolidation, podsolisation
and peat disposition from vegetation ranging from scrub
and rain forest on ridges, to kauri forest, raupo swamp and
peat bog on the flats. He considered that the Motutangi/
13. Mr Summers responded to that report in his fourth

affidavit, claiming that the herd referred to had numbered
4
5
In Exhibit N of his sixth affidavit.

Exhibit AP to his sixth affidavit.
30
Kaimaumau system is unique in New Zealand for its

several different peat types, associated complex dune
systems, and discontinuous hard pans. As well, the
hydrology is very complex involving as it does rainwater
inputs, high evaporation rates, tidal effects, groundwater
flow in several distinct aquifers, and widely dispersed
springs.
the bottom of the Summers farm, to flow through to the

Motutangi Stream. That is known as the Cut.
25. Since establishment of the drainage district, other
drains have been made, most named after farmers whose
properties were served by them. There is a main drain (known
as the Main Outfall) through the lower part of the Summers
farm, leading to the Cut. Beazleys Drain and Bryans Drain,
which serve areas lying generally to the north of the Summers
farm, join the Main Outfall. The Aspin Drain joins it from
the south. Further south the Selwyn Outfall flows in a
generally north-easterly direction to a locality known as
Lands End, from where it turns to the north-north-west and
flows to the Motutangi Stream. The Seymour Drain and
Bacicas Drain are tributaries of the Selwyn Outfall.
18. Mr Thompson identified the Summers property as

having three types of peat with two acid varieties being
almost solely confined to his land. Each peat type has a
different water level and management requirement.
19. From this and other evidence we accept that the
nature of the ground in the Motutangi catchment is
complex, and that a high level of information and
understanding is necessary for its successful management.
Mr Thompson noted that there is no water budget for the
catchment which can relate regional rainfall and seasonal
variations to the requirements of the catchment and the
water levels necessary to maintain it in a sustainable
manner, nor were the figures available to prepare such a
budget, and as a result there had been much speculation.
He stated
26. It is relevant to one of the issues in this case that the

Aspin Drain starts at a position very close to the Selwyn
Outfall.
The main issues
27. There are three main issues: overdrainage,
inadequate drain cleaning, and separation of the Selwyn
Outfall from the Aspin Drain.
I can only say it seems unwise to use standard

drainage principles and methodologies on a
complex and grossly under-researched peatland
system...
28. It was Mr Summers case that once the Selwyn Outfall

had been extended to Lands End, in the late 1970s the drains
in the district were capable of providing effective drainage
for farms within the district so long as the drains were
properly maintained. However he contended that from the
mid 1980s, the drains were not properly maintained, in two
respects. The first respect was that when the Main Outfall
through his land, and the Motutangi Stream below the Cut,
were cleaned, more material was removed than is involved
in cleaning, so that they were overdeepened. The result was
a lowering of the water table, leading to drying of peat on
his land and slumping. The second respect was that the
drains, particularly the Motutangi Stream below the Cut,
were not cleared of weeds regularly and adequately. The
result was that in wet conditions, the drains did not function
adequately, leaving water lying on his land longer, damaging
the pasture, restricting his ability to provide feed for his
livestock, and providing a longer-term disincentive to apply
fertiliser which might be wasted by further flooding.
20. In a letter to the Regional Council dated 29

December 1995 Mr Thompson had concluded
Drainage issues on Motutangi appear at best to
have been ad hoc. There is an urgent need to get
management onto a firm scientific footing, to the
benefit of all land owners (including the
Department of Conservation).
21. We agree with that, although we do not know

whether the return to be expected would warrant the cost
of the research.
The Motutangi drainage system
22. The natural drainage of the Motutangi district is the
Motutangi Stream, which flows in a generally north-northwesterly direction to the Rangaunu Harbour at Houhora.
The land in the drainage district lies generally to the southwest of the Motutangi Stream.
29. The third main issue related to the separation

between the Selwyn Outfall and the Aspin Drain. Some
farmers in the district considered that the system would
function better if there was a connection between the two,
so that in times of flood some of the water flowing in the
Selwyn Outfall might be diverted into the Aspin Drain.
There had been at least one unauthorised experiment by
installation of a pipe between the two. Mr Summers
contended that this had exacerbated flooding on his farm.
23. The course of the stream has been altered upstream

of the Summers farm. Its former course lay further to the
west, through an area which is now a scientific reserve.
24. The first significant alteration to the natural drainage
of the area was in the late 19 th century when part of the
area was occupied by gumdiggers. At about that period, a
drain or canal was cut through sand dunes at what is now
30. We address the evidence on those three main issues

in that order.
31
It is generally understood by all working in the

drainage field, that excessive drainage of peat can
result in drying and shrinkage of the peat with
consequent settling of the land surface.
Over-deepening and levels of drains

31. It was Mr Summers case that the drains have been
deepened, which has led to a depletion of the groundwater,
and overdrainage of the peat, with resulting loss of peat
structure and fertility. The loss of groundwater has been
such that the land has subsided with slumping. In turn these
have adversely affected the quality of the pasture on his
farm and therefore his production. He alleged that the
deepening has been as a result of improper cleaning.
37. The consensus seems to be that a peat farmer should

aim to keep the water table within 45 centimetres of the
surface.
38. It was Mr Englands evidence that, apart from
particular identified capital works, the only work
undertaken by the District Council had been maintenance
of the system to the existing profile. This work involves
clearing silt and weeds from the drainage channels. The
work is performed under an annual contract. The standard
specification for the contract details the extent of the works
to be undertaken. The specification includes the words
32. At paragraph 29 of his first affidavit Mr Summers

deposed
The effect of the deepening work, both in the
Motutangi stream and in the Aspin drain, was to
remove ground water from a large area of my farm
and neighbouring properties.
33.
All weeds and silt shall be removed to 500 mm

above low water level to restore the channel to
its original shape. All excavated material shall be
deposited so as to leave a clear berm wide enough
for future machine clearing.
And at paragraph 51 he deposed

It is my case that the work of the District Council
as carried out through its contractors has had
significant permanent effects on the environment
at Motutangi. The loss of ground water from the
peat has reduced the quality and fertility of the
peat. The way the work is carried out has been
contrary to normal drainage practices in peat areas.
The effect has been quite catastrophic for me.
39. Supervision of the contract had been undertaken by

Mr England himself, typically by two or three visits over
the course of each years contract. He deposed that since
1982, when he had started supervising contracts in the
drainage district, he had never seen any deepening of the
drains. He acknowledged that the work involved the
removal of silt and sand deposited in the drains, and stated
that removal of accumulated sediment does not constitute
deepening the drain.
34. Mr Summers claimed that fixing this up would be

difficult. That is because the loss of fertility in dried peat
is considered irreversible. He considered that the solution
lies in chisel ploughing. This is a form of ploughing by
which peat lying well below the surface, which is still wet,
is brought to the surface, and other dry peat, lying at the
surface, is buried. There would be associated grass sowing,
application of fertiliser, lime, etc. However for this to work,
it would also be necessary to raise groundwater levels to
ensure that the peat remains moist. That would require
engineering works within the district drains and streams.
40. Mr England denied that there had been attempts to

disguise the fact that peat had been removed from the
drains. He affirmed that all that had been removed was
swamp material naturally moving into the drains by the
build-up of hydrostatic water pressure on the banks.
41. There was no evidence of the District Council having
contracted for, or having paid for, drain deepening. Mr M
J Reed was the drainage contractor who was the most recent
to undertake work in the area. It was his evidence that he
had no instructions to do other than clear drains, and that
he had not undertaken any deepening works. In answer to
questions put to him in cross-examination, Mr Reed made
it clear that he had never received any instructions to
deepen the drains, only to clean them. He stated that his
equipment was not capable of carrying out deepening, as
it consisted of a weed-bucket with some extra bars, and
that he would not have been paid for any deepening work.
He also gave the opinion, based on his observations of the
deposits along the banks, that previous contractors had not
taken out much apart from the weed.
35. Mr Summers produced a substantial number of

photographs of drainage works taken over many years to
support his allegations of deepening work and of
overdeepening of drains. However we are not able to tell
from that evidence the extent to which material removed
from a drain has come from the invert of a drain, from the
side of a drain, or is loose material which has fallen into
the drain, or has been deposited there since the last cleaning
and would be removed by the next cleaning.
36. The District Council official who until late 1995 had
been responsible for the maintenance of public drains in
the district, Mr G K England, produced 6 a letter dated 8
September 1993 from Mr HR Green, Works Manager for
the Far North District Council, where Mr Green stated
As Exhibit L of his first affidavit, sworn on 21 October 1996.
32
42. Various witnesses were called to provide evidence

of the levels and cross-sections of the various drains.
at the same scale as plans produced in 1961 by the then

Mangonui County Council for the realignment of the
Motutangi Stream and construction of the original drainage
system. Production of the plans at the same scale had
enabled the plans to be overlaid both for horizontal position
and, by a comparison of common points, for vertical
correlation. While not being an absolute comparison,
because the original design had not been related to
established survey monuments, Mr Webster concluded in
his evidence
43. Mr P J Cook is a qualified engineer and also has a

diploma in agriculture. In April 1997 he had carried out
survey work to try and identify if any deepening work had
been carried out on the drains which relate to the Summers
land.
44. A survey was undertaken by a registered surveyor,
Mr G R Webster, using a global positioning system total
station, which commenced at Houhora Heads at a recorded
level bench mark, and proceeded up the estuary of the
Motutangi Stream and along its length to the intersection
with the main outfall drain at the Cut, to Lands End, along
the Selwyn outfall, the Aspin drain and the main outfall
drain back to the Cut, with bank and invert levels being
recorded at approximately 400-metre intervals. This
information was overlaid by computer plotting on the
District Council record map7. An overall plot of this work,
together with long sections of the various drains, was
produced in evidence by Mr Cook8.
The long sections showing drain invert levels

indicate that there has been no significant change
from the design position shown on the 1961 survey
other than that which may occur from normal
maintenance over a period of 36 years.
48. The 1997 survey showed that the invert closely

followed the design grade for the first 1400 metres back
from the Cut and then gradually dropped to between 0.5
and 1.0 metres below the design grade. That suggests that
infilling has indeed occurred. Although both Messrs Cook
and Webster considered some minor over-deepening has
occurred, the levels may also indicate that the infilling
process is still taking place. Mr Cook gave the opinion
that because the outlet is subject to natural tidal control, if
some over-excavation had occurred it would not have had
an adverse effect on flooding
45. In 1961 the former Mangonui County Council had

made a survey of some 4800 metres of the Motutangi
Stream between the mouth of the estuary and the Cut. The
plans describing the result of that earlier survey were
produced, but the field notes were no longer available.
Those plans indicate a profile of the existing bottom or
invert of the stream and a proposed bottom level or design
grade which is based on an even grade line between the
existing inverts at the Cut and the estuary. We note that
this design grade follows generally the existing bottom
for the first 800 metres from the Cut, but the existing
bottom then drops abruptly to lie 1.0 to 2.0 metres below
the design grade. We infer that the intention in 1961 was
that the stream would gradually infill by deposition of sand
and silt to achieve the design grade. That proposition was
confirmed by Mr G K Cobb, the District Councils roading
and drainage engineer, in response to a question from the
Court.
49. Evidence was also given by another registered

surveyor, Mr R D Williams, of a survey which he had
undertaken for Mr Summers in November 1997 which had
resulted in four cross-sections of the Motutangi Stream,
the first at Bryans Bridge, and the other three 400 to 500
metres upstream from the bridge. Those cross-sections
indicate a shelf in the western side of the bed of the stream,
some 2 to 3.5 metres wide and 1 to 1.75 metres high, where
the strongly growing water weeds would be beyond the
reach of a clearing machine working on the east bank.
50. Mr Summers claimed that Mr Williamss survey was
evidence of deepening work on the stream bed. Mr
Williamss survey work was not related to that produced
by Mr Cook, and comparison of the two was not possible
because there are no other surveys or drainage design levels
to which that survey can be related.
46. Mr Cook gave evidence that relative to this section

of the Motutangi Stream a comparison, as best as it can be
achieved, between the current survey work and that of 1961
showed that the grade today is the same as the earlier design
grade, and that no intentional deepening had been carried
out. Mr Webster deposed that he had compared the two
surveys and, although he had used a method different to
that used by Mr Cook, he had arrived at a very similar result.
51. Mr Webster stated that he had not been able to draw

any conclusions from the cross-sections provided by Mr
Williams without further explanation as to how they relate
to any other surveys. Mr Williams had made the same claim
about survey work produced by Mr Cook. However Mr
Webster had been able to make a limited comparison of
his own survey with the plans of the 1961 survey because
the common scale had enabled some correlation.
47. Mr Webster had been able to make a correlation

between old and new survey work. From work done under
his supervision a plan and long-section had been prepared
7
8
A minor positional discrepancy became evident, but it is of no consequence to this case.

Exhibits E to I of the third affidavit of P J Cook, sworn on 9 September 1997.
33
52. Mr Cook had also considered the long-sections

developed from the 1997 survey for the other drains in the
system, and indicated high spots on the Aspin Drain and a
sandstone ridge in the Selwyn Outfall which protrude
above the overall grade lines. He gave the opinion that
those features would increase flooding upstream.
has accumulated in a drain or stream is within the proper

scope of cleaning, and does not amount to deepening. The
evidence of the presence of unoxidised peat and of shell
in drain cleanings from the Main Outfall does not persuade
us that deepening was carried out.
57. The cross-sections from Mr Williamss survey are
not in themselves evidence of deepening. They show the
existence at that time of a shelf at the side of the stream
which was later partly removed. The cross-sections are
not related to the 1961 survey or other evidence of the
previous levels of the invert of the stream. The evidence
of Mr England and Mr Reed did not support the allegations,
and the evidence of Mr Cook and Mr Webster was not
consistent with them. Counsel for Mr Summers reminded
us that the surveyor who had carried out the survey under
Mr Websters supervision had not been called to give
evidence, and submitted that Mr Webster could not vouch
for the accuracy of the surveyors work. However as a
senior professional surveyor in public practice, Mr Webster
was taking responsibility for work done by an employee
in the course of that practice and carried out under his
supervision. Unlike that of Mr Williams, Mr Websters
survey proved capable of correlation with the historic
survey made in 1961. In our judgment that survey is worthy
of consideration for the purpose of providing support for
the respondents cases.
53. In his reply, counsel for Mr Summers submitted that

the applicant had proved deepening within the means at
his disposal; and referred us to a dictum of Lord Mansfield
in Blatch v Archer9
It is certainly a maxim that all evidence is to be
weighed according to the proof which it was in
the power of one side to produce, and in the power
of the other to have contradicted.
54.
Counsel submitted
... there are very real constraints on the evidence
that the applicant can adduce. As a farmer within
the Drainage District, (but not himself a member
of the local drainage committee), he does not
survey the drains and waterways within the
Drainage District, and cannot be expected to carry
out such surveys, or to keep running records of
the length, breadth, and depths of drains and
watercourses in the district and of groundwater
levels within the Drainage District. Nor is he
expected to supervise the work of contractors,
carry out surveys of drains and watercourses before
and after contractors have done their work. The
amassing of such data is not reasonably expected
of an individual farmer within a drainage district.
If anyone is to be expected to compile and retain
such information, it is the District Council.
58. Counsel for Mr Summers also submitted that the

latters plans show an averaging out without regard to
particular rises and falls in the depth of the stream along
its length, and do not show that at particular points the
stream has not been deepened: that they are not evidence
negativing deepening. That may be, but they certainly do
not support the claim of deepening; and they are consistent
with the respondents denial of deepening.
So what the applicant has done is make

observations of what has happened and kept a
record of his observations by taking photographs.
And these do show deepening.
59. In short, although superficial deepening may have

inadvertently resulted in local areas from drain cleaning,
it was not systematic or significant; and we do not consider
that the allegations of overdrainage and overdeepening
have been established, and we do not accept them.
55. Be that as it may, the function of the Court is to

make findings on the evidence that is before the Court.
We gave Mr Summers full opportunity to call evidence
and to contradict evidence given by the respondents. His
counsel ably crossexamined witnesses called on behalf of
them. We take all that evidence into account. However it
is our understanding that the Court is not to make findings
that are not warranted by the evidence.
Drain cleaning
60. It was Mr Summers case that since the 1980s, drains
in the district had not been cleaned and cleared adequately,
and that as a result his farm had suffered very serious
flooding problems during the 1980s and 1990s. He referred
in particular to the Selwyn Outfall, which can divert water
away from passing through his property by way of the
Aspin Drain and the Main Outfall. He alleged in particular
that the Selwyn Outfall from Bacicas Drain down to Lands
End, and the Motutangi Stream from Lands End to the
Cut, had not been cleaned regularly and effectively.
56. Having reviewed the totality of the evidence, we

have not been persuaded that the Main Outfall, the Cut, or
the Motutangi Stream have been overdeepened as alleged
by Mr Summers. The scenes portrayed in the photographs
produced by him do not point unequivocally to deepening,
but are capable of other explanations, including widening.
In particular, we accept that removal of silt and sand which
(1774) 1 Cowp 53, 65, quoted in Cross on Evidence (4th NZ edition, 1989) paragraph 4.19.
34
The Main Drain
61. We refer to the evidence in support of those

allegations.
62.
28 In 1985 the Main Drain was sprayed but that

was ineffective. For the last 22 chain, the drain
was not sprayed. For the rest of the period
1981 to 1988 there was ad hoc clearing of
the drain. Photograph D shows the uneven
results of an attempt at spraying the drain from
a helicopter. Paragraph [sic] E shows weed
blocking the drain in 1989.
10
In his third affidavit , Mr Summers deposed

14. A matter that needs attention by the
respondents is the cleaning of the Selwyn
Drain downstream for approximately 1,200
metres from the place of the pipe.
15. Attached hereto and marked with the letter
I are photographs showing light bull rush
growing in the Selwyn Drain. There is
approximately 2 feet of the weed growth. If
the weed growth were removed, that would
improve the capacity of the drain to take peak
flows in the area downstream of the pipe.
Aspin Drain
29. The Aspin Drain was cleared from 1982 to
1985 in an ad hoc way. In 1985 there was an
attempt to spray the drain but the spraying
was ineffective.
Beazley Drain
16. The Selwyn Drain does not need deepening,

but simple cleaning, as by a digger with a
weed bucket.
30. In 1986 the drain was sprayed but that was

ineffective to clear the drain of vegetation.
There were further attempts in 1987 and 1988,
equally to no purpose.
17. There have been attempts to deal with weeds

in this section by way of spraying, but
spraying has been ineffective to deal with
weed underwater.
31. In those days only weak sprays were used.

Sprays generally attack only those parts of
weeds exposed to the air and were ineffective
on under-water parts of weeds. The committee
recorded as much in its minutes of 19 January
1987: Spraying of drains, killing weeds on
surface, weed in bottom of drain still
growing(exhibit F)
63. The photographs exhibited to that affidavit marked

I show weed growing in a waterway.
64. In his fourth affidavit11 , Mr Summers gave examples
of what he claimed was lack of proper clearing of drains
for some of the years in the 1980s
32. The problem in the past was not insufficient

internal drains on my farm, but the fact that
with poor maintenance of the Motutangi and
the Cut to Lands End, the canal and stream
became clogged with weed. The canal then
overflowed into my pasture.
Selwyn Drain
25. The area concerned is downstream from a
point 300 metres below where the Bacica
Drain joins the Selwyn Drain. In 1985 that
stream was sprayed, but that was not effective
to clear weeds. Otherwise from 1984 to 1988,
there was no clearing work on that stretch of
the drain.
33. The Cut to Lands End was also blocked, and

that resulted in water flowing down the old
Motutangi to my property...
H are photographs of the Motutangi Stream
taken in the years (mostly 1980s) before the
Council began its overdraining work. These
photographs were taken to show the problems
with the drain when there had not been
adequate clearing of weeds. Photographs
H1 and H2 were taken at points where
the County had cleaned for limited distance
(1000 metres) showed the contrast between
clearing operations and the rest of the stream,
still choked with weeds. This was contract
11/89 (photographs taken in 1989).
Photographs H3 shows the stream, with
weeds in it during the 1980s. H4 looks
south, with the west bank on the right side
Motutangi Stream
26. For the years 1986, 1988 and 1989 it was
only partially cleared. In 1988-1989 only 1000
metres was cleared.
The Cut to Lands End
27. In 1985 there was an ineffective attempt to
spray vegetation from a helicopter using a
monsoon bucket. That aside, the stream was
not cleared properly most years. Exhibit C
is photographs of wattle trees growing on the
west bank evidence of lack of clearing for
4 years.
10 Sworn on 8 October 1996.

11 Sworn on 30 January 1997.
35
and the east bank on the left side. This

photograph shows the east bank lower than
the west bank, with no signs of sand entering
the stream.
be the Selwyn Drain between the Bacica Drain and Lands

End. The photographs marked ZZ show weeds. The dates
on which those photographs were taken, and positions from
which they were taken, are not given.
...
EE is a copy of contract number 11/89 with
machine clearing, showing that only 1,000
metres of the Motutangi Stream was to be
cleaned out of a total distance of 4,225 metres.
In 1988 only 197 yards had been cleaned
downstream from The Cut of the Motutangi.
Contract number 5/91/14, exhibit D of Mr
Englands affidavit, shows that the contractor
was not required to clean the Motutangi
Stream. However some clearing work was
done in the Motutangi in 1991 but it was not
more than 400 metres. (See exhibit FF
variation Order No 1)
...
102.Attached hereto and marked YY is a
photograph of bullrush growing on the
Selwyn Drain between the Bacica and Lands
End. It shows more growth since the
photographs in exhibit I of my third
affidavit. At the highest point of the drain,
the depth of water is 500 millimetres.
66. In his sixth affidavit 12 Mr Summers produced13 a

copy of a contract for 1987 which provided for cleaning
of 500 metres of the Motutangi Stream. In that affidavit
the deponent stated
21. Photographs AG and AH are two photographs
taken in 1997 between The Cut and Lands
End. That stretch continues to remain choked
with weeds.
22. Weed continues to grow in the Selwyn Outfall
between the Bacica and Lands End. There
has been no machine cleaning done to clear
weed in this stretch, although weed has been
cleared from the Bacica back to the Aspin
and the Selwyn area. The effect of having
weed uncleared in the Selwyn is to raise the
level of water at the Selwyn-Aspin
connection, and give a misleading appearance
suggesting that those upstream on the
Selwyn need more drainage.
My vulnerability to flooding
67. The photographs AG and AH attached to that

affidavit show weeds over a drain. The dates on which
those photographs were taken, and positions from which
they were taken, are not given.
103.In the present state of affairs, The Cut to Lands

End has not been machine cleaned. It has been
subject to some spraying but that has been
ineffective and the drain remains largely
blocked and impeded the flow of water.
Photographs ZZ taken in 1996 show this.
So if water comes down the Selwyn to Lands
End, it will not go down to The Cut, or at
least its full flow will be impeded. Instead
some of the water will be diverted back along
the old Motutangi into my property.
68. Counsel for Mr Summers helpfully attached to his

submissions in reply a schedule summarising the length
of stretches of the various drains which, according to the
evidence, had been cleaned by machine over each of the
years from 1987 to 1996. In summary, the whole length of
the Motutangi Stream (ie downstream from the Cut) was
cleaned only in 1992 and 1993; and in 1987 to 1991 no
more than 1000 metres was cleaned in any year, and in
1990 no cleaning was done at all. The section from Lands
End to the Cut was only cleaned in full in 1989 and 1993;
and short sections in each of 1994, 1995 and 1996. The
Main Outfall was fully cleaned in every year.
65. The photographs exhibited to that affidavit marked

C show what appear to be wattle trees. The photograph
exhibited to that affidavit marked D shows a clear
waterway. The photograph marked E is said to show the
main drain not cleared and blocked by weed, and appears
to show vegetation. The photographs marked H1 to H6
show weeds in a stream (said to be the Motutangi Stream
in the 1980s). The dates on which the photographs were
taken, and positions from which they were taken, are not
given. Exhibit EE is a copy of a contract dated 12 April
1989 for machine cleaning in the Motutangi Drainage
District. It indicates that 1,000 metres of the Motutangi
Stream were to be cleaned. Exhibit FF is a copy of a
contract variation order dated 30 April 1991, providing
for the Motutangi Stream to be cleared for 400 metres from
the main outfall to the bridge crossing. The photograph
marked YY shows growth of rushes in what is said to
69. Mr Summers also relied on a letter dated 23

December 1992 from the District Councils Development
Engineer, Mr W Haigh, to the Ombudsman 14 stating that
Mr Summers complaints about inadequate maintenance
had usually been with some justification and that the
local drainage committee had sought to have a certain drain
critical to Mr Summers maintained less often in favour of
other drains.
70. Mr R W Cathcart, the Regional Councils Land
Operations Manager, deposed that he had visited the
12 Sworn on 29 October 1997.

13 Exhibit B of Mr Summers sixth affidavit.
14 Exhibit V of Mr Summers fourth affidavit, sworn on 30 January 1997.
36
Summers farm in April 1992 in company with Mr Haigh,

that there had been dry conditions over the summer, but
the Summers farm had been flooded, and he gave the
opinion that this had occurred because there had been lack
of maintenance work in the drains below his property: The
drains had not been cleared, thereby causing flooding of
his farm.
76. Mr England deposed that the primary drains are

maintained on a one- or two-yearly basis, and sections of
secondary drains are maintained on a cycle from two years
upwards, and may be sprayed in intervening years when
mechanical cleaning is not done. He also deposed that in
1982 when he had been given responsibility for
administration of the drainage districts, the Motutangi
drainage district had been in deficit and this had restricted
its ability to fund works.
71. Mr Cathcart reported that Mr Haigh had

acknowledged that work had not been done below the
Summers property. The witness agreed that on other visits,
drain maintenance had been done, and it was adequate.
77. The subsidy from the Northland Catchment

Commission was to cease in about 1987, and in 1986 he
(Mr England) had arranged for the Commissions engineer,
Mr P Palmer, to come to a site meeting to discuss proposed
works on Motutangi Stream. It was a full meeting of the
advisory committee, together with Mr Summers and Mr
Lynton (another farmer in the district). The meeting had
discussed proposals (including hydraulic digging) in detail
and at length.
72. It was the District Councils case that the evidence

does not establish that flooding of Mr Summers farm was
related to lack of drain maintenance; that all the major
flooding events that Mr Summers referred to had coincided
with major storm events; and that because of the location of
the Summers farm, flooding from time to time is inevitable.
73. Mr England gave evidence of the formation, in
December 1984, of the advisory committee for the
Motutangi Drainage District. His understanding of the
scheme and the way it was meant to be maintained and
operated is that the scheme, which he understood had been
formed under the Swamp Drainage Act 1915, was to
provide reasonable and adequate drainage to all
participating properties. This was to be done by the
Council, on behalf of the drainage district, carrying out
maintenance on particular identified drains. These were
the primary outfall drains: the Motutangi Stream, the
Selwyn Outfall, and the Main Outfall (the Canal), which
were to be kept clear and free-flowing. As well, secondary,
contributory drains were maintained in a serviceable
condition. These were the Aspin, Beazley, Bryan, Seymour,
and Bacica drains. All other drains or watercourses within
the drainage district were to be maintained as seen fit by
the individual farmer or ratepayer.
78. Prior to 1987, machinery to clear the Motutangi

Stream had operated from the west bank. Following the
meeting with Mr Palmer, funding was obtained from the
Northland Catchment Commission to make the stream
accessible by hydraulic excavator on the east side of the
stream. The work was done towards the end of 1987.
79. Mr England testified that from 1987 a consistent and
substantial programme of maintenance works was
undertaken, the scheme had become self-funding in about
1989, and by the time of Mr Summers complaint in 1992,
Mr England considered that work was being done to
maintain the drains in a satisfactory condition.
80. Mr England explained that machine cleaning of
drains was carried out in late summer and autumn, to give
the best drainage improvement for winter; and he gave the
opinion that earlier drain clearance would have been
inefficient as regrowth takes place rapidly in summer. The
witness stated that it was not possible to always have the
drains in optimum condition, but observed that if
significant rain fell in summer or autumn, then adequately
maintained internal drains should avoid significant
problems with ponding water, and that The scheme
cannot, and does not claim to, guarantee freedom from
surface ponding.
74. In addition to physical cleaning of identified drains

by machine, the District Council supplied weedspray to
individual farmers for the spraying of the secondary drains
which were part of the drainage system.
75. Mr England deposed that the Selwyn Outfall had
been put in to divert flow away from the natural route to
the Motutangi Stream, so that it passes instead via Lands
End and The Cut. Much of the natural course of the stream
had been on the land which is now the Summers farm. Mr
England did not consider that any of the maintenance works
done had been other than for the benefit of the drainage
district as a whole. He refuted the suggestion made by Mr
Summers that there had been no concern with avoiding or
mitigating flooding on the lower-lying land. Neither did
he agree with the suggestion made by Mr Summers that a
weed bucket only be used for cleaning the drains. The
witness gave the opinion that only using a weed bucket
would not be appropriate, as the cleaning work included
the removal of silt and sand deposited in the drains.
81. Mr England did not accept Mr Summers allegation

of maintenance being carried out on an ad hoc basis to Mr
Summers detriment, stating that the procedures, method
of operation, and work programmes for the Motutangi
Drainage District were clearly understood and
implemented. He deposed that work was undertaken as
and when needed, and that not all the drains need to be
cleared every year, but over a period clearance work on all
drains had been undertaken.
82. Asked whether, if the Motutangi is obstructed
downstream of the Cut, water would back up, he agreed
37
that it would to an extent; but when he was asked if Mr

Summers would get flooding on lower parts of his farm,
Mr England replied that this was not quite correct, although
water would back up. Asked whether, if water could not
flow past Lands End, it would be diverted through the old
bed of the Motutangi, the witness agreed that it would,
and would flow into the scientific reserve and on to the
Summers farm, depending on the size of the flood. He
agreed that it was important to keep the drains maintained,
and that clearing weeds is part of the maintenance, as weeds
form part of an obstruction within a drain
agreed that weed growth may have contributed to backingup of water.

87. Mr Cook gave the opinion that the present
management practice of cleaning drains in late autumn
provided a level of natural water-table control, with spring
growth and silt aggradation in the drains raising the water
table over the summer months, but has the disadvantage
that properties were potentially subject to increased
flooding over that period. His study had shown that the
drainage system had been designed for an average annual
peak flow, so that flooding could be expected to occur on
average more frequently than every two years.
83. Mr England was asked about a letter dated 20 June

1986 from Mr Summers to Mr Palmer 15. The witness
recalled the Engineer having talked to him about it. Mr
England had known that Mr Summers had concerns in
1986. He had known that the Selwyn had not been cleaned
the year before, that there had been an attempt to spray by
helicopter, and it had been unsuccessful. Mr England
confirmed that the next year he had not arranged for the
Motutangi to be cleaned in full, or for the Selwyn or Lands
End to the Cut to be cleaned; he explained that 1500 metres
of the Selwyn had been sprayed and that the Cut had been
left for that year; and explained the system had been
cleaned to what was agreed by the Council and the
Engineer.
88. Mr T Blucher, a member of the drainage committee

from 1984 to 1996, chairman from 1984 to 1992, and one
of the Second Respondents in these proceedings, deposed
that the committee had recommended to the District Council
which drains should be cleaned or sprayed. He remarked
that it had been the Councils final responsibility and that
the Council would sometimes add or delete drains or areas
of drains which the committee had recommended, and that
the committee never gave instruction to contractors on how
to do their job. Mr Blucher deposed that in 1992 he had
walked the main cut, the stream main outfall, and the Bryan
and Beazley Drains, and reported that the cleaning had left
a lot to be desired. He stated that the committee
84. Mr England stated that in 1986/1987, work had been

concentrated more on relieving the top end of Selwyn and
main drain outfalls, but some work had been carried out
on the stretch from Lands End to the Cut. He agreed that
in 1988 the Motutangi had not been cleaned by machine
or sprayed, and in 1989 only 1000 metres of it had been
cleaned; then nothing had been done on it until 1991, and
then only 500 metres had been cleaned; and that the only
year when the Motutangi had been cleaned for its entirety
had been 1992. Mr England explained that the stream had
not been cleared in 1988 because in creating access for
the hydraulic excavator in 1987, the stream had been
cleared at that time; and that in 1994 and 1995 it had not
been necessary to clean it.
... certainly do not take the view that the rest of

the land should be drained to the detriment of the
land being farmed by Mr Summers.
89. Mr N Bryan, another of the second respondents, had

been a member of the drainage committee from its
formation in 1984. He agreed that the purpose of clearing
weeds had been to improve the flow of water, that if weeds
were not cleared, there were problems with draining water
from the district, and that regular cleaning promoted
efficient drainage. Mr Bryan agreed that for 1996 the
committee had recommended cleaning by machine
between Lands End and the Cut of only a stretch of 100 or
200 metres at the bottom end, immediately above the Cut.
In 1987 only 500 metres of the Motutangi had had
maintenance work. That had been a recommendation he
had made, because major capital works had been done in
the Motutangi at about that time, they had cleared the
stream for a considerable period, and cleaning the 500
metres was all that was required on it. Mr Bryan deposed
that in one year, the committee had tried spraying rather
than machine cleaning, but it had not worked, because there
had been too much water in the creek at the time.
85. Mr England testified that the Cut had been cleared

in 1987 and 1989, that sections of the Selwyn Drain were
sprayed in 1988 and machine cleared in 1989, and in 1992
the total length was cleared; that the Cut was cleared in its
entirety in 1993, and sections of it in 1994 and 1995.
86. Shown photographs of weeds, Mr England deposed
that some weeds float. Shown photos of water lying in
Summers farm, the witness would not agree that this is
what happened when a stream is not cleared of weed, nor
did he agree that water lying on the Summers farm was
totally contributed to by weeds in the drain. He was unable
to say that flooding on the Summers farm had been caused
by weed growth in the Motutangi Stream, although he
90. Asked in cross-examination whether before 1992

there had been any year in which the committee had
recommended that the entire length of the Motutangi be
cleared of weeds by machine, he agreed that there had not,
15 Exhibit C to Mr Englands first affidavit.
38
and explained that it had only been in recent years that

there had been a build-up of paraquatica weed in the
Motutangi Creek, remarking that earlier they had not had
that problem. He believed that paraquatica had come from
the Main Outfall and was creeping down the Motutangi
Creek. He confirmed that the committee had always tried
to keep a reasonable level of drainage in the Motutangi
Creek, and that if the Motutangi was not kept cleared, it
would impede the flow of water out of the district.
96. The evidence is that the Selwyn Outfall down to

Lands End was sprayed in 1985, sections were sprayed in
1986, 1500 metres were sprayed in 1988 and cleared by
machine in 1989; in 1992 the total length was cleaned;
and it was cleaned down to the Bacica Drain in 1997. It
was sprayed in at least some of the intervening years.
97. The evidence shows that the stretch from Lands End
to the Cut was sprayed in 1985, some work was done in
1986/87; it was cleaned in full in 1989 and in 1993; and
short sections were cleaned in 1994, 1995 and 1996. That
stretch was sprayed in some of the intervening years.
91. Mr R A Seymour, another of the Second

Respondents, had also been a member of the advisory
committee since 1984. He deposed that before 1987 the
water had not been able to get away quickly enough, until
the Cut was lowered and trees taken out of the Motutangi
Stream. In that year virtually the whole area had been done
by capital works, and maintenance work had not been
necessary for a couple of years.
98. The Main Outfall (save the last 22 chains) was

sprayed in 1985; in other years up to 1987 there was ad
hoc cleaning; since then it was cleaned in every year.
99. The Motutangi Stream was partly cleaned in 1986;
500 metres was cleaned in 1987, later that year it was
thoroughly cleaned in creating access on the east bank for
use by hydraulic excavator; 197 metres was cleaned in
1988; 1000 metres was cleaned in 1989; 400-500 metres
was cleaned in 1991; the whole length was cleaned in 1992
(although not to Mr Bluchers satisfaction) and again in
1993 and (all but 100 metres) in 1994, 1995 and 1996.
92. Asked about the absence of recommendations for

cleaning from Lands End to the Cut in 1990 and 1991, Mr
Seymour explained that that stretch has quite a fall, and
the problem with the Selwyn Drain was higher up where
sandstone was not removed when the drain was formed.
He also stated that if the drain was not cleaned by machine,
it would have been sprayed.
100. We find that at times between cleanings and

sprayings when those drains may have contained
considerable quantities of weeds, the weeds would have
impeded flow of water through them. We also find that
when ponding or flooding occurred on the lower part of
the Summers farm at times when flow of water through
those drains was impeded by weeds, the fact that those
weeds had not been cleared at those times is likely to have
contributed to the ponding or flooding. However we do
not accept that the existence of the weeds in the drains
would have been the only cause of the ponding or flooding,
nor the only reason why the water did not drain away from
the Summers farm more quickly. In our understanding of
the evidence the causes of that were more complex, and
included the levels of the Selwyn Outfall, particularly
below Bacicas Drain, the possibility of water passing down
the old course of the Motutangi Stream through the
scientific reserve, and the configuration and possibly the
capacity of private drains on the Summers farm.
93. The other of the second respondents, Mr M

Yerkovich, confirmed that in 1987 the Motutangi from the
Cut down had been cleaned out thoroughly. Asked about
clearing the stretch from Lands End to the Cut, he deposed
that members of the committee had to decide what could
be spent where out of a limited amount of money, but if
it was not cleaned by machine, he would spray the whole
7 kilometres himself.
94. In making our findings on this issue, we start by
noting that there is no evidence of any obligation by the
District Council or the local committee that all the district
drains, or even the primary drains, were to be cleaned every
year. Rather, we find that decisions were to be made
annually by the District Council, after receiving advice
from the local committee, on what cleaning was to be done,
and by what method. Inevitably cost would have been a
factor. Although the Council had power to strike a rate on
the district to meet the cost of works for any year, it would
(particularly after the end of subsidies) have been
influenced by the opinion of the ratepayers, especially as
expressed by the local committee, in deciding an
appropriate amount to be raised and spent, as well as how
the funds were to be spent.
Separation of the Selwyn Outfall and the Aspin Drain

101. The Aspin Drain, which crosses and drains a large
part of the Summers property, starts some distance to the
south at a position which is close to the Selwyn Outfall.
At the point where the drains are closest, the Selwyn Outfall
flows in a generally north-easterly direction, and the Aspin
(with an invert about 0.4 metres lower than the Selwyn)
flows generally towards the north-west. The Selwyn
Outfall carries water from higher up the catchment,
including the Seymour and Vuksich properties.
95. We have focused on the four stretches of drain of

particular importance to the Summers farm: the Selwyn
Outfall down to Lands End, Lands End to the Cut, the
Main Drain through the canal to the Cut; and the Motutangi
Stream from the Cut down. We accept that the evidence
may not be complete.
39
102. In May 1995 the Northland Regional Council was

advised that a pipe had been installed between the Selwyn
Outfall and the Aspin Drain. The pipe had been installed
without the Regional Councils consent, in contravention
of the Northland Catchment Commission Bylaw 1967 16 ,
clause 9
District, and both agreed to work on preparing such a

management plan.
107. The outcome of the meeting had been that the
Regional Council agreed to have the abatement notice
withdrawn, on terms that the drainage committee was to
block the culvert until such time as resource consent was
granted.
No owner or occupier of land shall cause or suffer

any constructed watercourse to be connected or
continued to be connected directly or indirectly
with any other constructed watercourse within
the Commissions area without the prior consent
of the Commission and then only upon such
conditions and in such manner as the Commission
shall impose and direct. Such consent may provide
for the payments of annual or other charges of
such amount as the Commission may determine.
108. On 6 October 1995 the District Council applied to

the Regional Council for a resource consent for the pipe
between the Selwyn and Aspin Drains. The application
was returned to the District Council, noting that there had
been no consultation with interested parties, a management
plan had not been prepared, there was no assessment of
effects on the Aspin Drain and adjoining properties, and
no fee had been paid. The District Council did not make
any further application, and no resource consent has been
issued.
103. Mr Cathcart deposed that although the pipe would

not have carried much water, it would have created a weak
spot. In a flood there would have been a danger that the
fill around the pipe would be washed away, and water
which was meant to be contained in the Selwyn drain would
flood the area generally. The pipe also went against all
planning for the drainage of water from the area. The water
had been meant to be contained in the Selwyn Outfall to
be channelled down to the Motutangi Stream, not to go
into the Aspin Drain. The pipe exposed the Turner and
Summers farms to risk of flooding.
109. During the winter of 1996 Mr Cathcart received

complaints from Mr Summers that the illegal pipe had been
unblocked, and that floodwater was also flowing over the
bank of the drain.
110. In response to the complaints Mr Cathcart contacted
the District Councils Kaitaia drainage engineer who
arranged to block the pipe and have it removed. Within a
short time afterwards the pipe was removed and the
embankment between the two drains was built up again.
104. The Regional Council issued an abatement notice

dated 25 May 1995 to the District Council. The action
required by the abatement notice was:
111. Mr Summers contended that even with the pipe

removed there was still a need for further heightening of
the bank of the Selwyn Outfall, in addition to further
cleaning further down the Selwyn, to protect his farm from
flooding. Mr Cook stated that the purpose of the Selwyn
Outfall had been to divert water away from the Summers
property, and reduce the impacts of flooding. A second
effect had been to reduce the flow in the Aspin. The result
had been reduced flows in the Aspin Drain and a reduction
in the water level which could lead to an increase in the
potential for overdrying and shrinkage of the peat. In Mr
Cooks opinion, discharging water into the Aspin in periods
of low flow would be a benefit to maintaining more
consistent flows in the Aspin drain. He suggested a floodgate as a possible means of control, but he was also firm
in his belief that a holistic approach to the whole Motutangi
drainage district needs to be taken, because works carried
out on one property or one part of the drainage district
will affect another property or another part of the drainage
system. The witness gave the opinion that any work
requires careful planning for flood management and
summer droughts, and that the first step is to carry out a
survey of the drainage district.
The 300mm culvert which diverts flow into the

Aspin drain must be removed and the trench
backfilled with suitable non-permeable material,
not local sand or peat, for the whole 20 metre width
of the reserve and the head of the parallel drain
in the Yerkovich property must also be backfilled
within the reserve.
105. There had been no appeal against the issue of the

abatement notice, but the Motutangi Drainage Committee
had responded by a letter to the Regional Council stating
that it was imperative that all personnel have on-site
discussions, followed by written reports and directives
from the appropriate council officers. This had been agreed
to, and the parties had attended a meeting on Mr
Yerkovichs property on 30 June 1995. Mr Yerkovich
owned the property where the offending pipe had been
installed.
106. At that meeting Mr Cathcart urged the Far North
District Council and the drainage committee to prepare a
proper management plan for the Motutangi Drainage
16 The bylaw is incorporated in the transitional regional plan for the Northland Region under sections 368 and 369 of the Resource Management Act
1991.
40
(iii) An order requiring the respondents to pay the

applicant his actual and reasonable costs
which the applicant will incur in avoiding,
remedying and mitigating adverse effects on
the environment where the respondents have
failed to comply with rules in the transitional
regional plan and their obligations under the
Act (as set out under (i) above). Section
314(1)(d)(iii) and (iv) Resource Management
Act.
112. Mr Summers concern was to protect the lower part

of his farm from flooding. The removal of the pipe had
alleviated that concern to some extent, but he still had
concern as the District Council was proposing such a
scheme, and that Mr Cook also saw some merit in it.
113. The District Council did not consider it appropriate
to raise the wall of the Selwyn Drain without detailed
investigation of possible effects. It maintained that the
desirability or otherwise of a pipe connecting the Selwyn
Outfall and the Aspin Drain was also a matter that deserves
fuller investigation. All these matters could be considered
in the context of finalisation of the management plan, with
input from all affected parties.
116. More specifically, by his amended application 18

Mr Summers sought the following terms and conditions
in respect of the orders
1.
114. It was the District Councils case that the

unauthorised installation of the connecting pipe had been
a red herring in respect of Mr Summers application for
enforcement orders, as the pipe had not contributed to
flooding which would not otherwise have occurred. Mr
Yerkovichs evidence was uncontradicted that prior to the
installation of the pipe regularly, after rain, water had
flowed from the Selwyn Outfall over the stopbank and into
the Aspin Drain. He also deposed that the August 1996
storm had been of such magnitude that it was unavoidable
the Selwyn stopbank would be over-topped and water
released in the direction of the Aspin. Even if that overtopping had not occurred then flooding would have
occurred on the Summers property in the vicinity of the
old Motutangi stream bed because the amount of water
exceeded the drainage systems design capacity.
2.
An order requiring the first and second

respondents not to carry out any work
deepening any of the natural or man-made
watercourses within the Motutangi Drainage
District.
An order requiring the respondents not to do
any other work on the drains and watercourses
within the Motutangi Drainage District:
i)
Except cleaning and clearing of weeds that

does not involve any deepening of drains and
watercourses; or
ii) Without having first consulted the applicant
and obtained his consent to the works; and
iii) Without having first provided the applicant
and the Northland Regional Council with full
details of the work to be carried out and an
assessment of the effects; or
iv) Except in accordance with a management plan
for the Motutangi Drainage District approved
by the Northland Regional Council; or in
accordance with a resource consent for that
work granted by the Northland Regional
Council.
The relief sought

115. Having reviewed the evidence on the three main
issues, we now address the relief sought by Mr Summers.
By an amended application17 he sought
3.
i)
Clearing of drains
An order requiring the respondents to clear
the Selwyn Drain (between the Bacica Drain
and Lands End) of weeds [effectively], but
without deepening;
ii) An order to clear the watercourse between
The Cut and Lands End [effectively],
including clearing of banks (again without
deepening);
iii) An order fixing the time for that clearing and
cleaning to be carried out and giving other
directions for the carrying out of that work.
(i) An order requiring the respondents to cease

carrying out activities that contravene the Act
(Sections 13(1)(b), 14(1)(a), 15(1)(a) and
Section 17(1)), rules in the transitional
regional plan of the Northland Region
(breaches of Bylaws 8, 9 and 15 of the Bylaw
for the protection of watercourses and
defences against water 1967, being deemed
rules of the transitional plan); or are likely
to be noxious, dangerous, offensive or
objectionable to such an extent that they have
adverse effects on the environment (Section
314(1)(a)(i) and (ii) of the Resource
Management Act)
(ii) An order requiring the respondents to do work
necessary to avoid, remedy or mitigate actual
and likely adverse effects on the environment
caused by or on behalf of the respondents
(Section 314(1)(b)(ii) and (c) Resource
Management Act).
4.
In respect of the Selwyn and Aspin Drains:
Orders requiring the respondents:

...
ii) To fill in the Aspin Drain for a distance of
20 metres from the Selwyn Drain;
iii) To raise the wall of the Selwyn Drain by a
height of at least 1.5 metres and strengthen
the wall of the Selwyn Drain by widening it
to a breadth of 10 metres (so as to prevent
17 Dated 18 March 1997.

18 As further amended by his counsel in his opening address on 3 November 1997.
41
any flow of water out of the Selwyn Drain

and into the Aspin Drain) for the distance
running from the ridge east of where the
Selwyn Drain and the Aspin Drain meet
upstream to the point by the ridge south of
the rails at the end of the pines on the
Yerkovich property;
iv) To remove the cattlegate from the side of the
Selwyn Drain to a distance of at least 20
metres away and fence from the gateway to
the Selwyn Drain;
v) To prevent stock drinking from the Selwyn
Drain near the Aspin Drain, by erecting a
fence or other similar restraint.
5.
out such other works as are proposed by the

engineers appointed in (ii) above to lift the
water table within the Motutangi Drainage
District and to maintain water levels.
vi) An order requiring the respondents to engage
contractors approved by the Court to carry
out the works;
vii) Fixing times within which the respondents
shall obtain resource consents and carry out
the work.
7.
An order for costs including solicitor/client

costs.
8.
An order that the applicant not be required

to pay directly or indirectly for the
respondents costs in this application or for
the respondents costs of giving effect to any
orders of the Court (other than by way of
payment of general rates) and in particular
an order indemnifying the applicant for any
increase in rates levied in respect of the
Motutangi Drainage District following any
orders payable by the respondents.
Reinstatement
Orders:
i)
Requiring the respondents to carry out work

reinstating those parts of the applicants farm
damaged by depletion of groundwater and
flooding, such work to include:
a)
b)
c)
d)
e)
f)
Spreading lime;
Deep chisel ploughing;
Cultivation by rotary hoeing
Stump chipping
Application of fertiliser
Resowing in grass.
The law
117. Section 13(1)(b) of the Resource Management Act
199119 provides
13. Restriction on certain uses of beds of lakes
and rivers (1) No person may, in relation
to the bed of any lake or river,
...
(b) Excavate, drill, tunnel, or otherwise disturb
the bed;
...
unless expressly allowed by a rule in a
regional plan and in any relevant proposed
regional plan or a resource consent.
ii) Requiring the respondents to obtain the

approval of the Court to the contractors to
be engaged to carry out the work under (i)
above.
iii) Fixing the time within which the respondents
shall carry out the work;
iv) In the alternative, requiring the respondents
to pay the applicant the costs the applicant
will incur in carrying out the reinstatement
work himself.
118. Material provisions of section 1420 read
6.
i)
Raise water tables

An order requiring the respondents to obtain
resource consents for the works in (iii) and (
iv) below;
ii) Requiring the respondents to appoint
engineers approved by the Court to design
and supervise works in (iii) and (iv) below;
iii) An order requiring the respondents to
construct in the bed of the Motutangi Stream
from north of the S-bend in the Roy Wagener
property to the Cut a series of weirs to lift
the watertable in the stream 20 centimetres
above the level of silica sand;
iv) An order requiring the respondents to
construct in the bed of the Beazley Drain a
series of weirs to lift the watertable 50
centimetres from the present base of the drain;
v) An order requiring the respondents to carry
14. Restrictions relating to water (1) No

person may take, use, dam, or divert any
(a) Water (other than open coastal water)
...
unless the taking, use, damming, or diversion
is allowed by subsection (3).
...
(3) A person is not prohibited by subsection (1)
from taking, using, damming, or diverting any
water, heat, or energy if
(a) The taking, use, damming, or diversion is
expressly allowed by a rule in a regional plan
[and in any relevant proposed regional plan]
or a resource consent;
...
19 As substituted by section 11 of the Resource Management Amendment Act 1993.

20 As amended by section 12 of the Resource Management Amendment Act 1993.
42
119. Section 15(1)(a)21 provides
in a proposed plan,] a requirement for a

designation or for a heritage order, or a
resource consent, section 10 (certain existing
uses protected), or section 20 (certain existing
lawful activities allowed); or
(ii) Is or is likely to be noxious, dangerous,
offensive, or objectionable to such an extent
that it has or is likely to have an adverse effect
on the environment:
15.
Discharge of contaminants into

environment(1) No person may discharge
any
(a) Contaminant or water into water;
...
unless the discharge is expressly allowed by
a rule [in a regional plan and in any relevant
proposed regional plan], a resource consent,
or regulations.
(b) Require a person to do something that, in the

opinion of the Court, is necessary in order to
...
(ii) Avoid, remedy, or mitigate any actual or likely
adverse effect on the environment caused by
or on behalf of that person:
120. Section 17 22 provides

17. Duty to avoid, remedy, or mitigate adverse
effects (1) Every person has a duty to avoid,
remedy, or mitigate any adverse effect on the
environment arising from an activity carried
on by or on behalf of that person, whether or
not the activity is in accordance with a rule
in a plan, a resource consent, [section 10,
section 10A, or section 20].
(c) Require a person to remedy or mitigate any

adverse effect on the environment caused by
or on behalf of that person:
(d) Require a person to pay money to or reimburse
any other person for any [actual and]
reasonable costs and expenses which that
other person has incurred or is likely to incur
in avoiding, remedying, or mitigating any
adverse effect [on the environment, where the
person against whom the order is sought],
fails to comply with
...
(iii) A rule in a plan [or a proposed plan] or a
resource consent; or
(iv) Any of that persons other obligations under
this Act.
(2) The duty referred to in subsection (1) is not

of itself enforceable against any person, and
no person is liable to any other person for a
breach of that duty.
(3) Notwithstanding subsection (2), an
enforcement order or abatement notice may
be made or served under Part XII to
(a) Require a person to cease, or prohibit a person
from commencing, anything that, in the
opinion of the Environment Court or an
enforcement officer, is or is likely to be
noxious, dangerous, offensive, or
objectionable to such an extent that it has or
is likely to have an adverse effect on the
environment; or
(b) Require a person to do something that, in the
opinion of the Environment Court or an
enforcement officer, is necessary in order to
avoid, remedy, or mitigate any actual or likely
adverse effect on the environment caused by,
or on behalf of, that person.
...
122. Reliance was also placed on subsection (4) of that

section
(4) Without limiting the provisions of subsections
(1) to (3), an order may require the restoration
of any natural and physical resource to the
state it was in before the adverse effect
occurred (including the planting or replanting
of any tree or other vegetation).
Consideration
121. The provisions of section 314(1)23 relied on for

making the orders sought read
123. Mr Summers counsel submitted that this is a

resource management case, for protection of resources
which include peat, and the groundwater and springs that
sustain the peat.
314. Scope of enforcement order (1) An

enforcement order is an order made under
section 319 by the Environment Court that
may do any one or more of the following:
124. On the first main issue, overdrainage, it was Mr

Summers case that the springs are lost with overdrainage,
so that the peat dries out and will not rewet; that the District
Council is not entitled to avoid responsibility for drainage
and flood protection for the Summers farm, which is class
A land in the Motutangi Drainage District; that by the
former Catchment Commission bylaw (which is now
(a) Require a person to cease, or prohibit a person

from commencing, anything done or to be
done by or on behalf of that person, that, in
the opinion of the Court,
(i) Contravenes or is likely to contravene this
Act, any regulations, a rule in a plan, [a rule

22 As amended by section 15(1) of the Resource Management Amendment Act 1993.
43
incorporated in the transitional regional plan), deepening

the drains requires resource consent as a discretionary
activity, and none has been obtained for deepening drains
in the Motutangi Drainage District.
130. In respect of the order sought that the respondents

not do any work on drains and watercourses in the drainage
district (except cleaning and clearing of weeds that does
not involve deepening) without having first consulted with
Mr Summers and obtained his consent to the works, the
District Council maintained it should not be required to
obtain Mr Summers consent. It stated that following
consultation with affected parties, it intends to adopt a
management plan for the drainage district as contemplated
by a variation to the Regional Councils proposed water
and soil plan, and works in the drainage district would
then be carried out in accordance with the management
plan, and with resource consent where required. Works
proposed by Mr Summers in respect of the Selwyn and
Aspin Drains could be considered in the process of
finalising the management plan, but it maintained that they
should not be considered in isolation. It submitted that it
is not realistic to expect that flooding would not occur on
Summers farm, and that the evidence does not establish
that flooding related to lack of drain maintenance, and it
denied responsibility for reinstating the Summers farm.
125. On the second main issue, inadequate drain cleaning,

it was Mr Summers case that there had been poor
performance of drain clearing duties; that his farm had
suffered very real probems, with much of it under water
for extended periods; and the District Council and the
drainage committee have been unresponsive to his
problems; that the effect of pasture being under water for
prolonged periods has been to kill it; that uncertainty about
future flooding created uncertainty, discouraging
investment, holding back production and leading to
increased debt.
126. On the third main issue, separation of the Selwyn
Outfall and the Aspin Drain, Mr Summers was concerned
that plans are underway to make the change [ie, to connect
the Selwyn into the Aspin] de facto, without going through
the proper processes that is, without obtaining resource
consent, as happened in 1995.
131. Counsel for Second Respondents submitted that the

application was misconceived, as the Act is directed to
sustainable management of the environment, which
extends beyond the Summers farm, to the whole of the
Motutangi Drainage District. He also submitted that the
alleged failure to perform a duty under section 17 had not
been made out on the evidence; and that as the Second
Respondents were an advisory committee, performing a
community service, nothing they were involved in was a
failure to comply with obligations under the Act.
127. The basis for the orders sought was alleged breaches
of the Resource Management Act, in repeated deepening
of the Motutangi Stream and other drains without resource
consent, and also in contravention of the duty imposed by
section 17; in repeated failure to clean by machine the
Selwyn Outfall between the Bacica and Lands End, and to
keep clean between Lands End and the Cut; and diverting
water without resource consent in installing the connection
between the Selwyn and the Aspin.
132. The Second Respondents acknowledged the

experiment of installing a culvert between the Selwyn and
the Aspin, maintained that it had been done without
knowledge that resource consent was required, and
confirmed that the pipe was blocked and ultimately
removed after the abatement notice was given. They
contended that Mr Summers problems are of his own
making, and that the restoration sought would cost more
than the value of the farm itself .
128. In addition to restraining orders to prohibit further

overdeepening of drains or future connection between the
Selwyn and the Aspin without lawful authority, Mr
Summers sought mandatory orders, on the basis that section
314(4) (and other provisions of the Act) contemplate
reinstatement for protection of the environment. The orders
sought were intended to reinstate the Summers farm and
raise the water tables.
129. Counsel for the District Council submitted that the
Resource Management Act has no retroactive effect, and
the proceedings should be confined to effects caused after
the commencement of the Act on 1 October 1991. He also
submitted that the restraining orders sought against the
District Council are unnecessary as it has not and does not
intend to carry out activities which contravene the
legislation; that the mandatory orders sought against it are
not justified as it had not done work which had caused
adverse effects on the environment; and it denied liability
for any costs which the applicant might incur in carrying
out work on his farm.
133. It is our understanding that, as submitted by Mr Ray

on behalf of the District Council, the Resource
Management Act is not retrospective in substantive matters,
and does not authorise the Court to make an enforcement
order in respect of activities which occurred prior to the
commencement of the Act. In that regard we respectfully
follow the Courts decision in Voullaire v Jones24 .
134. To the extent that Mr Summers seeks orders
restraining overdeepening, we have not found his
allegations of overdeepening established, nor is there
evidence that the District Council or the Second
24 (1997) 4 ELRNZ 75.
44
Respondents have any present intention of carrying out

any deliberate deepening of any public drain or watercourse
in the district without whatever authority may be needed
under the Resource Management Act. We accept that the
operation of machinery to clean drains may not in practice
be able to be carried out with such precision as to avoid
superficial deepening in local areas, but we find that such
unavoidable lowering of stream or drain invert levels would
not have significant effect on draining the Summers farm.
The application has failed in respect of the alleged
overdeepening and overdrainage, and no order will be made
in relation to it. It follows that the mandatory orders sought
to reinstate the Summers farm from the alleged effects of
overdeepening and overdrainage have also to be declined.
support the cost of attaining that standard. We find that Mr

Summers was not entitled to expect that standard at all
times.
138. The evidence does show that in every year from 1985
to 1997 some maintenance work was done, and parts of
the various drains and watercourses were cleared; and that
over the period all of the stretches of drain and watercourse
of importance to the Summers farm and not under Mr
Summers control were cleaned more than once. The
evidence did not establish the assertion made in Mr Haighs
letter to the Ombudsman that the local drainage committee
had sought to have a certain drain critical to Mr Summers
maintained less often in favour of other drains. Rather it
was consistent with the claims made by Mr England and
the members of the drainage committee that they had made
decisions according to current needs for the benefit of the
drainage district as a whole.
135. The allegations of inadequate drain cleaning are the

basis for the mandatory order sought for clearing of part
of the Selwyn Outfall and the Motutangi Stream. In
considering that proposal, we accept that keeping the drains
and stream clear of weeds contributes to the draining of
the Summers farm; and that when their flow is impeded
by weeds that contributes to water lying on the farm longer.
We also accept Mr Englands opinions that it is not possible
to have the drains in optimum condition all the time, that
not all drains need to be cleaned every year, and that the
drainage scheme cannot guarantee that the Summers farm
will be free of surface ponding. Regrettably, occasions may
arise where a contractor has been engaged to carry out
cleaning work, and the result is found unsatisfactory (as
reported by Mr Blucher of the work done in the Motutangi
Stream in 1992).
139. In our judgment the evidence does not justify making

any enforcement order against the District Council or the
Second Respondents in respect of the allegations of
inadequate drain maintenance.
140. The unauthorised installation of the culvert between
the Selwyn Outfall and the Aspin Drain in 1995 was
acknowledged by the Second Respondents. There was no
evidence to show that the District Council had
responsibility for what was done; there was no evidence
linking the existence of the pipe with any harm to the
Summers farm which would not have occurred anyway
in the flood conditions of the time, and the pipe has since
been removed.
136. Plainly, differences of opinion can arise about how

much clearing should be done at a particular time, how
often any particular drain or watercourse should be cleared,
the methods to be used, and how much money should be
raised from the district for drainage work in any year. The
last is a political question, better decided by a
democratically elected body, and one on which a court
should refrain from expressing an opinion. It would of
course be desirable for the standards of clearing and other
maintenance work to be specified, to provide a context for
making the other decisions. The management plan
proposed for the drainage district would be an appropriate
document to contain such a specification.
141. Mr Summers was concerned that the District Council

was currently proposing such a link, and that its consultant
engineer Mr Cook saw some merit in it. However there is
no basis in the evidence for supposing that the District
Council, whether with or without Mr Cooks advice, would
consider installing a pipe or culvert between the Selwyn
and the Aspin without obtaining whatever authorisation
may be required under the Resource Management Act. We
accept that no enforcement order needs to be made against
the District Council to ensure that.
142. Similarly, we are confident that each of the Second
Respondents is now fully aware that the installation of the
pipe without resource consent was a breach of the law.
Without condoning that, we find that no enforcement order
is required against the Second Respondents to ensure that
there will be no repetition of that offence.
137. The evidence shows that the drains and watercourses

of the Motutangi Drainage District have not been kept clear
of weeds and as free-flowing as may be possible at all
times throughout the last 12 years. However that does not
justify making enforcement orders against the District
Council or the members of the drainage committee. While
that standard may have been a worthy aim, it was not
established that the District Council or the drainage
committee had a duty to achieve that result. Indeed we
doubt that the productivity of the farms of the district would
143. In the absence of evidence linking the existence of

the pipe with harm to the Summers farm, there is no basis
either for a reinstatement order in that respect.
45
144. Mr Summers also sought mandatory orders for

filling the Aspin Drain for 20 metres, for alterations to the
wall of the Selwyn Outfall in the vicinity of the Aspin
Drain, and controls for livestock. We accept the District
Councils position that any such works, like the option of
linking the Selwyn and the Aspin, might properly be
considered in the process of settling the drainage district
management plan. We share its concern that they should
not be considered in isolation from the whole drainage
scheme. Accordingly we decline to make any of the
mandatory orders sought by Mr Summers in respect of the
separation of the Selwyn Outfall and the Aspin Drain, but
without prejudice to consideration of those, and other
options, in the management plan process.
Determinations
145. In the outcome, the Court declines to make any of
the enforcement orders sought by Mr Summers, and the
application is dismissed. The Court commends to the
parties the value of the proposed management plan for the
drainage district, and the opportunities for them to take
part in the formulation of its content.
146. The question of the costs of the respondents is
reserved.
DATED at AUCKLAND this 23rd day of November 1998.
DFG Sheppard
Environment Judge
46
47
THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA
MISC. CAUSE. NO. 268 OF 1999
NATIONAL ASSOCIATION OF
PROFESSIONAL ENVIRONMENTALISTS (NAPE) .. APPLICANT
BEFORE : THE HON. JUSTICE RICHARD O. OKUMU WENGI.
48
RULING:
Uganda. Such environmental impact study shall

be subject to approval by Government of Uganda.
This application by way of Notice of Motion was brought

under Order 48 rules 1 and 2 of the Civil Procedure Rules,
Section 101 of the Civil Procedure Act and Section 72 of
the NEMA Statute which I take to refer to the National
Environment Authority Statute 4 of 1995. It seeks a
temporary injunction to stop the respondent concluding a
power project agreement with the Government of Uganda
until the Natural Environment Management Authority
(NEMA) has approved an Environmental Impact
Assessment Study (EIAS) on the project. The motion
further seeks declarations that such approval of the EIAS
is a legal prerequisite and that any endorsement of the
project by Parliament without this EIAS approval would
contravene the law. The end result is that the applicant is
asking Court to stop signature of the agreement with the
executive and declare that its endorsement by Parliament
without NEMA approval of EIAS would contravene a law
and would thus be illegal, null and void and of no effect.
The motion was supported by one affidavit and two
supplementary affidavits of Mr. Frank Muramuzi the
President of the applicant, a Non-Governmental
Organization active in the area of environment protection.
When the application came for hearing the Respondents
were not represented nor were they in court. There was no
clue that the respondents were contesting the claim. An
affidavit of service was filed indicating that process was
served on the respondents Chief Administrator Mr. henry
Kikoyo who sighed and stamped on a cop of the motion
on 29th March 1999. On an application by Counsel for the
applicant this matter proceeded ex-parte.
Learned counsel further pointed out that under paragraph

3.2 of the same agreement the Government of Uganda
would on signing the agreement proceed to compulsorily
acquire the site, the staging area and the inundated land
and the U.E.B. shall acquire rights to the route, way leaves
and easements. Mr. Kakuru contended that sine signing
these agreements would trigger all these activities, it would
enable the respondents to circumvent the law in
contravention of which the project would be endorsed. The
NEMA approval which is progressing at its statutory pace
would be rendered meaningless if not nugatory. The danger
of acting in this way and getting Parliament to endorse the
project and the Executive to sign the agreements prior to
the approval by NEMA was that the NEMA law would
have been contravened in the process. Mr. Kakuru argued
that bypassing NEMA procedures which was possible so
long as the Parliament and Executive actions above had
been concluded was the bone of contention., He further
contended that the NEMA procedure was a protective
measure in which the public who are concerned with the
project would invoke as part and parcel of public protection
of the environment and accessing the constitutional
guarantee of the right to a clean and healthy environment.
He submitted that the NEMA procedure was a necessary
ingredient of this right and that the short cut being adopted
by the Respondent to avoid compliance was in effect
directed at violating the NEMA Statute and ultimately the
constitutional regime and Environmental rights in Uganda.
Mr. Kenneth Kakuru learned counsel for the applicants first

tussled with the issue of procedure. He submitted that under
the NEMA Law there was no prescribed procedure to be
followed by an applicant who seeks a remedy under that
law. Counsel submitted that under section 72 of the NEMA
Statute any party who feels that the environment is being
harmed or is under threat of being harmed may bring an
action to prevent or stop such harm and obtain an order
from Court if the environment has been harmed to restore
it. He urged this court to hold that in the circumstances the
main issue was that there was a danger of a law being
violated and all that he needed was a declaration to this
effect and an order to prohibit the infringement. Counsel
submitted that there was no pecuniary claim against the
respondent or any injury claim as such but that whereas an
Environmental Impact Study I(EIAS)O has been submitted
by the respondent for consideration and approval by NEMA
the respondent was in high gear of having the
Implementation Agreement and power purchase agreement
approved and executed before the NEMA approval. Learned
Counsel referred this court to Articles 2.8(a) of the
Implementation Agreement that states:
Mr. Kakuru then referred to Order 37 of the Civil Procedure

Rules and argued that the requirement therein for there to
be a pending suit when seeking injunctions was inapplicable.
He stated hat this was a case of public interest litigation to
protect a public right while order 37 was restricted to
property disputes, private law rights in contract and tort.
Counsel argued that this was the reason why although he
sought an order of a temporary injunction he did not proceed
under Order 37 of the Civil Procedure Rules. He cited Nakito
& Brothers Ltd. Vs. Katumba to support the view that under
Section 2 of the Civil Procedure Act a Notice of Motion is
a suit. He prayed that this court accepts the motion and
entertains it as such and grant the reliefs sought. He
contended that Environmental Law has opened up new
horizons for litigation and adjudication having codified
common law especially in respect of locus standi and
procedure that is required to take an urgent track. This
complied with the new Constitutional mandate on a clean
and healthy environment which required that such matter
be dealt with expeditiously by Notice of Motion rather than
by way of a plant. Counsel contended that this action was a
bout a breach of law whereby the respondent navigates his
project around NEMA procedure and presses for Parliament
to endorse it and the executive to sign the deal.
(a) The Company shall prior to Financial closing

conduct or cause to be conducted an environmental
impact study in accordance with the Laws of
I must confess that I found it difficult diagnosing the claim

and the remedy in this case. In the first place the proposed
49
implementation agreement which has been initialed

stipulates, in article 2.8 cited earlier, that EIAS shall be
subject to approval by the Government of Uganda. The
respondent only undertook to conduct the study which it
did and left the approval process to the government. In other
words the respondent does not have to or want to subject
himself to the process of getting the approval which the
other party te government has the responsibility to do. If
therefore the government executes the agreement as it is
these terms would be binding and this court cannot speculate
that indeed the agreements would or would not be signed
before the approval of te impact studh by NEMA. It would
however not be difficult to expect that such approval would
be obtained after which the project can be considered
environmentally viable and can be implemented. But the
suspicions and concerns raised by the applicant that
unfortunately have not been dispelled by hearingthe
respondents or reading any counter pleadings raised many
other issues. The level of suspicious regard towards the
respondent was clearly brought out by the argument that
the moment the agreements are signed major actions by the
government and UEB are set in motion rendering NEMA
procedures superfluous. It was further brought out by
counsel for applicants reference to the brittle low capital
base of the Respondent whose share capital was Shs.
1,000,000/= only yet it was headed for a US$ 500 million
project with massive civil works. This he argued could not
promise much for the Polluter pays principle of
environmental law. Counsel contended that the EIAS
approval by NEMA would be unlikely granted taking this
principle into account. Counsel contended that this
unlikelihood of the respondent company passing through
the eye of the needle placed in its way by NEMA process
and criteria, made the alternative of the shortcut attractive
to the respondents. In clause 3.2 of the implementation
agreement the respondent is specifically protected against
environmental liabilities that may not encumber any land
acquired by the government and UEB besides NEMA
approval being the responsibility of government in the first
place. Finally counsel for the applicants while prayig for
the orders and declarations sought in motion, stated that no
orders for costs were being sought in this matter which was
brought as a public interest issue.
could only be determined by the process of approval of the

EIAS by NEMA.
As can be seen this application is canvassing wide
environmental concerns. It is only in looking at the legal
basis of these concerns that the issues can be determined.
According to the National Objectives and Directive
Principles in the Constitution of Uganda the state is
empowered to promote sustainable development and to
prevent or minimize damage and destruction to land, air
and water resources resulting from pollution or other
causes. The state and local governments are further
enjoined in the Environmental objectives (Objective No.
XVII) to create and develop parks, reserves and recreation
areas and ensure the conservation of Natural Resources. It
shall also promote the rational use of natural resources so
as to safeguard and protect the bio diversity of Uganda.
Article 245 of the Constitution mandated Parliament to
provide by law, measures intended to protect and preserve
the environment from abuse, pollution and degradation;
to manage the environment for sustainable development
and to promote environmental awareness. The NEMA
statute No. 4 of 1995 is for the purpose of this provision
such a law being then the existing law. Now under this
statute environmental impact assessment studies are
required before any development project such as the one
pursued by the respondents is approved. The respondent
has conducted the study having appointed W S Atkins
International as the study Consultants. This is Annexture
B to the second supplementary affidavit of Mr. Muramuzi.
In this affidavit the deponent states that the study as
presented did not address the issue of the loss of the
Bujagali Falls and the appropriateness of acquiring alternative
cheaper and environmentally more friendly sources of power. The
deponent states further that whatever information was provided
in respect of this and in particular in respect of Karuma Falls was
incomplete and misleading. The deponent then states that this
together with the ambiguity in the name of the Respondent was
likely to lead to rejection of the study by NEMA and to reflect on
the capacity of the Respondent to carry on the proposed project
without resort to an environmental disaster. The study was
conduced for AES Nile Power, a joint venture between AES
Electric Ltd a UK wholly owned subsidiary of the AES
Corporation, a US Company and Madhavani International of
Uganda according to the W S Atkins Executive summary
(Annexture B). According to the first supplementary affidavit, Mr.
Muramuzi averred that contrary to this statement the Respondent
is not a foreign company but a local company with only Shs.
20,000/= paid up capital. He doubted the capacity of such an entity
to execute a project of the magnitude proposed, without causing
great environmental destruction, massive flooding and elimination
of the spectacular Bujagali Falls. He further deponed that a failed
project would interfere with the natural flow of the River Nile
and cause other environmental products without even producing
Electric Power. He lastly deponed that the investment license held
by the respondent had no capacity to demonstrate ability to mitigate
environmental damage before signing any agreement as required
by the law. In presenting its case the applicant relied on section
35 and 72 of the NEMA Statute and Regulations made under that
As correctly sensed b counsel for the applicant the issues

raised by this application relate to whether there is a cause
of action, what the procedures should be and if the remedies
sought are available to the applicant. I would rather approach
it this way and as a result be able to determine if the matter
is not frivolous. In his submission counsel contended that
the application was not frivolous as it was brought to address
legal concerns. Violation of the law he said, was not a
frivolous matter. Counsel argued tat the applicant being an
NGO has come to court seeking the enforcement of the law
which was in danger of being violated in the process of
which the public right to environmental protection was being
infringed. He submitted that the alteration of the
environment being planned by the Respondents could or
could not be harmful. The impairment of the environment
50
law and suggested that the legal regime for environmental

protection was a novel area with imprecise justiciability issues.
prayed for an order to restore the environment. What he

has sought is an injunction to stop the signing of the
agreements and declarations. An injunction of this nature
cannot be given in my view since the agreements per se do
not alter the environment though the execution thereof
places the respondent in a position so as to be able to alter
environment by commencing works. I would conclude here
that if this is correct then the order sought relates to a matter
that by itself is not proximate to environmental damage as
such though the signed agreements could be evidence of a
reasonable likelihood for possible harm about to be done to
the environment. Without going into the realm of freedom
of contract, I would find it hard to prevent the act of signing
the agreement as such. Partly I am aware of executive
discretion in this matter, which I hope would be exercised
with full awareness that a procedure such as the conduct of
an acceptable EIAS has to be complied with, and the
government or its agency has to be satisfied that the works
envisaged will not damage the environment. I think the
executive is bound to follow the law and a remedy would
be available if indeed a private party caused it to go into
hazardous project. There are many procedures available.
For instance writs of Certiorari prohibition and Mandamus
are available. Also proceedings under Article 50 of the
Constitution on breaches of an environmental right or
freedom would probably be available. In all these
proceedings a notice of motion would be the correct pleading
in my view to commence these actions. However, since the
applicant did not move this court for the above remedies I
would have difficulty reaching a decision that injunctive
and declaratory reliefs could be secured by proceeding the
way the applicant did without invoking article 50 of the
Constitution, and the fundamental Rights of freedoms
(Enforcement) rules S1 26 of 1992. The latter rules made
under the repealed Judicature Act 1967 are applicable in
my view to proceedings under Article 50 of the Constitution
as they were saved by the Judicature Act 1996.
Section 35 of the NEMA Statute prohibits certain works on

rivers and lakes that affect the flow or the bed and or divert
or block a river or drain a river or a lake. Section 72 of the
Statute provides the parallel avenue for a person to apply to
court notwithstanding any action by the NEMA authority,
for an environmental restoration order against a person who
has hared, is harming or is reasonably likely to harm the
environment. Sub section 2 of that section provides:
(2) For the avoidance of doubt it shall not be
necessary for the plaintiff under this section to
show tat he has a right of or interest in the property
in the environment or land alleged to have been
harmed or in the environment or land contiguous
to such environment or land.
The environmental impact assessment is a study that is

required to be conducted as te guiding environmental
regulation model for implementation of certain projects.
Dams on rivers is one such project as stated in the Third
schedule. Electrical Infrastructure is another. In Section
97 it is a criminal offence for any person to fail to prepare
an EIAS contrary to Section 20 of the Act. And a person
who fraudulently makes a false statement in an
environmental impact statement commits an offence. I have
however not been able to pin point the consequence of
proceeding with a project once one has placed an impact
study with NEMA or no green light has come from NEMA.
Section 20(6) of the NEMA Statute requires that the
environmental aspects of a project as spelt out in an
Environment Evaluation be approved first.
The above describes briefly the general legal landscape
where the applicants concerns are located. The first issue
is whether the procedure adopted by him is proper and
competent. There is no prescribed procedure to seek
environmental reliefs under section 72 cited by counsel.
The reading of sub section 2 of that section would however
imply two things. Firstly it refers to a plaintiff. This would
in my mind directly refer to proceeding by way of
applicant. Secondly this section appears to be the enactment
of class actions and public interest litigation in
environmental law issues. This is because it abolishes the
restrictive standing to sue and locus standi doctrines by
stating that a plaintiff need not show a right or interest in
the action. There is also an administrative remedy available
in section 69 of the statute which empowers NEMA to
issue environmental restoration orders. Section 71
empowers the NEMA to enforce its own orders. The
recourse to court is however not subjected to exhaustion
of this remedy as the section 72 proceeding brought before
court is without prejudice to the powers of NEMA under
section 69 of the Statute. But even then this application
does not seek order under section 72 of the NEMA statute.
Counsel for the applicant asked this court to entertain this

application on the ground that the applicant had come to
court for redress and could not be turned away. I have
already stated that the applicant had a right to take action
without having to show a standing to sue on account of
the clear provisions of the NEMA statute. However,
standing to sue is a procedural question and not a
substantive one like the issue of cause of action. But it is
also true that a declaratory action is open to an individual
without having to demonstrate a cause of action.
In other cases a cause of action needs to be raised in the
pleadings and where the cause of action is obviously and
almost incontestably bad the court would not entertain the
matter. Otherwise a party would not be driven from the
judgement seat without having his right to be heard. In
deciding whether there is a cause of action one looks
ordinarily only at the plaint (or pleadings). The case of
The Attorney General vrs Olwoch (1972) EA 392 is
authority for this point, and has been followed in other
cases after it. This is the position which obtains in other
Although the applicant cited the section and contended that

the respondent is likely to harm the environment he has not
51
jurisdictions on this question in respect of civil actions

and even public interest law suits which the applicant
claims his own to be. In the Canadian case of Operation
Dismantle & Others vrs The Queen & Others (1983) ICF
429 the Motion sought to bar the testing of Cruise Missiles
in Canada which the plaintiff contended violated the
Canadian Charter of Rights. The court stated that beyond
the statement of claim it could not admit any further
evidence and the statement stands and falls upon the
allegations of fact contained in it, so long as they were
susceptible to constituting a scintilla of a cause of action.
The test to be applied was whether the germ of a cause of
action was alleged in the claim. The court further held that
if the statement contained sufficient allegations to raise a
justifiable issue then even the claim cannot be corrected
by amendment and there was no compliance with rules of
practice this does not render the proceedings void in which
an irregularity occurs which can be corrected by an
amendment. The Supreme Court of Nigeria in Thomas &
Others vrs Olufusoye (1987) LRC (Const) 659 defined
cause of action to:
requirements of section 20 (6) of the NEMA statute. To

this extent he is entitled to bring this action. As a public
spirited body the applicant is espousing the public interest
although I must say he has done so rather too quickly,
almost prematurely. To this extent I accept to entertain the
application which though procedurally faulty could be
cured by amendment. In any case there was no challenge
put forward by the respondents and the applicant would
be at liberty to pursue further his substantive claims by
filing amended pleadings in place of the motion field in
court. I am able to declare though not in terms of the
declaration sought that the EIAS presented by the
Respondents consultants in this project must be approved
by the Lead Agency and the National Environment
Authority. This is the distance I can go in this matter. It
has already been stated earlier that it is the view of the
Court and I restate it tat the signing of the protested
agreements are subject of the law. It is however not for
this court to stop the signing of agreements by injunction
or otherwise since signing agreement per se do not cause
environmental disasters. If an agreement is signed and it
is in contravention of any law then it can be challenged.
Any action based on it can also be challenged. Therefore
it is in the interest of the parties to it to conform to the law.
Comprise every fact (though not every piece of

evidence) which it would be necessary for the
plaintiff to prove if traversed to support his right
to the judgement of the court .. every fact which
is material to be proved to enable the plaintiff to
succeed. The words, have been defined as meaning
simply a factual situation the existence of which
entitled one person to obtain from the court a
remedy against another person and it is the subject
matter or grievance founding the action, not merely
the technical cause of action.
The declarations sought by the applicant relating to the

Parliamentary approval is unnecessary to consider since
Parliament would equally be advised and is capable of
knowing their power. Since no approval has been given
by Parliament this court cannot inquire as to whether it
will or will not grant the approval in contravention of the
law. In the circumstances the declarations sought out in
the Motion are not granted; save that this court declares
that approval of the EIAS by NEMA is required under
Section 20 of the NEMA Statute. The injunction is also
refused. This matter proceeded exparte. I am surprised why
this was the case. I must say that a party must come to the
court to be heard. In court maters epistolary proceedings
have not taken root in this country. No amount of media
action, or reaction though effective can e a substitute to
going to court to challenge ones adversary. To ignore a
court summons is itself foolhardy and places the party so
summoned in a desert. However, no costs were asked for
this action and I order none.
The Nigerian Supreme Court in that case cited the dictum

of Lord Pearson in Drummond Jackson vrs British
Medical Association (1970) IWLR 688 (C.A.) where it was
held:
Where the statement of claim discloses no cause
of action and if the court is satisfied that no
amendment however ingenuous will cure the
defect the statement of claim will be struck out
and the action dismissed. Where no question as
to the civil rights and obligations of the plaintiff
is raised ion the statement of claim for
determination the statement of claim will be struck
out and the action dismissed.
..
RICHARD O. OKUMU WENGI
Ag. JUDGE
19/04/99
I have discussed these issues because the argument raised

by counsel for the applicants the applicants claim beyond
just the ordinary private law rights litigation to the wider
issues relating to public interest law and a situation where
a party merely seeks declaratory orders relating to
compliance with the law failure of which has potential
danger for the environment.
23/04/99Kakuru for applicants

Henry Kikoyo representing the respondents
COURT: - Ruling delivered in presence of the above
parties.
I am satisfied that in the circumstances of this case the

applicant has reason to seek the intervention of this court
in so far as no approval of the environmental aspects of
the study has been brought in evidence to satisfy the
.
GODFREY NAMUNDI
DEPUTY REGISTRAR, CIVIL
52
53
IN THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC

OF SRI LANKA
S.C. Application No 884/99 (F.R)
54
In the matter of an Application Under Article 17 read with

Articles 126 of the Constitution
1.
2.
3.
4.
Tikiri Banda Bulankulama

No. 05, Kandakkulama,
Kiralogama.
Rarnayake
Mudiyanselage
Palugaswewa,
Eppawela.
5.
Sarabumi Resources (Pvt.) Ltd

41, Janadipathi Mawatha,
Colombo 01.
6.
Lanka Phosphate Limited,

No. 63, Elvitigala Mawatha,
Colombo 05.
7.
Geo-Resources Lanka (Pvt.) Limited.

No. 09, Abdul Gaffoor Mawatha,
Colombo 03.
8.
The Attorney-General,
Attorney-Generals Department,
Hulftsdorp,
Colombo 12.
Ranmenike,
Palitha Nissanka Bandara,

Palugaswewa,
Eppawela.
Dissanayake Kiribandalage Ranbanda,
Palugaswewa,
Eppawela.
Respondents
5.
Palihawadana Arachchige Kiribanda,

Palugaswewa,
Eppawela.
BEFORE
Amarasinghe, J
Wadugodapitiya, J
Gunesekara, J
6.
Dissanayake Ukkubandage Seneviratne,

Polwatta,
Ihala Siyambalawewa,
Eppawela.
COUNSEL
7.
Ven Mahamankadawala Piyaratna Thero,

Galkanda Purana Viharaya,
Eppawela.
R.K.W. Goonesekara with Ruana

Rajepakseand Asha Dhanasiri for the
Petitioners
K. Sripavan D.S.G. with B.J.
Tilakaratne, SSC and Anusha
Navaratne, S.C. for the 1 st to 3 rd, 6 th
and 8 th Respondents.
Chulani Panditharatne for the 4 th
Respondents
Petitioners
1.
The Secretary,
Ministry of Industrial Development,
No. 73/1, Galle Road,
Colombo 03.
2.
Board of Investment of Sri Lanka,

World Trade Centre,
West tower Echelon Square,
Colombo 01.
Romesh de Silva, P.C., with Harsha

Amarasekara and Sarath Caldera for
the5th and 7 th Respondents.
ARGUED ON
3.
4.
15.03.2000
16.03.2000
28.03.2000 and
30.03.2000
FINAL WRITTEN SUBMISSIONS

DECIDED ON
Geological Survey and Mines Bureau,

04, Senanayake Building,
Dehiwela.
AMERASINGHE, J.,
Central Environmental Authority,

Parisara Mawatha ,
Maligawatte New town,
Colombo 10.
55
7th April 2000

2nd June 2000
of compensation to Mahaweli settlers presently living in

the exploration area identified for the project, were
discussed with local institutions and authorities (p4)
THE B ACKGROUND
After soil surveys conducted by a team of scientists at
Kiruwalhena, whichhad been selected as a prototype site
of dry zone, high elevation laterite, the team informed the
Director of Geological Survey about some peculiar
weathered rock they had found.Early, in 1971, during the
Geological Survey of the Anuradhapura district, it was
found that what had been supposed by the scientists during
the soil surveys to be high level fossil laterite was really
an igneous carbonate apatite.The Department of Geological
Survey had thus come to discover a deposit of phosphate
rock occuring in the form of the mineral apatite at Eppawela
in the Anuradhapura district.
On the 26 th of September, 1996 the Minister of Industrial

Development reported to Cabinet on the progress made
and sought approval for certain parameters in respect of
some key issues which continued to remain unresolved.No
information was furnished to court on what these issues
were and what had been decided.We were merely informed
that Cabinet approval was received on the 02 nd of
October,1996 and that the third round of negotiations were
held from December 21 st , 1996.Thereafter, Freeport
MacMoran submitted drafts of the Mineral Investment
Agreement and other subsidiary agreements.These were
studied by the negotiatingcommittee and lawyers from the
Department of the Attorney-General on the basis of the
parameters laid down by the Cabinet and the applicable
laws.(p4)The Freeport MacMoran draft was returned to
them with amendments.Freeport MacMoran then raised
several issues regarding the interpretation of the key
parameters and also the language in the draft as amended
by the Attorney-Generals Department. (p4) Subsequently,
freeport MacMoranm met Her Excellency the President
whi thereupon directed Mr B.C. Perera (Secretary, to the
Treasury), Hon Sarath N Silva, (Attorney-General), Mr.
K.austin Perera (Secretary, Ministry of Industrial
Development), Mr Thilan Wijesinghe (chairman/DirectorGeneral, Board of Investment of Sri Lanka), and Mr
Vincent Panditha (Senior Advisor, Board of Investment of
Sri Lanka and Consultant, Ministry of Industrial
Development) (p4), to conduct on final round of
negotiations and clear any outstanding issues along with
the texts of the Mineral Investment Agreement and
subsidiary agreements.(p.4)The final round of
negotiations was held from the 28th of July, 1997 to the
04 th August 1997 and the final drafts of the Mineral
Investment Agreement and subsidiary documents were
agreed upon and initiated by the Secretary, Ministry of
Industrial Development and the representatives ofFreeport
Mac Moran and IMC Agrico.
Haying regard to the policies of the Government at that

time, it was decided in 1974 that the use of the Eppawela
deposit should be entrusted to a Divisional Development
Council. (D.D.C)
Although a trial order for the supply of 500 tons was placed
by the Ministry of Industries andScientific Affairs and the
order was fulfilled within about four months, no further
orders for phosphate rock were placed.The D.D.C. project
was later taken over by Lanka Phosphate Ltd., a company
fully owned by Government, which was set up by the
Ministry of Industries.
In December 1992, a notice calling for proposals to
establish a Joint Venture for the manufacture of Phosphate
fertilizer using the apatite deposit at Eppawela was
published in local and foreign newspapers.Six proposals
were received .A committee appointed by the Cabinet, after
the having considered an evaluation report decided with
the approval of the Cabinet to undertake negotiations with
Freeport MacMoran Resoiurce Partners of
USA.(hereinafter referred to as Freeport MacMoran) One
of the factors that appeared to have been in favour of
freeport MacMoran was that it was one of the leading
phosphate fertilizer firms in the world.(P4 page 2) Another
was that IMCO Agrico (Sic.) and affiliate of M.S. freeport
MacMoran, had done studies and worked on the utilization
of this particular phosphate deposit several years ago and
therefore, they had the benefit of that research.(p4 page
2)
On the 17 th of May 1998 the President of the National

Academy of Sciences , Prof. V.K. Samaranayake wrote to
the President of Sri Lanka (with copies to the Minister of
Science Technology and Human Resource Development
and the Minister of Industrial Development (p10) stating
that the council of the Academy was of the view that the
proposed project in its present form as some of the vital
data relating to the actual size and quality of the mineral
deposit have not been adequately surveyed and
established.This shortcoming had also been highlighted
in the Report of May, 1996 of the Presidential Committee
appointed by Your Excellency.The feasibility of the Project
can be comprehensively appraised only when this vital data
are available.Accordingly, we respectfully request Your
Excellencyto defer the grant of approval for the Project
until a comprehensive appraisal is undertaken.
The negotiation committee was assisted by representatives

from various Government Departments and Ministries and
by a team of experts.
The first round of negotiations was held from 17-22 March,
1994.Thereafter, when the present government took office,
the Minister of Industrial Development, in a Memorandum
dated the 28 th of January, 1995, reported to Cabinet the
progress made and sought and obtained the approval of
the Cabinet to continue with the negotiations.A second
round of negotiations were held from 27-31 march,
1995.Major issues relating to the availability of land for
a plant at Trincomalee, and the resettlements and payment
56
In the same letter, the President of the national Academy

of Sciences stated that the Council had also examined other
related issues and that the recommendations, including
options, were elaborated in the report of the National
Academy of Sciences which was forwarded to the President
of Sri Lanka.
the territories of Sri Lanka constitutea part of the national

wealth of Sri Lanka.
Learned counsel for the 5th and 7th respondents with whom,
the Deputy Solicitor-General associated himself, submitted
that the Government, and not this court, is the trustee of
the natural resources of Sri Lanka.thus , as long as the
Government acts correctly the court will not put itself I
the shoes of the Government.That is to say the court may
or may not agree with the final outcome.However, if the
Government has correctly acted as trustee the court will
not interfere.It was further submitted that the petitions
should be dismissed in limine, since the petitions had
invoked the fundamentalrights jurisdiction of the court in
a matter that was either a public interest litigation or
breach of trust litigation.
In a newspaper article entitled Exploitation of Eppawela

rock phosphate depost , (p.10 (a) Prof. V.K.Samaranayake
stated as follows
the national Academy of Sciences is the highest multidisciplinary scientific organisation in Sri Lanka.Its mandate
includes, to take cognizance and report on issues in which
scientific and technological considerations are paramount
to the national interestand too advise on the management
and rational utilization of the natural resources of the island
so as to ensure optimal productivity, consistent with
continued use of the biosphere on a long term basis taking
into account the repercussions of using a particular resource
on other resources and the environment as a whole and to
help in making use of resources of the country innational
development.
I am unable to accept those submissions

The Constitution declares that sovereignty is in the people
andis inalienable. (Article 3)Being a representative
democracy, the powers of te people are exercised through
persons who are for the time being entrusted with certain
functions.The constitutions states that the legislative power
of the people shall be exercised by Parliament, the
executive power oif the People shall be exercised by the
President of Sri Lanka and the judicial power of the people
shall be exercised, inter ala, through the courts created
and established by the constitution. Article 4)Although
learned counsel for the petitioners., citing M.C. Mehta v.
Kamal Natha(1977) ISCC 388 agreed with learned counsel
for the 5th and 7th respondents that the natural resources of
the people were held in trust for them by the Government,
he did not subscribe to the view that the court had no role
to play.In any even, he challenged the respondents claim
that the government had in fact acted properly in
discharging it role as trustee.
Prof. Samaranayake went on to say that,

Accordingly, the Academy studied the proposal
from all angles and submitted its report to Her
Excellency the President in May 1998.The project
proposal was examined in relation to (a) the deposit
and proposed rate of exploitation; (b) proposal to
manufacture
fertilizer
locally;
(c)
environmentalconsiderations; and (d) economic
and social considerations.
On the 23 rd of July, 1999 a committee of twelve scientists

of the National Science Foundation submitted a report
under the title The Optimal use of Eppawela rock
phosphate in Sri Lankanagriculture (p12)Having observed
that the proposal of the U.S. Mining company in the view
of many of the ProfessionalAssociations in the country.E.g.
the Institutionof Engineers, Institute of Chemistry, National
Academy of Sciences and most individual scientists and
engineers is highly disadvantageous to the country and with
highly adverse environmental impacts, the committee
examined various proposals made and suggested options
which in its view are more advantageous to the country.
On the 8th of October, 199 the seven Petitioners filed an
application in this court under Article 17 read 126 of the
constitution.The court (Fernando, Wadugodapitiya and
Gunesekara, JJ.) on the 27th of October 1999 granted the
seven petitioners leave to proceed with their application
for declarations and relief arising from the alleged
infringement of their fundamental rights guaranteed by
Articles 12 (1), 14(1) (g), and 14 (1) (h) of the Constitution.
The organs os State are guardians to whom the people have

committed the care and preservation of the resources of
the people.This accords not only with the scheme of
government set out in the constitution but also with the
high and enlightened conceptions of the duties of our rulers,
in the efficient management of resources in the process of
development, which the Mahavamsa,68.8-13 sets forth in
the following words.
Having thus reflected, the king thus addressed his officers.
In my Kingdom are many paddy fields cultivated by means
of rain water, but few indeed are those which are cultivated
by perennial streams and great tanks.
By rocks, andby many thick forests, by grate marshes is
the land covered.
JURISDICTION
In such a country, let not even a small quantity of water
obtained by rain, go to the sea, without benefitting man.
In the proposed agreement, it is acknowledged in the

Introduction that The mineral resources contained in
57
Paddy fields should be formed in every place, excluding

those only that produce gems, gold, and otherprecious
things.
is an extremely complex one as, for instance, the debates

on various matters between H.W. Codarington and Julius
de Lanerolle showed.(see Journal of the Royal Asiatic
society (Ceylon Branch), Vol. XXXIV, p, 199 s.q.p. 226
sq.)For the present limited purpose, what I do wish to point
out is that there is justification in looking at the concept of
tenture, not as a thing in itself, but rather a way of thinking
about rights and usages about land.H.W. Codrington,
Ancient Land Tenure and Revenue on Ceylon, pp. 5-6
refers to the fact that the King was bhuatpi or bhupala
lor of the earth, protector of the earth Lordadhipathi
of the fields if all .He quotes Moreland wrote as
follows.Traditionally there were two parties, and only two,
to be taken into account; these parties were the ruler and
the subject, and if a subject occupied land, he was required
to pay a share of its gross produce to the ruler in return for
the protection he was entitled to receive.It will be observed
that under this system the question of ownership of land
does not arise; the system is in fact antecedent to that
process of disentangling the conception of private right
from political allegiance which has made so much progress
during the last century, but is not even now fully
accomplished .. Later, grantees, in general, it seems
were given the enjoyment of lands for services rendered
on to be rendered in consideration of their holdings, or
lands weregiven for pious and public purposes unrelated
to any return.For their part grantees were under and
obligation to make proper use of the lands consistent with
the grant or, in default, suffer their loss or incur penalties.
It does not become persons in our situation to live enjoying

our own ease, and unmindful of the people ...
Translation by Mudaliyar L. de Zoysa, Journal of the Royal
Asiatice Society (C.B), vol. III No IX, (The emphasis is
mine)
In the case concerning the Gabcikovo-Nagimaros project
(Hungary/Slovakia)- the Danube case 1997 General List
no 92, 25 September, 1997 before the International court
of Justice, the Vice-president of the Court, Judge C.G.
Weeramantry, referred at length to the ancient irrigation
works of Sri Lanka which, he said embodied the concept
of development par excellence. He said:
Just as development was the aim of this system,
it was accompanied by a systematic philosophy
of conservation dating back to at least the third
century B.C. .The ancient chronicles record that
when the King (Devanampiya Tissa) 247-207 B.C.
was on a hunting trip (around 223 B.C.) the Arahat
Mahinda, son of the Emperor Asoka of India,
preachedto him a sermon which converted the
King.Here are excerpts from that sermon: O great
King, the birds of the air and the veasts have as
equal a right to live and move about in any part
of the land as thou.The land belongs to the people
and a;; ;living beings;thou art only the guardian
of it .The juxtaposition in thjis heritage of the
concepts of developments and environmental
protection invites comment immediately from
these familiar with it.Anyone interested in the
human futures wouldreceive the connection
between the two concepts and the manner of their
reconciliation.Not merely from the legal
perspective does this become apparent, but even
from the approaches of other disciplines.This
Arthur C. Clarke, the noted futurist, with the vision
that has enabled him to bring high science to the
service of humanity, put his finger on the precise
legal problem we are considering when he
observed:the small Indian Ocean island .
Provides textbook examples of many modern
dilemmas: development versus environment, and
proceeds immediately to recapitulate the famous
sermon, already referred to, relating to the
trusteeship of land, observing , For as King
Devanampiya Tissa was told three centuries before
the birth of Christ, we are its guardians not its
owners. The task of the law is to convert such
wisdom into practical terms.
The public trust doctrine, relied upon by learned counselon

both sides, since the decision in Illionis Central R. Co. V.
Illinois, 146U.S. 387 at 452, 135 S.Ct. 110 at 118 (1892),
commencing with a recognition of public rights in
navigation and fishing in and commerce over certain
waters, has been extended in the United States on a case
by case basis.Nevertheless, in my view, it is comparatively
restrictive in scope and I should prefer to continue to look
at our resources and the environment as our anscestors did,
and our contemporaries do, recognizing a shared
responsibility.
The Constitution today recognizes duties both on the part
of parliament and the President and the Cabinet of
Ministers as well as duties on the part of persons,
including juristic persons like the 5th and 7 th respondents.
Article 27(14) states that The State shall protect, preserve
and improve the environment for the benefit of the
community.Article 28(f) states that the exercise and
enjoyment of rights and freedoms (such as the 5 th and 7 th
respondents claimed in learned counsels submissions of
their behalf to protection under Article 12 of the
Constitution relating to equal protection of the law). Is
inseparable from the performance of duties and obligations,
and accordingly it is the duty every person is Sri Lanka to
protect nature and conserve its riches.
I have not been able to find the sermon referred to.However,

Tissa, who depended on the support of Emperor Asoka,
and even added to his name thetitle of his patron,
Devanampiya, would have had little or no hesitation in
accepting the advice of Asokas emissary, Mahinda.The
subject of land tenure in Sri Lanka, including the status,
claims, and rights of the Monrach with regard to the soil,
The loose use oflegal terms like trust and trustee is

apt. as this case has shown.To lead to fallacious
58
reasoning.Any question of the legal ownershipof the

natural resources of the State being vested in the Executive
to be held or used for the benefit of the people in terms of
the Constitution is at least arguable.The Executive does
have a significant role in resources has nor been placed
exclusively in the hands of the Executive.The exercise of
Executive power is subject to judicial review.Moreover,
Parliament may, as it has done on many occasions, legislate
on matters concerning natural resources, and the Courts
have the task of interpreting such legislation in giving effect
to the will of the people as expressed by Parliament.
MAY THE SEVEN PETITIONERS JOIN IN A SINGLE

APPLICATION ?
Learned counsel for the 5 th and7 th respondents submitted
that several petitioners cannot join in one application in
terms of Article 126 of the Constitution.Admittedly,
Article 126(2) refers to any person,such person and
he may himself.However, the court has not construed
these phrases so as to preclude the joining of several
petitioners where their individual rights are based on the
same alleged circumstances; in fact , the practice of the
court points in the other directions. I therefore hold that
the petitionersare not non-suited on the ground of
misjoinder.
In any event, the issue before me is not the question whether

this court or the Government is a trustee, and whether
there has been a breach of trust, but whether in the
circumstances of the instant case the rights of the
Petitioners guaranteed by Articles 12(1), 14(1) (g) and
14(1) (h) of the Constitution have been violated. And in
that regard the jurisdiction of this Court is put beyond any
doubt by Article 126(1) of the Constitution which states,
among other things, that the Supreme Court has sole and
exclusive jurisdiction to hear and determine any question
relating to the infringement or imminent infringement by
executive or administrative action of any fundamental right
.The court is neither assuming a role as trustee nor
usurping the powers of any other organ of Government.It
is discharging a duty which has in the clearest terms been
entrusted to this court, and this court alone, by Article
126(1) of the constitution.
IS THE APPLICATION OUT OF TIME?

The respondents submitted that the application must be
rejected, since it has been made out of time.However, no
indication was given by the respondents of the date from
which the period of one month specified by Article 126(2)
is to be reckoned.The respondents at the same time
maintain that there can be no complaint of an infringement
or imminent infringement of rights :unless and until the
Development Pant is in place, for it is that document
which would show what rights, if any, have been or are
about to be infringed.If there has been no infringement or
imminent infringementit seems to me that the respondents
are entitled to call for the dismissal of the petition on the
ground that the petitioners have failed to establish their
case.It cannot, however, be maintained that the petition is
too late, unless it is conceded that the case was ripe or
mature for hearing.The petition cannot be premature and
too late at the same time, for the latter position assumes
that although the matter was ripe or mature for
consideration, the petitioner failed to act within the
prescribed time.A substantial part of the respondents case
was based on the submission that the petitioners case was
based on the submissionthat the petitioners case was
premature and conjectural.I shalldeal with the
respondents submissions in that regard later on.But for
the present, in dealing with the threshold question of
whether the petition is out of time, what I have already
stated and what I shall state in the next paragraph, should,
I think, be sufficient to meet the submission of the
respondents.
Learned counsel for the 5th and 7 th respondents submitted

that, being an alleged public interest litigation matter, it
should not be entertained under provisions of the
constitution and should be rejected.I must confess surprise,
for the question of public interest litigation really
involves questions of Standingand whether there is a certain
kind of recognized cause of action.The court is concerned
in the instant case with the complaints of individual
petitioners.On the question of standing, in my view,
thepetitioners, as individual citizens, have a constitutional
right given by Article 17 read with Article 12 and 14 and
Article 126 to be before this court.They are not disqualified
because it so happens that theirrights are linked to the
collective rights of the citizenry of Sri Lanka rights they
share with the people of Sri Lanka.Moreover, in the
circumstances of the instant case, such collective rights
provide the context in which the alleged infringement or
imminent infringement of the petitioners fundamental;
rights ought to be considered.It is in that connection that
the confident expectation (trust) that the Executive will
act in accordance with the law and accountably, in the best
interests of the people of Sri Lanka, including the
petitioners, and future generations of Sri Lanka, becomes
relevant.
I addition to pointing out the inconsistent positions of the

respondents on the question under consideration, namely,
whether the petition was out of time, the petitioners
explained that there was considerable uncertainty about
the status of the project in question, with inconsistent
signals being given by the Government from time to time
on that matter, both in response to public protests, and
59
critical observations from scientists, including those of the

National Science Foundation in their report to the Minister
of Science and Technology in July 1999.The Minister had
asked the National Science Foundation for advice, and
having regard to the observations made by the Foundation,
it was not unreasonably expected that the Government
would not proceed with the project.There was such
uncertainty about the matter, that it might have been
premature for the petitioners to come into court
earlier.However, when a newspaper report (Document p13)
dated the 26 th ofSeptember 199, announced that the
proposed agreement relating to the project, which had been
initialed in 1997, following negotiationsthat had gone on
since 1994, was expected to be signed within two months,
the petitioners filed their petition on 08 October, 1999.The
impending or threatening danger of the violation of the
petitioners rights reached a sufficient fullness on the 26th
of September, 1994.
in the Eppawela area.The sixth petitioner is a teacher and

the owner of an extent of coconutland in the Eppawela
area.The first to sixth petitioners state that they are in
danger of losing the whole or some portion of their lands
and their means of livelihood if the proposed mining project
is implemented.The seventh petitioner is the Viharadhipathi
of the Galkanda Purana Viharaya where he has resided for
over 35 years.He states that the Viharaya and the paddy
lands that sustain it are in danger of being destroyed if the
proposed mining project is implemented.The petitioners
complain of an imminent infringement of their fundamental
rights guaranteed by Articles 14(1) (g) and 14(1) (h).
THE AREA AFFECTED

The Petitioners state that the initial exploration are will
be 56 square kilometers with a ten kilometer buffer zone
on each side, bringing to about 800 square kilometers the
area potentially affected.They state that about 2,600
families or 12,000 persons, including themselves, are likely
to be permanently displaced from their homes and lands.
In the circumstances, I hold that the application was filed

in time within the meaning of Article 126 (2) of the
constitution.
LEAVE TO PROCEED WAS FOR INFRINGEMENT

IMMINENT INFRINGEMENT
There are only seven persons who have filed this

application; but it must now become clearer why I said
that their claims were linked to the collective rights of
others and that the alleged infringement of the petitioners
individual rights need to be viewed in the context of the
rights guaranteed to them not only as falling within the
meaning of all persons as for instance within the meaning
of Article 12(1) of the constitution, but in particular as
member of the citizenry of Sri Lanka.
NOT FOR
The petitioners were granted leave to proceed for the

alleged infringement of Articles 12(1), 14(1)(g) and 14(1)
(h) and not for the alleged imminent infringement of their
rights.The fact that leave to proceed was granted for
infringement dies not preclude the court from
considering whether there was an imminent infringement
for omne mejus continetin se minus the greater contains
the less.This court, having granted leave to proceed for
the alleged infringement of a fundamental right, and
thereby being empowered by the constitution to do the
more important act of considering whether an
infringementhad taken place, cannot be debarred from
doing the less important thing of considering whether there
is an imminent infringement, for non debet cui plus licet
quod minus est non licere or and it is sometimes expressed,
cui licet quod majus no debet . quod minus est non licere
a doctrine founded on common sense, and of general
application.
The negotiating Committee appointed by the President

states in its report to the president (p4 at p.5) that the
exploration area will cover approximately 56 sq. miles
(sic.) of land situated in Eppawela in the Anuradhapura
District.And that the Buffer Zone Area will comprise of
a land area extending to 10 kilometers from the boundaries
of the exploration area.That is a misleading statement,
for in terms of the Agreement the exploration are, is far
in excess of 56 sq. miles.Indeed, as we shall see, the
Presidents committee accepts the fact that the exploration
area was not absolutely limited to 56 sq. miles: It was
contractually elastic and extendable.
I agree with learned counsel for the respondents that there
is an yet no Agreement Stricto sensu Article 2.1 of the
proposed Mineral Investment Agreement, sometimes
hereinafter referred to for the sake of convenience as the
Agreement describing the basic rights of the company,
states,inter alia as follows:without limitation on the other
rights conferred on the company by this Agreement, the
Company shall have, and the Government hereby grants
to the company,subject to the other terms and conditions
specified in this Agreement, the sole and exclusive right
(a) to search for and explore for phosphate and other
minerals in the Exploration Area . (b) to conduct pilot
or test operations as appropriate at any location within the
THE ALLEGED IMMINENT VIOLATION OF ARTICLES

14(1) ( G) AND 14(1) ( H) OF THE CONSTITUTION
Article 14(1)(g) of the constitution states that every citizen
is entitled to the freedom to engage by himself or in
association with others in any lawful occupation,
profession, trade, business or enterprise.Article 14(1) (h)
states that every citizen is entitled to the freedom of
movement and of choosing his residence within Sri
Lanka.The petitioners are citizens of Sri Lanka and
residents of the area called Eppawela in the Anuradhapura
District in the North Central Province.The first to fifth
petitioners are land owners and/or paddy and dairy farmers
60
contract Area (without limiting the companys option of

conducting such pilot r test operations entirely or partially
at other locations):(c) to develop and mine under Mining
Licences any phosphate deposit (including phosphate
minerals and Associated Minerals) found in the Exploration
Area .
connection with the manufacture of products but does not

include the smeltinh and refining of metals.The verb
process has a corresponding meaning..
Thus, in terms of the Agreement, the activities falling
within the definition of Exploration, may take place, not
only within the 56 sq. kms., not only within the
Exploration Area, but also within the Processing Area
which even includes Trincomalee.In fact, the report of the
Presidents Committee states at p.6 that the Processing
Area will be Trincomalee where the processing plant, warehouse, dock, terminal and shipping are located.
Article 1 of the Agreement defines Exploration Area as

that certain area of land which forms part of the contract
Area and which initially covers approximately 56 sq.
kms.Of land and is set forth and described as the
Exploration Area on Annexes.B-1and C-1 hereto in
respect of which Exploration Licences have been issued
under the Act to Lanka Phosphate and/or Geo Resources
Lanka (Pvt.) Ltd as such area may be reduced or extended
as
specifically
provided
for
in
this
Agreement.Exploration is defined in the Agreement as
the search for apatite and other phosphate minerals using
geological, geophysical and geo-chemical methods and by
bore holes, test pits, trenches, surface or underground
headings, drifts or tunnels in order to locate the presence
of economic apatite or other phosphate mineral deposits
and to find out their nature, shape and grade,, and this term
includes Advanced Explorationin terms of the Mining
(Licensing) Regulations. No. 1 of 1993.The verb explore
has a corresponding meaning.
It might be noted that in terms of Article 2.5, if the

Processing Area identified at the time of the signing of the
Agreement was found to be unsuitable after the feasibility
study, the Government pledges to use its best efforts to
locate other lands that ate suitable.
Article 2.4 of the Mineral Investment Agreement states as
following
Notwithstanding the existence of this Agreement
and the fact that the company will control a
significant area of land for the exploration for and
possible development of phosphate mineral
deposits as a result of this Agreement, the company
shall remain eligible to apply for and obtain
Exploration and Mining Licences on lands outside
the Exploration Area.In the event the Company
does obtain Exploration and /or Mining Licences
covering lands within the Buffer Area such
lands shall be added to the Exploration Areaand
treated in all respects as part of the Exploration
Area and (and Mining Area, if a Development Plan
is approved) and as licences which are subject to
the provisions of this Agreement.
The various activities falling within the definition of

Exploration is, in terms of the Agreement, not confined
to an area of 56 sq. kms.That, in terms of the definition, is
the area covered initially, but one that may be extended
as specifically provided for in this Agreement.It is stated
in Article2.1 of the Agreement to be a basic right of the
Company to conductpilot or test operations as appropriate
at any location within the contract Area without limiting
the companys option withinthe contract Area test
operations entirely or partially at other locations.So,
Exploration may extend to the Contract Area.The
Agreement defines Contract Area to mean the lands
included within the Exploration Area and the processing
Area as included within the Exploration Area and the
Processing Area as described in Annexes B-1 and B-2
hereto and depicted on the maps set forth as Annexes C1 and C-2 hereto, within which the activities of the
enterprises are to take place, as from time to time reduced
or
extendedin
accordance
with
this
Agreement.Processing Area is defined in the Agreement
to mean that certain area of land which dorms part of the
Contract Area and which is set forth and described as the
Processing Areaon annexes B-2 and C-2 hereto , as
such area may be amended, revised or replaced on
accordance with the provisions of this Agreement, which
area may be used for Processing, shipping, docking,
terminalling, storage, stockpiling and all other related
activities and operations.Processing is defined in the
Agreement as the crushing, benefication, concentration
or other treatment ofphosphate minerals and Associated
Minerals by physical, chemical, or other process in
The report by the Presidents Committee states: The

company will have a right to extend their activities into
the buffer zone aswell, if found necessary.There is no
definition in the Agreement of Buffer Zone, however,
the report of the Presidents Committee states at p6 that
Buffer Zone Area will comprise a land area extending
to 10 kilometers from the boundaries of the exploration
area.The Company will have a right to extend their
exploration activities into the buffer zone as well, if found
necessary.Indeed, (1) since the Exploration Area in
terms of the Agreement, as we have seen, extends to the
Processing Area, and (2) since in terms of Article 2.1 of
the Agreement it is acknowledged that the Company shall
have the basic right not only to conduct pilot or test
operations at any location within the Contract Area but
without limiting the Companys option of conducting such
pilot or test operations entirely or partially at other
locations, the area of operation even at the Exploration
stage is very vast indeed and extendable, in terms of the
Agreement, in the Companys option.Reference is made
to the reduction or extension of exploration or Processing
Areas, however, reduction in terms of Article 6.3 is
61
In his affidavit, the 1st respondent states, 4. (a) The apatite

deposits were discovered in 1971 and part of the deposit
is to the North of the Jaya Ganga, which consist of Crown
lands (sic.)Only; (b) the area to the south of Jaya Ganga
has been excluded from the Mahaweli settlement
Schemeand reserved for the apatite/Phosphate Project in
view of the said discovery in 1971.Accordingly there are
no legal settlements in the area This, as we shall see is
flatly contradicted by Article 17.3 of the
proposedagreement which I have quoted below.At the
hearing, he produced a map through the Deputy SolicitorGeneral. With his affidavit he submitted a Plan of the
known deposit areaprepared by the Geological Survey
Department and stated that the 7 th petitioners temple
wasnot within the known deposit area.
amatterfor the Company to decide.The Government has

no say in the matter.Regardless of maps demarcating the
Exploration wide and practically unrestricted.No
exploration may be contemplated in any area outsidethe
areas demarcated in the maps, but the terms of the
agreement made Exploration Area at least an arguable
mater.If the proposed agreement is signed, it would leave
the resolution of a dispute on that matter to be settled by
arbitration in terms of Article xx of the Agreement.
SETTLERS AND THE AFFECTED AREA

In their final written submissions on behalf of the 1st-3rd,
6th and 8th respondents, made after the oral hearing, learned
counsel submitted that During the exploration period the
inhabitants of the area will not be displaced nor their lands
will be affected.A map (Document X), prepared by the
Director of the Geological Survey and Mines Bureau was
annexed to the submissions under the caption.The area
reserved for mineral explorations up to (the)31 st July,
1999.The map is a map of Sri Lanka showing three areas
of demarcation:
1
2
3
According to the map, there do not appear to be inhabitants

on what is marked as the known Deposit Areasouth of
what is marked as the Kalawewa R.B. Main Channel,
which the Deputy Solicitor General confirmed is the Jaya
Ganga referred to by the 1 st respondent.Learned counsel,
for the 5 th and 7 th respondents and the Deputy SolicitorGeneral stated that no one was living on the reserve and
that, therefore, on the known data, there will be no
relocation.
the area of 56 sq. km reserved for the proposed

phosphate project;
areas reserved present for mineral explorations (8514
sq.km)
The areas where detail explorations have been
carried out during the past three years (1839
sq.km).Neither any complaints or damage to the
environment have been received nor any person has
been displaced due to exploration activities. (The
emphasis is mine)
However,the question as far as the 7 th petitioner and the

other petitioners are concerned is not whether their lands
were on the known deposit area, but whether they were
within the Exploration Area, including the area south of
the Jaya Ganga.Having regard to the Grid map (p6 and 5
R2), the petitioners lands are in the following squares and
fall within the exploration area:157332 (1st petitioner);
157329 (2nd petitioner);157327/156329 (4 th petitioner);
157329 (5 th petitioner); 157327/158327 (6th petitioner);
157328 (7 th Petitioner).
That map was not produced until after the conclusion of

the oral submissions.When and why was it prepared?On
the basis of Document X, the Deputy Solicitor-General
said:One could see from X that the whole of Chillaw
town has been part of the exploration area (sic).Therefore,
it is respectfully submitted that no harm will occur either
to the inhabitants of the area or to the environment during
the exploration period.In the circumstances, it is
respectfully urged that the application of the petitioner at
this moment is pre-mature.
The 1st respondent suggested that, in view of the impending

phosphate project, no settlers were located under the
Mahaweliproject in the area earmarked for the phosphate
project.However, in the map furnished to us, there are
Mahaweli Settlers within the demarcated Exploration
Areasouth of what is marked as the Kalawewa Main R.B.
Channel.Indeed, the map it seems had been prepared for
the very purpose of identifying Mahaweli Settlers , who
are obviously not, as the 1st respondent suggested, illegal
occupants of lands.The caption of the map is Phosphate
Project at Eppawela Area falling within system H of
Mahaweli Project.Another map produced by the Deputy
Solicitor-General the Buffer Area map- grid map
shows another Known
Deposit north of what is marked as the Kalawewa main
R.B Channel.When that map is read with the Phosphate
Project at Eppawela etc. Map, Mahaweli Settlers appear
to be living in that area as well.
What is the fate of Chillaw and other areas referred to in

document X?Was the agenda of the Geological Survey and
Mines Bureau made known to the people of the affected
areas?The Deputy Solicitor-General has not stated that the
people of the areas demarcated in Document X have been
made aware of the intentions of the Geological Survey and
Mines Bureau, and, in the circumstances, his submissions
that he people living within the proposed exploration areas
in document X have made no protests, and that therefore
the petitioners cannot object to exploration is unsound, for
they are not comparable situations.Ha it been publicly
announced thatexploration, as defined in the proposed
agreement, will be carried out in chillaw and other areas
shown in Document X?
Learned counsel for the 5th and 7 th respondents submitted

that there are no persons living in the Exploration Area
, and that therefore there will be no need for relocation,
62
and that no viharayas , homes or villages will be

damaged.He stated that As atpresent in terms of the known
given reserves and inferred reserves no one at all will be
relocated.Until the feasibility report is done there will be
no way at all in finding out whether in terms of this project
anybody will be relocated.The Deputy Solicitor-General
stated that the application of the petitioners was
premature, for the deposits had not been commenced.It
was only after the feasibility study that the persons affected
and extend of environmental damage could be assessed.
pay the costs of such relocations and the Government will

use its best efforts to facilitate the relocation of any
inhabitants of such land as requested by the Company in a
manner which does not create an undue financial burden
on the company or delay the Companys development and
operation of the Mining Area.The Government willalsouse
its best efforts to co-ordinate with the Mahaweli Authority
and any other Government authority having jurisdiction
over such lands in order to implement such relocations in
an orderly and efficient manner, to minimize or eliminate
the settlement within this area, and to cause the removalat
minimal cost to the Company of squatters having no legal
or possessory rights.In connection with the foregoing, the
Government shall use all reasonable efforts to minimize
or eliminate the settlement within this area of new
inhabitants during the term of this Agreement.
From the point of view of imminent infringement as

distinguished from infringement their submissions are not
supported by the evidence provided by the maps submitted
to us especially when read with the definition and flexible
description of exploration are in the Agreement referred
to above.
As to other parts of the Mining Area where the Company

determines that resettlement is necessary, the
Government and the Company acknowledge that only small
numbers of persons inhabit such lands.As to these other
lands where relocation is determined to be necessary by
the Company, the same relocation provisions as set forth
above will apply and the Government will utilize its best
efforts to minimize or eliminate any settlement of persons
or families on such other lands during the term of this
Agreement.
Learned counsels submissions, as well as the assertions

of the 1 st respondent in his affidavit, are also at variance
with the report of the Presidents committee.At pp. 3-4 oif
that report, attention is drawn to the fact thta during the
first round of negotiations conducted by the negotiating
committee previously appointed by the Cabinet, one of
the major issues that had to be discussed with local
institutions and authorities related to the resettlement and
payment of compensation of Mahaweli settlers presently
living in the exploration area identified for the project.The
Presidents Committee notes that Discussions have also
been held with the Mahaweli Authority of Sri Lanka and
willhelp to determine an exploration area which will least
disturb the settlements.However, where re-settlement has
to take place consequent to displacement, adequate
compensation will be paid to the settlers and the costs will
be met by the Joint Venture Company.
In the event that the Company wishes to relocate persons

in occupation or possession of private land and not within
the scope of the relocation specifically provided for above
in this section 17.3 such relocation shall be effected on
termsto be agreed between the company and the owners
of such private land.
(The emphasis is mine)
Article 17.3 of the proposed agreement acknowledgement

both the fact that there are settlers south of the Jaya Ganga
and the fact that they and other persons may be affected
by mining operations.The Article shows not only that the
petitioners and others may be affected but that if they are,
the paramount consideration will be the interests of the
company rather than those of the occupants of the affected
areas.
Apart from the Mahaweli settlers in the more recent

villages established as part of the Mahaweli Development
System H project, there are residents of numerous ancient
villages (purana gam), both in the Exploration Area and
the Buffer Zone .Admittedly, the scale of displacement will
depend on the feasibility study.That does not mean that at
the present time it can be confidently asserted, as learned
counsel for the respondents did, that no relocation will take
place, nor it can it be denied that some displacement is
likely, - c conclusion, as we have seen, that understandably
troubled the negotiatingcommittee appointed by the
Cabinet, although they seem to have been preoccupied with
the fate of the Mahaweli settlers.
17.3 the Government and the Company acknowledge

that if Mining is conducted within the portion of the
Exploration Area , located south of the Mahaweli District
Authoritys main canal which flows through the
Exploration Area, the occupants of such land ay be directly
affected.Occupied areas are indicated on the map is
attached hereto and made a part hereof as annex K.To
the extent that this area is included within the Mining Area
and constitutes part of the area to be mined under the
Companys Development Plan which is approved by the
Government in accordance with the procedures set forth
in Article VII, and the Company determines that it is
necessary to relocate such occupants in order to
accommodate Mining such area, then the company will
PETITIONERS FEARS UNFOUNDED ?

Learned counsel for the 5th and 7th respondents analysed
the Agreement and said there were five stages in the
project;(a) exploration; (b0 feasibility study;(c0
construction;9d) operating;9e) marketing.Mining, which
could cause damage, he said, is done only ar the operating
stage.There was no need to feel any apprehension at the
63
Exploration and Feasibility Study stages, which is what

the signing of the proposed Agreement should lead to.It is
only when the exploration andfeasibility study are done,
the approval of all the statutory authorities are obtained,
and the Secretary accepts the feasibility report, that the
company will be permitted to proceed to the construction
and mining phases of the project.Exploration, he said, only
means search and location of the presence of economic
apatite and other phosphate mineral deposits and to find
out their nature and grade.The Deputy Solicitor-General
expressed a similar view.
8.1)Article 9.4 states that The Enterprise facilities shall

include, among other things, the mine and related
processing facilities, thefertilizer processing plant and
associated facilities and may include port facilities, rail,
road and pipeline transportation facilities, storage facilities,
communication facilities, power supply and distribution
facilities, gypsum and other waste disposal facilities, repair
and maintenance facilities temporary or desirable in
connection with the operationof the Enterprise . The
next stage is the operating period when mining takes
place.Article 9.1 states;As the construction of the
enterprise facilities are progressively completed,the
company will commence the operation of such facilities
on the mining and processing areas and the conduct of all
other activities contemplated by the Enterprise and shall
achieve commercial production by no later than two years
following the end of the construction period, and the
company shall be authorized to continue such operations
and activities for the duration of the operating period, as
longas the company abides by its obligations under this
Agreement and Applicable Law.Operating Period is
defined in the Agreementto mean the period commencing
on the day following the end of the construction period
and continuing for so long as the Company shall continue
to conduct operations with respect to any phosphate mineral
reserve within the Exploration and/or Mining Area and,
provided the Company has not permanently abandoned or
terminated ots operations and given notice thereof to the
Secretary, for a period of not less that 25 years following
the commencement of Commercial Production, or such
longer period as the Secretary, on the written application
of the Company may approve. Finally, the product will
be sold in the market.This is dealt with in Article X.
The exploration contemplated by the respondents may,

perhaps, be of a non-intrusive nature.However, the
definition of exploration in the proposed Agreement, as
we have see,. Includes the search for certain minerals, and
their location, nature and grade, inter aliaby making
boreholes, test pits, trenches, surface or underground
headings, drifts or tunnels.Mining may have
comparatively more devastating consequences, but
exploration can scarelybe said to be so harmless as to cause
the occupants of the exploration area no reasonable
apprehension of imminent harm to their homes and lands.In
the circumstances, the petitioners can hardly be blamed
for not sharing the optimistic submission of learned counsel
for the 5 th and 7th respondents that exploration can do no
harm whatever to anyone.
The petitioners express concern not only about the harm
that may be caused at the stage of exploration, but also at
all stages of the project and by the total effect of the project
as described in the proposed agreement.Admittedly, there
is as yet no formally executed agreement.Yet, the document
may have caused reasonable apprehension leading to the
application of the petitioners, for(a) it has been initialed
after a final round of negotiations between the parties to
a proposed agreement; and (b)provides for each and every
one of the five stages of the project referred to by learned
counsel for the fifth and seventh respondents in his
analysisof the Agreement.The petitioners case is that, in
the circumstances, the totality of the proposed agreement
must be considered in deciding whether there is an
imminent infringement of their constitutional rights.
SUSTAINABLE DEVELOPMENT
In the introduction to the proposed Mineral Investment
Agreement, it is stated, The Government seeks to advance
the economic development of the people of Sri Lanka and
to that end desires to encourage and promote the rational
exploration and development of the phosphate mineral
resources of Sri Lanka. (The emphasis is mine).
Undoubtedly, the state has the right to exploit its own
resources pursuant, however, to its own environmental and
development policies. (Cf. Principle 21 of the U.N
Stockholm Declaration (1972) and Principle 2 of the U.N.
Rio De Janeiro Declaration (1992) Rational Planning
Constitutes an essential tool for recognizing any conflict
between the needs of development and the need to protect
and improve the environment.(Principle 14, Stockholm
Declaration)Human beings are at the centre of concerns
for sustainable development.They are entitledto a healthy
and productive lifein harmony with nature. (Principle 1,
Rio De Janeiro Declaration).In order to achieve sustainable
development, environmental protection shall constitute an
integral part of the development process and cannot be
considered in isolation from it.(Principle 4, Rio De Janeiro
Declaration).In my vie, the proposed agreement must be
There is nothing in the proposed agreement that supports

the view that the signing if the proposed agreement will
only result in exploration and feasbility study.It is a
comprehensive, all embracing document.
THE PROPOSED ACTIVITIES UNDER THE AGREEMENT

Following the exploration stage during which the company
will locate the presence of economic apatite or other
phosphate mineral deposits and find out their nature, shape
and grade, a study would be made to determine the
feasibility of commercially developing the phosphate
deposit or deposits identified by the Company.(Article
7.2)this is to be followed by the construction ofthe mine,
fertilizer processing plant and associated facilities.(Article
64
considered in the light of the foregoing

principles.Admittedly, the principles set out in the
Stockholm and Rio De Janeiro Declarations are not legally
buiding in the way in which and Act of our Parliament
would be.It may be regarded merely as soft law
Nevertheless, as a Member of the United Nations, they
could hardly be ignored by Sri Lanka.Moreover, they
would, in my view, be binding if they have been either
expressly enacted or become a part of the domestic law by
adoption by the superior courts of record and by the
supreme Court in particular, in their decisions.
It has been the policy of successive governments during

the past three decades that the Eppawela mineral deposit
should be put to use.In fact,Lanka Phosphate Ltd., the 6th
respondent, under a licence issued by the Geological
Survey and Mines Bureau has been mining about 40,000
metric tons of rock per annum for crushing and marketing
to enterprises making fertilizer.That modest operation, the
petitioners explain, caused them no concern.However, in
view of the escalation of the amount to be mined under
the proposed agreement to 26.1 million metric tons within
thirty years from the date of the signing of the agreement,
the petitioners fear (a) that existing supplies will be
exhaused too quickly, and (b0 that the scale of operations
within the stipulated time frame will cause serious
environmental harm that would affect their health, safety,
livelihood as well as their cultural heritage.The petitioners
do not oppose the utilization of the deposit.However, they
submit that the phosphate deposit is a non-renewable
natural resource that should be developed in a prudent and
sustainable manner in order to strike an equitable balance
between the needs of the present and future generations of
Sri Lankans.
During the hearing, learned counsel for the 5 th and 7 th

respondents, submitted that the project must go ahead;
because the people would otherwise starve.In his written
submissions he stated that as trustee of the natural
resources of the country the Government cannot sit back
and do nothing.That would be a sin of omission and would
be as such a breach of trust as ifthe Government did act
wrongly It is common ground that the phosphate has to
be developed.All the experts are agreed that the phosphate
cannot be permitted to lie underground.
While, as I must on account if its extravagance reject learned
counsels claim that people would starve if the project is
not proceeded with, it might be pointed that there seems to
be no disagreement that the phosphate deposit should be
utilized.Indeed, an hypothesis has beenadvanced that the
Eppawela deposit was not discovered in 1971, but was
known to our rulers and people for thousands of years and
shared the thought that the deposit should be utilized.The
difference between them and us is how this should be
done.The ingenuity ofthe rulers and people of Sri Lankain
times gone by, it is suggested, had created a stable and
sustainable agricultural development system harnessing the
key natural resources available within their natural habitat,
including the Eppawela deposit.The natural processes of
weathering, microbial activity and precipitation might have
released plant nutrients which were carried overland by
flowing into the reservoirs,channels and rivers as well as
permeating into the soil matrix and possibly reaching
underground aquifers.(see Ivan Amarasinghe, Eppawala;
Contribution to Nutrient Flows in the Ancient Aquatic
Ecosystems of Rajrata)
In my view, due regard should be had by the authorities

concerned to the general principle encapsulated in the
phrase sustainable development, namely that human
development and the use of natural resources must take
place in a sustainable manner.
There are many operational definitions of sustainable
development, but they have mostly been variations on the
benchmark definition of the United Nations Commission
on Environment and Development chaired by Fro Harlem
Bruntland, prime Minister of Norway, in its report in
1987..development that meets the needs of the present
without compromising the ability of future generations to
meettheir own needs.
Some of the elements encompassed by the principle of
sustainable that are of special significance to the matter
before this court are, first, the conservation of natural
resources for the benefit of future generations the
principle of inter-generational equity; second, the
exploration of natural resources in a manner which is
sustainable or prudent the principle of sustainableuse;
the integration o environmental considerations into
economic and other development plans, programmes and
projects the principle of integration of environment and
development needs.
In 1974, it was decided to use the Eppawela

depositthrougha District Development Council.The
D.D..C. was an organisation aimed at harnessing resources
at grass roots level, utilizing locally available resources
with the minimum use of foreign or imported expertise,
techniques and technology, and providing maximum
employment opportunities and the most favourable benefits
to the locality.The annual production of the Eppawela
D.D.C. projects was to be 50,000 tons, and at that rate of
extraction, it was estimated that the deposit would serve
the country for a very long time, perhaps a thousand
years.Moreover, the D.D.C. project was designed to quarry
the phosphate and not to mine it, and such quarrying
operations were to be far from the Jayanganga.
International standard setting instruments have clearly

recognized the principle of inter-generational equity.It has
been stated that humankind bears a solemn responsibility
to protect and improve the environment for present and
future generations.(Principle 1,Stockholm Declaration)
.The natural resources of the earth including the air, water,
land flora and fauna must be safeguardedfor the benefit of
present and future generations. (Principle 2, Stockholm
Declaration).The non-renewable resources of the earth
65
must be employed in such a way as to guard against their

future exhaustion and to ensure that benefits from such
employment are shared by all humankind(Principle 5,
Stockholm Declaration)The right to development must be
fulfilled so as to equitably meet developmental and
environmental needs of present and future
generations.(Principle 3,Rio De JaneiroDeclaration).The
inter-generational principle in my view, should be
regardedas axiomatic in the decision making process in
relation to matters concerning the natural resources and
the environment of Sri Lanka in general, and particularly
in the case before us.It is not something new to us, although
memories may need tobe jogged.
health and safety of the people, naturally, including the

petitioners, ensuring the viability of their occupations, and
protecting the rights of future generations of Sri Lankans.
According to the Geological Survey Department (presently
the Geological Survey and Mines Bureau), the 3rd
respondent, the Eppawela deposit is said to have a proven
reserve of 25 million metric tons and an inferred reserve
of another 35 million metric tons. However, as a Director
of the 5th respondent, Mr.Gerry L. Pigg, and a Director of
the 7th respondent, Mr.U.I De Dilva Borelessa, state in
their affidavits, the actual extent of the phosphate reserves
in Sri Lanka is not known today, and it would take
exploration to discover the new reserves which would
move the inferred reserves into the proven category. The
Secretary of the Ministry of Industrial Development, Mr.
S. Hulugalle, in his affidavit states that only 26.1 million
metric tons of rock phosphate will be mined over the entire
30 year project period and the deposit contains 25 million
metric tons proved reserve and 35 million metric tons of
inferred reserve. Therefore after the 30 year period there
would still be a substantial amount to phosphate reserve.
The Deputy Solicitor- General stated as follows: If the
Mining Licence is given in terms of the Mines and Minerals
Act No.33 of 1992, the project company will only be
entitled to mine 26.1 million metric tons for the entire 30
year period. This amount when compared with the
available resource at Eppawela is somewhat negligible.
Judge C.G. Weeramantry, in his separate opinion in the

Danube case (Hungary v. Slovakia), (supra), referred to
the imperative of balancing the needs of the present
generation with those of posterity.Judge weramantry
referred at length to the irrigation works of ancient Sri
Lanka, the Philosophy of not permitting even a drop of
water to flow into the sea without benefiting humankind,
andpointed out that sustainable development had been
already consciously practiced with much success for
several millenia in Sri Lanka.Judge Weeramantry said;
The notion of not causing harm to others and hence sic
utere tuo ut alienum non laedaswas a central notion of
Buddhism.It translated well into environmental
attitudes.Alienum in this context would be extended by
Buddhism to future generations as well, and to other
component elements of the natural order beyond man
himself, for the Buddhist concept of duty had an
enormously long reach.
How could it be asserted with any degree of confidence at

this time, when no exploration has taken place, that only a
comparatively negligible quantity of the available
deposits will be extracted so that at the end of the 30 year
project period there would remain a substantial amount
of phosphate? As Mr. Pigg and Mr.De Silva Boralessa,
quite correctly in my view, point out, until exploration,
we really do not know what the reserves are, except for
the already proven reserve of 25 million metric tons.
Contemporary law makers of Sri Lanka too have been alive

to their responsibilities to future generations.Thus, section
17 of the national Environmental Act makes it a mandatory
duty for the Central Environmental Authority to
recommend to the Minister the basic policy on the
management and conservation of the countrys natural
resources in order to obtain the optimum benefits therefrom
and to preserve the same for future generations and the
general measures through which such policy may be carried
out effectively.
The National Academy of Sciences in its report (P10)

points out that in May 1995, a committee of five scientists
and two economists appointed by the President of Sri Lanka
recommended that a more comprehensive geological
reserve evaluation be undertaken in the light of recent
research findings so that government can make a decision
on the rate of exploration of such reserves. The decision
on the rate exploration should be made taking into account
the important concerns about the use of the resources in a
manner thatfuture generations can also benefit. No such
survey has been done, although it should, for reasons I
shall presently explain, have been done before the
negotiating committee appointed by the President to
conduct the final round of negotiations recommended the
signing of the proposed agreement. The National Academy
of Sciences calls attention to the fact that if after exploration
is carried out under the proposed agreement it is found
that the inferred reserves are less than presently anticipated,
there is no provision in the proposed agreement to slow
down the exploitation rate with the result that almost all
The call for sustainable development made by the

petitioners does not mean that further development of the
Eppawela deposited must be halted.The Government is not
being asked, to use learned counsels phrase to sit back
and do nothing.
In my view , the human development paradigm needs to
be placed within the context of our finite environment.So
as to ensure the future sustainability of the mineral
resources and of the water and soil conservation ecosystems
of the Eppawela region, and of the North Central Province
and Sri Lanka in general. due account must also be taken
of our unrenewable cultural heritage. Decisions with regard
to the nature and scale of activity require the most anxious
consideration from the point of view of safeguarding the
66
.... the ineluctable conclusion in a world of

continuing phosphate demand is that society, to
extend phosphate rock reserves and reserve base
beyond the approximate 100 year depletion in date
must find additional reserves and/or reduce the
rate of growth of phosphate demand in the future.
Society must:
of the National Reserves could very well be exhausted at

the end of the 30 years. The importance of giving effect to
the recommendation of the Presidents Committee which
reported in May 1995 that a comprehensive geological
evaluation should be done so that more certain information
would be available on the quantity and quality of the
phosphate at Eppawela cannot be overstated, for on it
would depend reliable conclusions being reached on how
best in the national interest the mineral resources should
be utilized, from the point of view of the rate of extraction,
having regard to consideration of sustainable development
and the feasibility of alternatives, such as the production
of single super phosphate fertilizer to meet only local
requirements rather than producing Di-ammonium
phosphate. It is also important from the point of view of
accurately assessing the Governments contribution. In
terms of Article 2.16 of the proposed agreement Lanka
Phosphate is given a ten per cent. holding. What if the
exploration reveals a deposit that in terms of quantity and
quality exceed the current assumptions? Governments
contribution would then have been underestimated.And so,
even if the Geological Survey is to be undertaken as a part
of the proposed agreement, is it in the best interests of the
country to limit the share holding to ten per cent. at this
stage merely on the basis of a pessimistic guesstimate when
better information can be had, and ought, on so important
a matter, to be required and had before policy decisions
are taken, let alone binding contracts being entered into?
(1) increase the efficiency of use known resources

of easily minable phosphate rock; (2) discover new,
economically-minable resources; or (3) develop
the technology to economically mine the vast but
currently uneconomic resources of phosphate that
exist in the world. Otherwise, the future availability
of present cost phosphate, and the cost or
availability of world food will be compromised,
perhaps substantially.
(The emphasis is mine).

Adverting to learned counsels submission about starvation,
one might ask, should the lives of future generations of
Sri Lankans be jeopardized?
The National Science Foundation states that The
irrefutable conclusion is that the Eppawela rock phosphate
deposit should be exclusively reserved for the countrys
use for generations to come. It indicates alternative
methods to ensure the use of the deposit to meet the
fertilizer demands of the country while conserving the
reserves for the use of future generations. The Secretary
of the Ministry of Industrial Development has
misunderstood the matter in making his averments in
paragraphs 18(c) and 19(b) of his affidavit. It was no ones
case that he New Zealand proposal should have been
considered in deciding upon responsive bids to the
Governments call for tenders. What is asserted is that at
some time, in considering policy options, the Government
ought to have taken or ought to take the New Zealand
proposal into account as being more appropriate (having
regard to the inter-generational principle and
environmental considerations) in the matter of the
development of the Eppawela phosphate deposit before
adopting the course of action decided upon by the
Government as expressed in the proposed agreement.
The National Science Foundations Committee stated as

follows: Mining of rock phosphate should be done at a
controlled rate (e.g. 350,000 mt per year) so that the present
deposit could be utilized by several generations. However,
if more deposit are found, the rate of exploration could be
revised, the guideline being that the ore should last at least
200 years for use in Sri Lankas Agriculture. (The
emphasis is mine).
Let us look at he matter in the context of the optimistic
scenario predicted by the Secretary of Industrial
Development and the Deputy Solicitor-General with regard
to the quantum of deposits. Assuming that 26.1 million
metric tons will be mined within the 30 year project period,
and that the deposits will not be exhausted, is ti prudent to
enter into the proposed agreement from the point of view
of the long term, future interests of the country, having
regard to the fact that phosphate is a non-renewable
resource? The report of the National Science Foundation
(P12) points out that the Eppawela deposit is of
considerable value to Sri Lanka because phosphate deposits
are non-renewable and dwindling resources in the world
like fossil fuel, and should be wisely utilized. Citing
herring and Fantels landmark study, the National Science
Foundation points out that, on the basis of current
information, the worldwide phosphate reserves will be
exhausted in 100-150 years. Herring and Fantel state as
follows:
The Secretary of the Ministry of Industrial Development

in his affidavit stated that with the development of
technology and market conditions, a mineral deposit may
also cease to be a resources as has happened to the tin
industry in the world with the advent of plastic..
Sustainable development requires that non renewable
resources like phosphate should be depleted only at the
rate of creation of renewable substitutes. What is the known
renewable substitute for phosphate? Herring and Fantel,
as we have seen, refer to a continuing phosphate demand.
Does the first respondent assume that plants will need
bo phosphorous?
67
On that matter, Prof. O.A Illeperuma of the Department of

Chemistry, University of Peradeniya, with some asperity,
had this to say (P11): There are some wisecracks who
say that scientists will develop new plants which will grow
without phosphorous. Anyone with even a rudimentary
knowledge of science knows that phosphorous is an
essential component of our bone structure and when such
varieties of cash crops are indeed possible then we will
have humans with no bones who will probably move
around like jellyfish!...
diseases such as malaria and Japanese encephalitis. the

petitioners further state that the past record of
environmental pollution by Freeport MacMoran and IMC
Agrico (the major share holder in the 5th respondent
company) is notorious even in their own home country,
namely, the United States of America.
If in fact the optimistic views of th Secretary of Industrial

Development and the Deputy Solicitor-General are
confirmed by exploration, learned counsel for the
petitioners submitted thatit does not necessarily follow that
at the end of the thirty years after the signing of the
proposed agreement, the Government of Sri Lanka will be
in control of the mining operations. i find myself in
agreement with that submission of learned counsel for the
petitioners, for the proposed agreement defines operating
period to be a a period of not less than 25 years following
the Commercialproduction , or such longer period as the
Secretary, on the written application may approve. Article
XXX of the proposed agreement states, inter alia, that the
Agreement will continue in force until the later to occur
of the following dates: (a) the date which is 30 years
following the date of the signing of the Agreement, or (b)
the date on which the Operating Period expires. The
Company may request the extension of this Agreement on
terms to be negotiated... If the Secretary approves the
application of the company for the extension of the
Operating Period, he thereby extends the Operating Period;
there is then no need for the company to apply for the
extension of the agreement on terms to negotiated.
With regard to the gypsum as a by-product, the first

respondent in his affidavit states: The project is expected
to produce approximately 1.2 metric tons (sic.) off
phospho-gypsum per annum as a by products. He suggests
that rather than being a problem, it would be a boon for
which we should be thankful, for a part of this, he says,
could be sold to local cement manufacturers and used in
the manufacture of plier and boards. Have market studies
been done? Gypsum may pose no danger if the quantities
are manageable. The scale of operation is important if the
by-products are to be utilized without causing
environmental damage. Could the amount of gypsum
produced be absorbed by the cement manufacturers and
others having regard to the fact that, according to the
Academy of Science, there will be a million metric tons
of phospho-gypsum? The National Science Foundation
in its Executive summary states: The U.S Mining
Company proposal is not environment friendly: Mountains
of phopho-gypsum will accumulate polluting the
environment. Mr.Thilan Wijesinghe, in his letter dated
March 30, 1998 (P7), notes that 2.1 metric tons per annum
ofrock phosphate would be mined and processed.
The National Academy of Science of Sri Lanka (see below)

also makes critical comments about the past experience of
Freeport MacMoran.
The 1st respondent seems to have been confused about

the amount of rock phosphate to be mined and processed
and the amount of phospho-gypsum left behind. If, the
gypsum is not in fact absorbed in the way envisaged by
the first respondent, is it to lie somewhere? Not everyone
is willing to form opinion on grounds admittedly inaccurate
or insufficient. Prof. O.A Illeperuma stated as follows (P11)
: This may not be problem for large countries such as
USA where phopho-gypsum mountains are visible dotting
the Florida landscape, since open and barren land is
available in large countries such as the U.S.ASri Lanka,
on the other hand, is one of the most overcrowded countries
in the world where even finding a site to dump domestic
garbage has become a serious problem. The evidence
before us points to the fact that the quantity of
phopho-gypsum would grossly exceed the assimilative
capacity of the environment.
The petitioners also state that the Eppawela deposit is an

agriculturally developed area which is also the location of
many historical viharas and other places of archaeological
value. It is also the area of the Jaya Ganga/Yoda Ela scheme
which is considered to be among the greatest examples of
Sri Lankas engineering skills and forms an important part
of the irrigation network of the North Central Provision.
They allege that over 20 new and ancient irrigation tanks
and about 100 kilometres of small irrigation canals are in
danger of being destroyed. Five kilometres of the Jaya
Ganga, they say, will be affected which could adversely
affect the entire irrigation system of the North Central
Province in which it is an important link. The petitioners
further allege that a factory for the production phosphoric
acid and sulphuric acid which are highly polluting
substances will be constructed at Trincomalee using a 450
acre land next to Trincomalee Bay. The petitioners also
allege that the environmental pollution resulting from the
said project will be massive and irreversible and will render
the affected area unusable in the foreseeable future. Waste
products from the large scale mining of phosphate as
envisaged by the project include phopho-gypsum and other
behind large pits and gullies which will provide a breeding
ground for mosquitoes and lead to the spread of dangerous
In the circumstances would the gypsum end up in the sea?

The minutes of the meeting held o the 22nd of January
1998 at the CEA state as follows: Mrs Priyani Wijemanne,
GM/MPPA highlighted the possible impacts on marine
eco-systems at the Tirncomalee site and requested that
those should be carefully looked into during the
Environmental Impact Assessment Stage. She submitted
68
a report to the Chairman of issues that should be

addressed.
quality, it might be more prudent to follow the advice of

our scientists and accept the New Zealand Fertilizer
Groups proposition (estimated to cost $ 20 million US
Dollars) to produce 150,000 metric tons of single superphosphate per year to meet only local requirements even
if in the short term it may appear to give less monetary
benefits. This will preserve our ore reserves for a much
longer period, involve simpler technology, leave no
environmentally hazardous waste by-products such as a
million metric tons of phospho-gypsum, and there will be
no need for ammonia and phosphoric acid plants which
produce toxic effluent. Of course the lower grade.... single
super-phosphate would lose out on high transport cost per
unit nutrient and may leave little export demand.
Furthermore, under our free market liberal economy,
locally produced single super-phosphate may be more
expensive to our farmers than imported high phosphorous
content fertilizer such as triple super-phosphate on unit
nutrient value bases unless the local product is given fiscal
protection. The decision on what fertilizer should be
produced locally must await the results of the
comprehensive exploration phase.
I do not know what Ms. Wijemanne said in her report, but

attention is drawn, especially of the 4th respondent in
applying the National Environmental Act and the regulation
framed thereunder, ti the principles of th stockholm
Declaration: The discharge of toxic substances..... in such
quantities or concentrations as to exceed the capacity of
the environmental to render them harmless, must be halted
in order to ensure that serious or irreversible damage is to
inflicted upon eco-system.
The just struggle of the peoples of all countries against
pollution should be supported. (principle 6). States shall
take all possible steps to prevent pollution of the seas by
substances that are liable to create hazards to human health,
to harm living resources and marine life, to damage
amenities or to interfere with other legitimate uses of the
sea. (Principle 7) . It might be noted, particularly by the
4th respondent, that principle 15 of the Rio De Janeiro
Declaration marked a progressive shift from the preventive
principle recognized in Principles 6 and 7 of the Stockholm
Declaration which was predicated upon the notion that only
when pollution threatens to exceed the assimilative
capacity to render if harmless, should it be prevented from
entering the environment. Principle 15 of the Rio De janeiro
Declaration stated: In order to protect the environment,
the precautionary approach shall be widely applied by
states according to their capabilities. Where there are
threats of serious or irreversible damage, lack of full
scientific certainty shall not be used as a reason for
postponing cost-effective measures to prevent
environmental degradation. The precautionary principle
acts to revers the assumption in the Stockholm Declaration
and, in my view, ought to be acted upon by the 4th
respondent. Therefore if ever pollution is discerned,
uncertainty as to whether the assimilative capacity has been
reached should not prevent measures being insisted upon
to reduce such pollution form reaching the environment.
The report adds as follows

Mining and processing of the products as
envisagedwill be an operation of unprecedented
magnitude in Sri Lanka, and the potential
environmental impacts could be equally drastic.
At the mining site there will be severe disturbances
to the ecology of the area through, among others,
the mining operation itself, theinfrastructural
activities and the discharge of pollutants to the
atmosphere. At the processing site, the effluents
and other pollutants that will be discharged would
pose severe environmental threats unless adequate
counter measures are adopted. Although the
proposed arrangement with the prospector has
provision to the effect that the operations will be
carried out with due respect to the laws of the
country, and the National Environmental Act does
contain provisions to guard against adverse
environment impacts, we are of opinion thatfor
an operation of this magnitude additional
safeguards should be adopted. This is particularly
important as mining prospectors the world over
are notorious for creating environmental disasters,
and Freeport MacMoran is no exception. In fact,
according to media reports, Freeport MacMoran,
one of the largest fertilizer manufacturing
companies in the world, has the dubious distinction
of being also No. 1 polluter in the USA. It has
also had a poor record in Indonesia and in the
South Pacific island of New Guinea. It would also
be prudent to check on the companys credibility
pertaining to environmental matters by calling for
the relevant reports from USA, New Guinea and
Indonesia before project approval... Through study
of such reports, we would be in a better position
to insist on the incorporation of stronger and more
effective measures in the Agreement to ensure
environment safety. It should be expressly stated
in the Agreement that the mining operations and
the processing should be carried out in accordance
The National Academy of Sciences states in its report as

follows:
Assuming that the ore reserve are as high as
envisaged, and that the ore has a high content of
iron and aluminium impurities, di-ammonium
phosphate with its high phosphorous content and
also containing some nitrogen is a good value
added product for the export market. However the
high technology required will include setting up
ammonia, phosphoric acid and sulphuric acid
manufacturing plants, which together withthe
liquid processing technology involved can lead
to serious environmental hazards including the
production for high toxic waste by products and
release of toxic pollutants to water bodies and the
atmosphere.
If the economically exploitable ore reserves are not much

higher than 30 million metric tons, and 70% of this is high
69
e with the environment standards set by the

Government of Sri Lanka. The Agreement should
also specifically state the ecological restoration
of the areas affected by the mining must be carried
out by the prospector at his own cost progressively
during the period of mining operations and as
directed by the Government of Sri Lanka. The
Agreement must be explicit that failure to observe
these environmental protection measures could
result in the termination of the project. We draw
special attention to the fact that the Jaya Ganga
which is within the area to be mined has been
regraded as a wonder of the ancient world and a
cultural monument to be preserved by UNESCOs
world Heritage Convention. (D.L.O Mendis, The
Island, 14 April 1998)
Sri Lanka will remain forever wrapped in myth and

hypothesis. In fact connection, the words of D.D
Kossambi (The Culture and Civilization of Ancient India)
come to mind: To learn about the past in the light of the
present is to learn about the present in the light of the past.
Ignorance of vital facts of historical and cultural
significance on the part of persons in authority can lead to
serious blunders on current decision making process that
relate to mote that rupees and cents. The first respondent,
the secretary to the Ministry of Industrial Development,
in paragraph 13 of his affidavit states as follows: The
Southern part of the Yoda Ela has been abandoned after
the construction of Jaya Ganga in 1980s under the
Mahaweli Scheme. (The emphasis is mine). Judicial
restraint prevents me form suggesting why he might,
perhaps, have through it was called Jaya Ganga.
The petitioners assertions with regard to apprehended

harm from the proposed project also finds support in the
report of the National Science Foundation (P12) which
stated that the project in the view ofmany of the
professional Associations in the country, e.g The Institution
of Engineers, Institute of Chemistry, The National
Academy of Sciences and most individual scientists and
engineers is highly disadvantageous to the country and with
highly adverse environmental impacts.
The Kalaweva, which helped to supplement the supply of

water to Anuradhapura and the area around that great and
ancient city, was constructed by King Dhatusena (455-473
AD) and ir is ., therefore supposed, though not conclusively
established, that Dhatusena also built the jaya Ganga which
augmented the tanks at Anuradhapura and its environs such
as Tissa, Nagara and Mahadaragatta, apart form irrigating
a large area of land of about 180 square miles. (See K.M
de Silva, History of Sri Lanka, p.30; R.L Brohier, Ancient
Irrigation Works in Ceylon, Part II, pp.7-8)
The report adds:

The proposal of exploitation of the apatite mine
is beset with many problems. Mines always cause
damage to (the) environment and minimization
of such damage must be examined at length.
Further,(the) Eppawela phosphate ore is located
in an agriculturally developed system, in an area
of extreme historical importance and of
archaeological value in the proximity of
(national)monuments close to the Cultural Triangle
sites with the Sri Mahabodhi and Ruwanweli Saya.
Within the bounds of (the) mining area are many
ancient villages, which will be adversely affected.
The immediate threat to the Jaya Ganga or Yoda
Ela cannot be overlooked. If the mining of the
ore damages the jaya Ganga, it denigrates Sri
Lankan history. Jaya Ganga is an engineering
marvel that must be preserved for eternity as the
heritage of mankind just as the Taj Mahal, the
Pyramids or Ruwanweli Saya are preserved for
posterity.
The maps produced show that the Jaya Ganga passes

through the Eppawela phosphate deposit region. It was, as
Brohier says, a part of an ingenious net-work of irrigation
channels in this district... which , apart from affording
edification to future generations, are monuments of the
power and edification to future generations, are monuments
of the power and beneficicence of the ancient rulers of
Ceylon. Whether it was built by Dhatusena or not ,
according to Chapter 79.58 of Mahawamsa, Parakrambahu
I (1153-1186 AD) had the ruined canal called Jaya Ganga
restored. It branched off from Kalavapi and flowed to
Anuradhapura. It is a 54 1/2 mile long contour channel
that starts from a sluice in the bund of the Kala Wewa and
ends in the Tissa Wewa and Basawakulama tank in the
ancient city of Anuradhapura. Assuming that some people
not only do not know the basic facts of history, but might
also be ignorant of elementary geography so as not to be
able to read the maps that were produced, it might be
explained that the function of the Jaya Ganga in ancient
times appears to be twofold: to intercept the drainage fro
the land to the east and issue it to cascades of smaller village
tanks to the west , in the basin of the kala Oya; and, by
trans-basin diversion, to augment the Anuradhapura city
tanks and provide irrigation water in the adjacent Malwatu
Oya basin. Brohier states that this ancient canal, which
had again been restored in 1885-1888,
The Eppawela project,a as the petitioners, the National

Science Foundation and the National Academy of Science
point out, is in an area of historical significance. If I might
adopt the words of Martha Prickett Fernando in her
comments on another proposed project- the augmentationof
the Malala Oya basin from Mau ara, Unless development
activities in area like this project are accompanied by proper
EIA studies and (proposals for) mitigation of the (adverse
impacts on) archaeological resources that will be damaged,
vast numbers of sites-in fact, much of Sri Lankas
unrenewable cultural heritage and the raw data for all future
studies on ancient Sri Lanka- will be destroyed without
record, and an accurate understanding of life in ancient
had a gradient for the first 17 miles of only six

inches per mile... Such an ingenious memorial of
ancient irrigation skill cannot be passed over
70
without a reference to its peculiar features. It needs

to be explained that the Jaya Ganga follows the
high ground between the reservoir which serves
as its source of supply and the Tissawewa. By
this means it intercepts all the drainage between
Elagamuwa and the western watershed of the
Malwatuoya which otherwise would run to waste
and it irrigation the country below the canal by a
most perfect system of irrigation. In each of the
subsidiary valleys on its course the water is
diverted by channels into little village tanks or
chains of tanks- the tanka lower down receiving
the overflow from the tanks placed higher in each
chain.
to conduct its operations o as to minimize harm tot he

environment, protect natural resources, dispose of waste
in a manner consistent with good waste disposal practices
and in general to provide for the health and safety of its
employees and the local community and also be responsible
forhe reasonable preservation of the natural environment
within which the project company operates.The
1strespondent further stated that the Government is
empowered to suspend the operations of the Company if
is determines that severe environmental damage associated
with the companys violation of applicable law is resulting
from Companys operations which the company has failed
to remedy. Attention is drawn to the maintenance of an
Environment Restoration Escrow Account, the requirement
to furnish a Mines Restoration Bond which, he states,
would be adequate to cover any environmental damage
and to effect the necessary restoration work. In his opinion,
sincethere are adequate safeguards in the proposed
agreement to make the Company responsible to take
necessary steps to minimize and rehabilitate any damage
to the environment and local community, the 1st
respondent concludes that it is premature to form an
opinion on the nature and extent of the environmental
damage which may take place due to this project.
The scheme was so perfect that the ancient canal afforded

irrigation facilities over approximately 180 square miles
of country on the east of the Kala-Oya, between Kalawewa
and Anuradhapura. It today feeds no less than 60 villages
and to the town of Anuradhapura.
There is under such circumstances, little reason to dispute
that the Jaya-Ganga must have been of incalculable benefit
of Nuwarakalawiya in the days of the Sinhalese Kings,
inasmuch as the restoration of the work is today but too
aptly described as the grandest experiment in irrigation
ever undertaken in modern Ceylon.
The Directors of the 5th and 7th respondents stated in their

affidavits that in introduction to the agreement it is stated
as follows: (D) In the process of developing mineral
resources, the Government gives high priority to the
protection of the environment and avoidance of waste and
misuse of its resources. (F) The Company (5th Respondent)
is ready and willing to proceed in these undertakings, and
to assume the risks inherent therein in exchange for the
rights and benefits herein provided, all pursuant to the terms
and conditions set forth in the agreement. It is stated that
until the Environmental Impact Assessment and Feasibility
study are done, the concerns set out in the petition cannot
be satisfactorily addressed. The Exploration Licences
issued to the 6th and 7th respondents are subject to the
rights of the owner or occupant of the land covered by the
licence and to the provisions of the Mines and Minerals
Act and the regulations made thereunder. They state that
they would bring to bear current technology for both
phosphoric and sulphuric acid which have mitigated very
nearly all of the pollution aspects of such plants. All this
will be subject to the EIA and Feasibility Study. They
submitted the IMC Global Environmental, Health and
Safety Standards and Guidelines Manual in support of their
averment that the Board of Directors of IMC had adopted
a very specific and enforceable policy towards
environmental, health and safety policies. They state that
with the merger of MacMoran Inc. into IML-Global Inc.,
Freeport MacMoran ceased to exist. This was a part of the
consolidation occurring in the fertilizer industry at thetime
and not an attempt to hide the former Freeport MacMoran
Inc.s involvement in Sri Lanka on the projet. What troubles
the petitioners is that although Freeport MacMoran with a
bad record on pollution has ceased to exist, its spirit roams
doing important things, such as seeing the President (see
The Jaya Ganga, which the petitioners, as well as the

National Academy of Sciences and the National Science
Foundation, have drawn attention to, is not merely a water
course or transportation canal corridor, or even an
amazing technological feat, as Prof. K.M De Silva
describes it; it is also an integral part of a human-made
water and soil conservation ecosystem. ,Its preservation is
therefore not only of interest to the literati at a higher plane,
ads a matter concerning the heritage of humankind that
must be preserved, but also, at the more mundane level of
the petitioners and thousands of others like them who
depend on the continued and efficient functioning of that
ecosystem for the pursuit of their occupations and indeed
for sustaining their very lives, matter of grave and
immediate personal concern.
The respondents and their learned counsel submit that
environmental concerns have been sufficiently addressed
in the proposed agreement.
The 1st respondent in his affidavit stated that exploration
and mining licences cannot be issued in respect of
archaeological reserves. Plants for the production of
phosphoric acid and sulphuric acid cannot be constructed
before compliance with the Environmental Act. If and when
the Agreement is entered into, the Project Company is
required to carry out exploration and feasibility studies
after which the project is required to submit itself to the
EIA process before mining is commence. A detailed Mine
Restoration Plan and a Mine Restoration Bond are required.
Moreover the company is required to comply with
requirements of the Mines and Mineral Act, the National
Environmental Act and the Mahaweli Authority Act and
71
and the local community. The company shall be

responsible for reasonable preservation of the
natural environment within which the company
operates and for taking no acts without
Government approval which may block or limit
the further development of the resources outside
the mining and processing areas....
P4) and initialling the final draft of the proposed agreement.

While liabilities are placed on Sarabhumi, a small local
company, whereas the decision to accept the tender was
based on the size and capacity of the multi-national giant
Freeport MacMoran.
Learned counsel for the respondents submitted that in terms
of Article VII of the proposed agreement, there has to be a
feasibility study and a report thereon. The report must have
a section reporting the results of environmental impacts
studies as described in Annex E to the Agreement. The
section of the report will be prepared by an appropriately
qualified internationally recognized independent
consulting firm approved by the Government. The study
must meet the requirements of Article 25. Article 25.2
provided as follows:
Learned counsel for the respondents submitted that until

the feasibility study is done and the development plan is
prepared, there is no way of finding out the location of the
mine and method of mining and whether in terms of the
project any body will be relocated. In terms of the
agreement, after the preparation and submission of the
feasibility study, if the company decides to proceed with
construction, it must submit a development plan with its
application for construction to the Secretary, who may
withhold approval for proceeding with the project.
The Company shall include in the Feasibility

Study an environmental study in relation to all
enterprise activities in accordant with Applicable
Law, and shall also identify and analyze as part
of the Feasibility Study the potential impact of
thoperations on land, water, air, biological
resources and social, economic, culture and public
health. The environmental study will also outline
measures which the Company intends to use to
mitigate adverse environmental impacts of the
Enterprise (including without limitation disposal
of overburden and tailings and control of
phosphate and fluorine emissions) and for restoring
and rehabilitating the Contract Area and any
project Areas at the termination of this Agreement.
The Feasibility Study shall provide an estimate
of the cost of such restoration and rehabilitation.
The Feasibility Study shall also include procedures
and schedules relating to the management,
monitoring, progressive control, corrective
measures and the rehabilitation and restoration
of all Contract Areas and Project Areas in relation
to all adverse effects on the environment as are
identifies in the Feasibility Study. The Study will
also provide an estimate of the cost of such
activities.
In terms of Article 7.7 if and only if the Secretary

determines that implementation of the Development Plan
together with any modification thereof which may be
reflected in the Companys application to construct and
operate: (a) will not result in efficient development of the
mineral resource, (b) is likely to result in disproportionately
and unreasonably damaging the surrounding Environment,
(c) is likely to unreasonably limit the further development
potential of the mineral resources within the Mining Area,
or (d) is likely to have a material adverse effect on the sociopolitical stability in the area which is not offset by the
potential benefits of the project or by mitigating measures
incorporated into the Development Plan. The decision shall
not be unreasonably delayed and, in light of significant
expenditure of time, effort and money which will have been
undertaken by the Company, approval shall be granted in
the absence of significant and overriding justification. The
Article goes on to state that if the Secretary has any
objections or suggestions, they should be communicated to
the company, and in the event of any mutually acceptable
resolution under Article XX as to whether the Secretary
has substantial cause for withholding approval of the
Feasibility Study Report, Development Plan and application
to construct and operate, and if substantial cause is
determined to have not existed, the Secretary shall promptly
issue his (her) approval of such Report, Plan and
application... (The emphasis is mine)
Article 25.1 provide as follows:

The Company shall in relation to all matters
connected with the Enterprise comply with the
Mines and Mineral Act, No. 33 of 1992, the
National Environmental Act, No.47 of 1980 (as
amended by Environmental Act Np. 56 of 1988,
the Mahaweli Authority of Sri Lanka Act No.23
of 1979, the Regulations made thereunder and all
other Applicable Law and generally prevailing
standards for mining operations. Without in any
way derogating from the effect of the above
mentioned Applicable Law and mining standards,
the company shall conduct all its operations under
this Agreement so as to minimize harm to the
environment (including but not limited to
minimizing pollution and harmful emissions), to
protect natural resources against unnecessary
damage, to dispose of waste in a manner consistent
with good waste disposal practices, and in general
to provide for the health and safety of its employees
Learned counsel for the 5th and 7th respondents submitted

that if the Secretary wrongfully approved the feasibility
study, it is only at that stage, if at all persons will be able
to challenge matters in Court. How would the petitioners
know after the Feasibility Study or development Plan that
they are likely to be affected, for in terms of Article 7.9,
subject to the provisions of Article 5.5, the Feasibility Study
and Development Plan are to be treated as confidential.
The Government may in term of Article 5.5 disclose data
and information which the Government determines in good
faith is necessary to disclose to third parties in order to
protect the national interests of Sri Lanka; but what is the
guarantee that the Government will release the Feasibility
72
In addition to any other condition that may be

prescribed under this Act, the Minister of the
Ministers...ma, in granting approval for a licence
under subsection (1), lay down such further
conditions, as may be determined by such Minister
or Minister. Where approval is granted subject to
any further conditions, the Bureau shall cause such
conditions to be specified in the licence.
Study and Development Plan when they ate available? The

petitioners and other persons who may be affected will
probably be on better informed than they were at the time
of making this application. In my view, the petitioners
decided wisely in coming before the court when they did.
Moreover, who may seek judicial review if damage if
caused cultural monument or the cultural monument or
cultural heritage landscape of Jaya- Ganga? Further, in my
view, the words emphasised are so vague as to confer a
practically unlimited discretion on the Secretary. They are
so broadly framed so as to make judicial review very
difficult indeed. In any event, what is the remedy available
to anyone, if the Secretarys decision is pursuant to an
arbitral award?
At the present time, when there has been no Feasibility

Study and no Development Plan, and,moreover,when there
is no guarantee that such study and plan will ever be made
known to them, how could the petitioners feel assured that
their individual and collective rights will be protected?
There may be conditions that may be prescribed under
section (30) 2 of the Mines and Minerals Act to safeguard
their interests and the interests of the people of Sri Lanka,
and indeed of humankind. But how is this possible without
a proper evaluation of the project? A report from an
appropriately qualified, internally recognized
independent environmental firm selected by the company
and approved by the Government, is of little or no use to
the petitioners and concerned members of the public,
having regard to the provisions in the proposed agreement
regarding confidentiality.
Learned counsel for the respondents stated that, since the

proposed agreement expressly provides for compliance by
the Company with Applicable Law, including the Mines
and Minerals Act and the National Environmental Law and
the regulations made thereunder, and since the company
will be subject to the stringent requirements of the
licences issued for exploration and mining, the fears of
the petitioners are unfounded and conjectural.Section
30 (1) of the Mines and Mineral Act states that no licence
shall be issued to any person to explore for or mine any
minerals upon, among other places, any land situated
within such distance of a lake, stream or tank or bund within
the meaning of the subject of lands; any land situated
within such distance of catchment area within the meaning
of the Crown Lands Ordinance (chapter 454) as maybe
prescribed without the approval of the Minister and the
Minister in charge of the subject of Lands. Section 31 of
the Mines and Minerals Act provides that no licence shall
be issued to any person to explore for, or mine any mineral
upon (a) an land situated within such distance of any
ancient monument situated on state land or any protected
monument, as is prescribed under section 24 of the
Antiquities Ordinance (Chapter 188); and (b) any land
declared by the Archaeological Commissioner to be an
archaeological reserve under section 33 of the said
Ordinance.
For the reasons set out above, I am of the view that there
is, within the meaning of the Constitution, an imminent
infringement of the petitioners rights guaranteed by
Articles 14 (1) (g) and (h) of the Constitution.
ALLEGED VIOLATION OF ARTICLE 12(1)

CONSTITUTION
OF THE
The Chairman/Director General of the 2 nd respondent in a

letter dated March 30, 1988 (P7) quotes the following from
the Executive Summary of the report of the Presidents
Committee dated the 9 th of May 1995: Any large-scale
venture has the potential to cause an adverse environmental
impact, yet it could generate substantial revenue to the
country. It is also recommended that the rigorous EIA
procedures laid downby the law be followed before any
joint venture proposal is implemented because of the
possible environmental risks associated with projects of
this nature.
One wonders whether the provisions of the Mines and

Minerals Act relating to lakes, streams and bunds and
catchment areas as defined by reference to the Crown
Lands Ordinance Sufficiently protect the water and soil
conservation ecosystem of the area affected by the
proposed project. No evidence was placed before this
courts as to whether any land in the exploration, mining,
contract or project areas has been prescribed under the law
as being land within prescribed distances from ancient
monuments and what land has beendeclared to be an
archaeological reserve.Moreover, no provision exists for
the preservation of cultural heritage landscape, like the Jaya
Ganga, as distinguished from a monument, lest there be
some dispute about the word monument : No laws can
expressly provide for all situations. However, the
legislature has foreseen the need to provide against
omissions and stated in section 30 (2) as follows:
Learned counsel for the respondents submitted that Article

XXV of the proposed agreement obliges the Company to
comply with the National Environmental Act No.47 of
1980 as amended by Act, No.56 of 1988 and the regulations
made thereunder. In the circumstances the company is
obliged to submit an Environmental Impact Assessment
in terms of Part IV c of the Act.
The proposed agreement makes no reference to the
preparation or submission of any Environmental Impact
Assessment as required by the National Environmental Act
and the regulations made thereunder. What the proposed
agreement does, as we have seen, is to provide for an
environmental study to be prepared by an international
firm, selected by the company and approved by the
73
Government, as a part of its Feasibility Study. (Article 7.6)

Feasibility Study is defined in the proposed agreement
as a study to determine the feasibility of commercially
developing any deposit or deposits identified by the
company during the Exploration Period, including the
items set forth in Annex E.Annex E states that the
Feasibility Study shall include Environmental impact and
monitoring studies into the likely effects of the operations
of the Enterprise on the Environment(such studies to be
carried out in consultation with an appropriately qualified
independent consultant and under the terms of reference
set out in Article XXV of this Agreement). ( But of.Article
7.6 where the study is to be conducted by an
internationally independent environmental consulting
firm....)
including the CEA, is essential. If that is not obtained, the

project comes to an end. If there is a threat to the
environment of to the people, the Central Environmental
Authority will not permit the project to go ahead. The CEA
is the statutory authority vested by law to determine the
matter. The Central Environmental Authority can refuse
to permit the project. That is final. If the Central
Environmental Authority does give its approval, the
feasibility study, development plan and the report of the
international firm on environment, he said, is submitted to
the Secretary of the Ministry of Industries, who may refuse
it on the grounds specified in the proposed agreement. It
is only after the feasibility study inclusive of the
Development Plan (Sic.) is approved by all the statutory
authorities including the Central Environmental Authority
that the next stage will commence. The next stage is the
construction stage. Referring to the Environment Impact
Assessment and the requirements under the National
Environmental Act and the regulation framed thereunder,
learned counsel for the 5 th and 7 th respondents gave the
assurance that all those steps will be followed after the
feasibility study is submitted to the CEA... Therefore the
public will have every right of protest after the feasibility
study report is submitted to the CEA. As we shall see, the
submissions of learned counsel on that matter were, having
regard to the statutory requirements of the National
Environmental Act and the regulations framed thereunder,
seriously flawed.
Not surprisingly, therefore, although both the Deputy

Solicitor General and learned counsel for the 5th and 7 th
respondents agreed that an Environmental Impacts
Assessment was a requirement of the Law, they were
unable to agree when that assessment was to be made, and
what its significance was in the context of the proposed
agreement.
Firstly, therefore, in terms of Principle 17 of the Rio De
Janeiro Declaration, there is noGovernmental Impact
Assessment subject to a decision of a competent national
authority. Nor is the approval ofsuch an authority in terms
of the National Environmental Act contemplated by the
proposed agreement. What does exist in the proposed
agreement is an assurance that the Applicable Law,
including the provisions of the National Environmental
Act, will be complied with.
Learned counsel for the 5 th and 7 th respondents inquired

whether, after bringing in scientific and technical expertise
not available in this country, and investing U.S $ 15 million
not available for investment by the Government, it was
too much for the 5th respondent to pray that it be permitted
to proceed with the construction in the event of the statutory
authorities granting approval, and the Secretary accepting
the Feasibility Report and Development Plan. Learned
counsel for the 5 th and 7 th respondents said: Equity,
righteousness and fair play demands that the rights of all
parties be equally protected; for all persons are equal before
the law and such persons include the 5 th a n d 7 th
respondents. The petitioners state that their rights of equal
protection under the law are in imminent danger of being
infringed.
According to the Deputy Solicitor General, the Companys

application to construct and operate the facility had to be
made after obtaining the approval for the feasibility report,
inclusive of the EIA, and the Development Plan... He
stated that In the event the project Approving Agency
refuses to grant approval for the project, the project
company will have to abandon the project subject to a right
of appeal to the Secretary of the Ministry of Environment.
Moreover, if the project is approved after a hearing and
been given to the public, the persons who are aggrieved
will have an opportunity to come before the Court to have
the decision quashed. There are instance where the public
have invoked the jurisdiction of th Supreme Court and the
Court of Appeal to suspend development projects such as
the project such as the project pertaining to the Southern
Expressway and the Kotmale Power Project.
Learned counsel for the 5th and 7th respondents, on the other
hand, submitted that the Court should not intervene at
this stage, for the proceeding of the project, meaning
probably the signing of the proposed Agreement, will only
result in (a) exploration, (b) feasibility study. He stated
that the only comfort(sic.)the 5th and 7th respondents needs
and the only comfort (sic.) the 5th respondent gets from
this Agreement is that after the exploration and feasibility
study is done, and if (a) the statutory authorities grant
permission; (b) the Secretary accepts the feasibility report,
that the 5th respondent will be permitted to mine subject to
the terms and conditions of th Agreement and that they be
permitted to mine as set out in the feasibility report subject
tot he approval of the Statutory Authority.
According to learned counsel for the 5th and 7th respondents,

in the first place, after the feasibility report is prepared
and the development plan is prepared, this project will be
submitted to the project approving agency, in this case the
Central Environmental Authority. The CEA, that is the
statutory authority, may or may not give its approval. If it
does not give its approval, the matter ends there. ; The
permission and approval of the statutory authorities,
74
The proposed agreement is so framed that is generously

strengthens,assists, supports, aids and abets the companys
designs in respect of all of the matters referred to in the
analysis of learned counsel in dealing with the various
stages of the project. Article 17.3 I have quoted above is
one example.There are others. E.g see Articles 2(2)(b)(i)
and (iii) and (iv) and (v), 6 (f), 6(g), 6(h); 2c.4; 2.5; 2.21;
3.2; 3.4 (a) and (b); 6.1; 7.1; 7.8; 8.2; 9.3 9.4; 9.7; 16.5;
16.6; 17.1; 17.6; 27.7. Once the proposed agreement is
signed and converted into a formal, binding contract, there
is little else the Government into a formal, binding contract,
there is little else the Government can do except, under
Article 20.1 to resort to arbitration. And there will be much
less the petitioners, or for that matter nay one else, who
may be adversely affected, will be able to do. The Deputy
Solicitor- General submitted that persons who are
aggrieved will have an opportunity to come before the
Court. There may be legal rights on paper;but how many
individual people, including the petitioners, if and when
they are adversely affected by the proposed a project will
be able to afford the luxury of litigation ? If they are in
fact adversely affected what are the chances that they will
be adequately compensated? The liabilities will not be
those of the multi-national giant whose standing in the
worlds fertilizer business scene it is said was a decisive
facto in their selection (see P4 at p.2 and also cf.at p.5),
but of Sarabhumi Resources (Private) Ltd. a locally
incorporated limited liability Company which presently
has an issued share capital of only Rs.58,000/-.
The signing of the proposed agreement may, in the

circumstances please, and even delight the Company, but
there is justification for examining the project as a whole
art this stage in deciding whether those dangers referred
to by the petitioners might be permitted to hang
threateningly over their heads and ready to overcome them
in the event of the signing of the proposed agreement and
the execution of the project.Fairness to all, including the
petitioners and the people of Sri Lanka as well as the 5th
and 7th respondents, rather than the companys comfort,
should be our lodestar in doing justice.
In terms of Part (I) (6) of the Order of the Minister on the
18th of June 1993 made under section 23 Z of the National
Environmental Act (vide Gazette Extraordinary of
24.06.1993), the proposed project, since it related to mining
and mineral extraction either concerned with inland deep
mining and mineral extraction involving a depth exceeding
25 metres and /or inland surface mining of a cumulative
area exceeding ten hectares, is a prescribed project
within the meaning of section 23 Z of the National
Environmental Act. As such, in terms of section 23AA of
the National Environmental Act, it is a project that must
have had the approval of project approving agency.
Project approving agencies were, on the 18th of June, 1993
(Gazette Extraordinary, 24.06.1993) under powers vested
in him, designated by the Minister under section 23Y of
the National Environmental Act, and includes the Central
Environmental Authority. Learned counsel for the
petitioners, for stated reasons, urged that the Project
Approving Agency in respect of the Project relating to the
case before us ought to be the Central Environmental
Authority. Learned counsel for the 5 th and 7th respondents
in his oral submissions, and many times in his written
submissions, stated or implied that the relevant project
approving agency was the Central Environmental Agency.
However, at one place he submitted that the preparation
of the TOR (Terms of Reference), co-ordination and all
activities would be undertaken by the CEA acting with
(sic.) the PAA. According to the minutes of a meeting
held on the 22 nd of January 1998, submitted by learned
counsel for the 5 th and 7 th respondents.
Moreover, learned counsel for the petitioners drew

attention to the inadequacy of the protection afforded by
Articles 25.1 and 25.3 of the proposed agreement with
regard to the repair of environmental damage. The
petitioners did not share the belief expressed by the first
respondent in his affidavit on the adequacy of the
safeguards by way of the proposed Environmental
Compliance Bond and Environmental Restoration Escrow
Account and the undertaking given withregard to
environmental compliance and restoration. It seems to be
that the provisions in the proposed agreement on the matter
are the product of outdated mainstream economic thought:
They appear to be based on the views of persons who at
best nominally recognize the environment or have
considerable difficulty in placing a value on it. Today,
environmental protection, in the light of the generally
recognized polluter pays principle (e.g see Principle 16
of the Rio Declaration), can no longer be permitted to be
externalized by economists merely because they find it
too insignificant or too difficult to include it as a cost
associated with human activity. The cost of environmental
damage should, in my view, be borne by the party that
causes such harm, rather than being allowed to fall on the
general community to be paid through reduced
environmental quality or increased taxation in order to
mitigate the environmentally degrading effects of a project.
This is a matter the Central Environmental Authority must
take into account in evaluating the proposed project and
in prescribing terms and conditions.
During the discussion, it was emphasised that as this is

the single largest investment which covers mining,
transportation and manufacturing of phosphate fertilizer
consisting of by-products, it is difficult to process this
project as required under the EIA regulation by one single
project Approving Agency (PAA).
Therefore it was suggested that the preparation of TOR
(Terms of Reference) and co-ordination of all activities would
be undertaken by the CEA acting as the PAA. Assessment of
th EIAR under main subsections of the project, i.e., mining,
transportation and industry would be carried out
simultaneously by GS & MB, Ministry in Charge of Transport
and the CEA respectively. This mechanism would be drawn
up at the next meeting to the concerned agencies.
75
This Court has no evidence as to what happened at the

next meeting, if there was such a meeting. I shall, for the
purposes of this judgement assume that the decision to
make the CEA the project approving agency stands. But
in addition to the tentative decision on the modalities of
cooperation between concerned agencies and the Central
Environmental Authority acting as the Project Approving
Agency, according to the minutes, it was also decided as
follows at that meeting:
1993), hereinafter referred to as the NEA regulations,

when the project proponent had the goal of undertaking
the mining project at Eppawela and was actively preparing
to make a decision in achieving that goal (see the definition
of project in the NEA regulations), such proponent
should have made an application to the Central
Environmental Authority (CEA) for approval of the project
as early as possible.The project proponent might then have
been required to submit to the CEA preliminary
information about the project, including a description of
the nature, scope and location of the proposed project
accompanied by location maps and other details. (see the
definition of preliminary information in the NEA
regulations). Such preliminary information would then
have been subjected to environmental scoping, that is,
among other things, determining the range and scope of
proposed actions, alternatives and impactsto be discussed
in an Initial Environmental Examination Report or
Environmental Impact Assessment. (See the definition of
environmental scoping in the NEA regulations). A matter
of significance is that in the process of scoping a project
approving agency, such as the Central Environmental
Authority, is by law empowered to take into consideration
the views of state agencies and the public. (NEA
regulation 6(ii)). Having regard to the concerns expressed
from time to time, the Central Environmental Authority
might have exposed themselves to a charge of being remiss
in the duties of a project approving agency had they failed
to invite and consider the views of the public. The purpose
of all this was set the terms of Reference (ToR) either for
an initial environmental examination report or an
environmental impact assessment (EIA).with regard to the
procedures to be followed in case the approval or rejection
of a project based upon an initial examination report,
attention is drawn to section 23 of the National
Environmental Act read with regulations 6 - 9 framed
thereunder.
As the exploration area falls within the

jurisdiction of various government agencies, it was
suggested that these agencies too would wish to
incorporate additional conditions if any to the
exploration licence. Director/Gs & MB agreed to
convene a further meeting with official of the FD,
DWLC, MASL, BOI and CEA for this purpose.
It was stated at the meeting that a project proposal and an

exploration plan have been prepared by the project
proponent.Hence Mr. Udaya Boralessa was requested to
submit 10 copies of the proposal and 05 copies of the
exploration plan to the CEA, for distribution among
concerned agencies. Were the copies received and
distributed? Were there any responses? This Court does
not know, for no evidence was placed before it on those
matters.
That meeting, I might observe, in passing, was attended
by the representative of several government ministries,
departments and agencies, and by Mr. S. Usikoshi and by
Mr. Udaya Boralessa.According to the evident onrecord,
Mr.Usikoshi was the General Manager of Tomen
Corporation which holds 25% of the shares in the project
company Mr.Udaya Borelessa was the Managing Director
of Novel Int. and represented IMC-Agrico. Which holds
an initial equity of 65% in the 5 th respondent. He is a
Director of the 7 th respondent.
The Central Environmental Authority was the 4th

respondent in this case and was represented by
learned counsel. However, no affidavits were filed
by the 4th respondent nor were any oral or written
submission made on behalf of the 4th respondent.
The Cental Environmental Authority, the fourth
respondent, should neverthelessin carrying out its
duties imposed under the order made in this
judgment, have due regard to and give effect to
the law, including the principles laid down or
acknowledge by the Supreme Court in the matter
before this Court.
According to the minutes of the meeting submitted by

learned counsel for the 5th and 7th respondents, the meeting
was chaired by the Director-General of the Central
Environmental Authority who is supposed to have stated
the objectives of the meeting.Why was the meeting held?
Was there an application for the approval of the project?
On what date was such application made?
If an application for the approval of the project was made
to the CEA or to any other project approving agency, why
was no reference whatsoever made either in the pleadings
or oral or written submissions of counsel for the
respondent? Why as stated in the minutes of the meeting,
was Mr. Borelessa invited... to make a presentation on
the proposed project for the information of participants,
If there was no project proposal before the Central
Environmental Authority at the time?
It was assumed by all the other respondents and the

petitioners that what would be required by the 4 th
respondent for the purpose of considering whether the
proposed project should be approved or not was an
Environmental Impact Assessment, and that if an
applicationhad been made to the Central Environmental
Authority for approval of the project, that Authority would
in all probability, after the process of scoping refereed
to above, which might, as we have seen, including taking
account of the views of state agencies and the public, have
In terms of the National Environmental (Procedure for

approval of projects) Regulations No.1 of 1993
(Government Gazette Extraordinary of the 24 th of June
76
called for an Environmental Impact Assessment from the

project proponent on the basis of the Terms of Reference
determined by the Central Environmental Authority.
I might observe, in passing, that it is time, indeed it is high

time, that the laws of this country be stated in genderneutral terms and that laws formulated in discriminatory
terms should not be allowed to exist, although protected
for the time being as existing law within the meaning of
Article 16 of the Constitution.The argument advanced that
the provision in the law relating to the interpretation of
statues that his includes her is clearly insufficient: it
displays, in my considered opinion, a gross ignorance or
callous disregard of such a matter of fundamental
importance as the fact that there are two species of humans.
Attention is drawn, particularly that of the Central

Environmental Authority, the fourth respondent, to
Principle 17 of the Rio De Janeire Declaration which stated
as follows: Environmental impact assessment, as a
national instrument, shall be undertaken for proposed
activates that are likely to havea significant adverse impact
on the environment and are subject to a decision of a
competent national authority. This is an important
procedural rule designed to facilitate the preventive
(Principles 6 and 7 of Stockholm) andprecautionary (Ate
15 of Rio) principle already mentioned above. I should
like to remind the persons concerned, especially the Central
Environmental Authority, that an environmental impact
assessment exercise can identify the potential threats of
proposed activity or project, and that this information can
then be used to modify the proposed activity in order to
take these threats into account. Remedial measures can
also be introduced in order to mitigate or reduce any
perceived detrimental impacts of the project. In this sense,
therefore,a an environmental impact assessment exercise
contemplated by the National Environmental Actcan be
instrumental in establishing exactly which areas of the
proposed project, or activity require precautionary or
preventive measures in order to ensure the overall
environmental viability of the project.
Where it considers appropriate in the public interest, and

in the circumstance of this case, I cannot think that the
Central Environmental Authority, having regard to what
has been stated above, would really have had any choice
in the matter, the Authority is by law obliged to afford all
those who made comments an opportunity to be heard in
support of such comments.The Central Environmental
Authority is legally obliged to have regard to such
comments, submissions and other materials, if any, elicited
at a hearing in determining whether to grant its approval
for the project.Upon completion of the period prescribed
by law for public inspection or public hearing, if held, the
Central Environmental Authority is, (having regard to the
provisions of section 23BB, regulation 12 of the NEA
regulations and the audi alteram partem rule - hear the other
side) required by law to forward the comments it received
and the representations made at any hearing to the project
proponent for responses.The project proponent is required
to respond in writing to the Central Environment
Authority.Upon receipt of such responses, the Central
Environmental Authority is by law required, either to grant
approval for the implementation of the project, subject to
specified conditions, if any or to refuse approval for the
implementation of the projects, with reason for doing so.If
approval is granted, the law requires the Central
Environmental Authority to publish in the Government
Gazettes and in one national newspaper published daily in
the Sinhala, Tamil and English Languages the approval as
determined. Further, is approval is granted, there must be
a place of the Central Environmental Authority to monitor
the implementation of the project.(See section 23BB of
the National Environmental Act and the NEA regulation
10-13.)Where the National Environmental Authority in its
role as the project approving agency refuses to grant
approval for a project submitted to it, the person or body
of persons aggrieved have a right of appeal against such
decision to the Secretary to the Ministry responsible for
the administration of the National Environmental Act and
the National Environmental Authority created under it.
Where the Central Environment Authority has required an

Environmental Impact Assessment, the law requires such
Authority to determine whether the matters referred to by
the Terms of Reference have been addressed by the project
proponent, and if the assessment is determined to be
inadequate, the Central Environment Authority is obliged
to require the project proponent to make necessary
amendments and to re-submit the assessment.Upon receipt
of the report required by law by promptly notice published
in the Gazette and in one national newspaper published
daily in the Sinhala, Tamil and English languages to
invite the public to make written comments, is any,
thereon to the Central Environment Authority.The law
requires that such notification shall specify the times and
places at which the [assessment] report shall be made
available for public inspection.The Central Environmental
Authority is requires by law to make available copies to
any person interested to enable him or her to make
copies.The law provides that any member of the public
may within thirty days of the notification published in the
Gazette or newspapers referred to above, make his (sic.)
comments thereon the Central Environmental
Authority.Since section 23BB(3) refers to making his or
its comments, having regard to the objects and scheme of
the National Environmental Act, in my view, includes
comments from statutory or other legal persons, as well
other organizations whether incorporated or not and
regardless of questions of legal personality, and by any
individual, regardless of gender.
There are also other project approving agencies designated

by the Minister, but the National Environmental Authority
is, the final authority in respect of environmental
matters.(See also NEW regulations 6 (ii), 13, 14, 17 (ii)
and 18).
77
report of the Committee of the President on the 9th of May

1995 was not submitted to his Court.We can only go by
Mr.
Wijesinghes
account
of
the
1995
recommendations.And going by the accounts there was a
failure to incorporate some of the most important
recommendations of the Committee reporting on May 9th
1995, e.g. the need for a comprehensive geological
evaluation and adherence to the rigorous EIA procedures.I
am not for a moment suggesting that either Mr. Wijesinghe
or any member of final negotiating Committee appointed
by the President acted except n good faith.It might have
been supposed that so as the geological survey fitted into
the exploration process and the environmental studies
proposed in the draft agreement formed a part of the
Feasibility Study, al was well.It was not.Learned counsel
for the 5 th and 7 th respondents said that the final round of
negotiations and who examined the proposals were the
most responsible and highest ranking officers of the
country.I accept learned counsels estimation without any
hesitation, but I am constrained in the words of Horace to
say, Indignor quandoque conus dormitat Homerus - But if
Homer, usually good, nods for a moment, I think it a shame.
As we have seen, learned counsel for the respondents were

all, in my view, correctly, agreed that if the Central
Environmental Authority refuses to approve the project,
that is an end of the matter, subject, of course, to the right
of appeal.
These salutary provisions of the law have not been
observed.In terms of proposed agreement, although there
is an undertaking to comply with the laws of the country,
which in my view, is an unnecessary undertaking, for every
person, natural or corporate must in our society which is
governed by the rule of law, comply with the laws of the
republic.What is attempted to be done is to contract out of
the obligation to comply with the law.The Articles of the
proposed agreement dealing with matters concerning
environmental issues, read with the provision on
confidentiality, in my view, attempt to quell, appease, abate
or even, under the guise of a binding contract, to legally
put down or extinguish, public protests.Learned counsel
for the 5 th and 7 th respondents stated that Sri Lanka does
not possess the scientific knowledge or the technical knowhow or the finances to develop this natural reserve.I cannot
accept the assertion that Sri Lanka does not have scientists
who can guide the country.Picking on yes persons, or
persons who might be suspected to be so, as interim Article
7.6 of the proposed agreement, is another matter, and that
is why conforming to the law, as laid down by the National
Environmental Act and the regulations framed thereunder
is of paramount importance.As for funding, that would no
doubt depend on the nature of project to be undertaken
and identification of sources of assistance appropriate for
the chosen level of operation.Quite different considerations
will apply if the decision after due investigation and debate
will be to produce a quantity of single super phosphate for
local use rather than producing Diammonium phosphate
for export.
It its Guide for Implementing the EIA Process, No. 1 of

1998 (P20), issued by the Central Environmental Authority,
it is stated as follows: The purposes of environmental
impact assessment (EIA) are to ensure that developmental
options under consideration are environmentally sound and
sustainable and that environmental consequences are
recognized and taken into account early in project
design.EIAs are intended to foster sound decision making,
not to generate paperwork.The EIA process should also
help public officials make decisions that are based on
understanding environmental consequences and take
actions that protect, restore and enhance the environment.
The proposed agreement plainly seeks to circumvent the
provisions of the National Environmental Act and the
regulations framed there under.There is no way under the
proposed agreement to ensure a consideration of
development options that were environmentally sound and
sustainable at an early stage in fairness both to the project
proponent and the public.Moreover, the safeguards ensured
by the National Environmental Act and the regulations
framed thereunder with regard to publicity have been
virtually negated by the provision in the proposed
agreement regarding confidentiality.I would reiterate what
was said by the Court in Gunaratne v. Homagama
Pradeshiya Sabha, (1998) 2 Sri. L.R. p.11, namely, that
publicity, transparency and fairness are essential if the goal
of sustainable development is to be achieved.
If the genuine intention was, as claimed by the respondents,

to comply with the requirements of the law, it was, in my
view, unnecessary to refer in the proposed agreement to a
study relating to environmental matters as part of its
feasibility report.The law is clearly laid down in the
National Environmental Act and the regulation framed
thereunder.What was being attempted by the proposed
agreement was to substitute a procedure for the laid down
by the law.It was assumed that by a contractual arrangement
between the executive branch of the government and
Company, the laws of the country could be avoided.That
is an obviously erroneous assumption, for no organ of
Government, no person whomsoever is above the law.
In his letter to Mr. Sarath Fernando dated March 30, 1998
(P7), Mr. Thilan Wijesinghe, the Director/Chairman of the
2nd respondent, who was also a member of the Committee
appointed by the President in 1997 to conduct the final
round of negotiation, stated that The Mineral Investment
Agreement initialed by the FMRP and the Government
incorporated most of the recommendation of the Presidents
Committee which reported on the 9 th of May 1995.The
Access to information on environment issues is of

paramount importance.The provision of public access to
environmental information has, for instance, been a
declared aim of the European Commissions environmental
policy for a number of years.Principle 10 of the Rio
Declaration calls for better citizen participation in
environmental decision-making and rights of access to
78
environmental information, for they can help to ensure

greater compliance by States of international
environmental standards through the accountability of their
governments.Principle 10 states as follows:Environmental
issues are best handles with the participation of all
concerned citizens, at the relevant level.At the national
level, each individual shall have appropriate access to
information concerning the environment that is held by
public authorities and the opportunity to participate in
decision-making processes.States shall facilitate and
encourage public awareness and participation by making
information widely available.Effective access to judicial
and administrative proceedings, including redress and
remedy, shall be provided.
require from any Government Authority, what comfort

may the petitioners derive?They are, in my view, entitled
to by apprehensive that even if there was a n environmental
impact assessment submitted tot he Central Environmental
Authority, such authority may not have been able to act
impartially and independently.Of what use are biased
decisions or decisions, reasonably suspected to have been
made under pressure?Further, although the law of Sri Lanka
provides for the judicial review of the acts of administrative
authorities, and Principle 10 of the Rio Declaration calls
for effective access to judicial and administrative
proceedings, the proposed agreement substitutes arbitration
for such proceedings, in which, of course, the public have
no role.
In the matter before this Court, the proposed agreement

makes no mention of an environmental impact assessment
in terms of the National Environmental Act.The
respondents stated that under its undertaking in the
proposed agreement to comply with the applicable laws,
it would have submitted an environmental impact
assessment, in due course, if it had been required to do
so.In fact, learned counsel for the 5th and 7th respondents
gave an undertaking that it would provide such an
assessment. However, the law, for good reasons, as I have
endeavoured to explain, requires the prescribed procedures
to be followed.The times prescribed are vital.Project
proponents cannot decide when, if ever they will comply
with the law.There are many things that have to be done at
the very earliest of stages for very good reasons.There is
also a prescribed time if and when an environmental impact
assessment has to be done.The parties to the proposed
agreement attempted to substitute an extraordinary
procedure for the proposed project.Such a procedure
contravened the provisions of the National Environmental
Act, and the regulations made thereunder and the guidelines
prescribed by the National Environmental
Authority.Thereby, reinforced by the confidentiality
provision of the proposed agreement, the proposed
agreement effectively excluded public awareness and
participation, as contemplated by our legislature as well
as by Principle 10 of the Rio Declaration.The proposed
agreement ignores the Central Environmental Authority
as the project approving agency although it was admitted
by the petitioners and the respondents that the Central
Environmental Authority in this matter was the project
approving agency, and substitutes in its place, the Secretary
to the Minister to whom the subject of minerals and mines
is assigned for the purpose of approving the environmental
study contemplated the proposed agreement.Such
Secretary is not a project approving agency in terms of the
National Environmental Act: Nor is he or she therefore a
national authority within the meaning of Principle 17 of
the Rio Declaration.A national authority is an authority
recognized by the law of a concerned State.In any event,
having regard to the undertaking given in Article 27.7(b)
that The Government shall render all reasonable assistance
to the Company to obtain all approvals, consents, grants,
licenses and other concessions as may be reasonable be
For the reasons given, in my view, the proposed agreement

seeks to circumvent the law and its implementation is
biased in favour of the Company as against the members
of the public, including the petitioners.I am therefore of
the view that the petitioners are entitled to claim that there
is an imminent infringement of their fundamental rights
under Article 12(1) of the Constitution.
OVERALL ECONOMIC
BENEFITS
The respondents submitted that the proposed agreement if

implemented would be highly beneficial to Sri Lanka and
that when one balances the purported complaints as a re
contained in the petition against the overall benefit that
would accrue to Sri Lanka, the petitioners application
cannot succeed in law.
The Director of the 5th respondent, Mr. Garry L. Pigg, and
the Director of the 7th respondent, Mr. U. I. De S. Boralessa,
state in their affidavits that the proposed project would
result in economic benefits to Sri Lanka which they
specify.The report of the Committee appointed by the
President (P4) lists numerous financial benefits.
Learned counsel for the p petitioners, however, submitted
that the Eppawela project governed by the proposed
agreement will not only be an environmental disaster but
an economic disaster as well.They relied on the analysis
of the social and economic considerations by Prof. V.K.
Samaranayake (P10) (a); the comments of Prof. Tissa
Vitarana (P9); the comments of Prof. O. A. Illeperuma
(P11); the report of the National Academy of Sciences
(P10); the report of the National Science Foundation (P12);
and the financial analysis by Premila Canagaratna (P17).
A study of the material submitted by the petitioners shows
that the question of benefits is a highly controversial matter,
but one that must be gone into, for our democratic republic
sets great store by the discovery of truth in matters of public
importance in the market place of ideas by vigorous and
uninhibited public debate.In the debate, perhaps, we need
to consider whether income and economic growth on which
the respondents lay great emphasis are the sole criteria for
measuring human welfare.David Korten, the Founder
79
President of the People-Centred Development Forum, once

observed:
ORDER
For the reasons set out in my judgement, I declare that an
imminent infringement of the fundamental rights of the
petitioners guaranteed by Articles 12(1), 14(1) (g) and
14(1) (h) has been established.
The capitalist economy [as distinguished from

Adam Smiths concept of a market economy] has
a potentially fatal ignorance of two subjects.One
is the nature of money.The other is the nature of
life.This ignorance leads us to trade away life for
money, which is a bad bargain indeed.The real
nature of money is obscured by the vocabulary
of finance, which is doublespeak. We use the
terms money, capital, assets and wealth
interchangeably - leaving no simple means to
differentiate money from real wealth.Money is a
number.Real wealth is food, fertile land, buildings
or other things that sustain us.Lacking language
to see this difference, we accept the speculators
claim to create wealth, when they expropriate it.
Squandering real wealth in the pursuit of numbers
is ignorance of the worst kind.The potentially fatal
kind.
There is no assurance of infallibility in what may be done:

but, in the national interest, every effort ought to be made
to minimize guesswork and reduce margins of error.
Having regard to the evidence adduced and the submissions
of learned counsel for the petitioners and respondents, in
terms of Article 126 (4) of the constitution, I direct the
respondents to desist from entering into any contract
relating to the Eppawelaphosphate deposit up to the time.
(1) a comprehensive exploration and study relating to
the (a) locations, (b) quantity, moving inferred reserves
into the proven category, and (c) quality of apatite and
other phosphate minerals in Sri Lanka is made by the third
respondent, The Geological Survey and Mines Bureau, in
consultation with the National Academy of Sciences of
Sri Lanka and the National Science Foundation, and the
results of such exploration and study are published: and
It is unnecessary for the purposes of the task in hand to

enter into the matter of the alleged beneficial nature of the
proposed agreement.The petitioners case is that there is
an imminent infringement of their fundamental rights
guaranteed by Articles 12(1). 14(1(g)) and 14 (1(h)).I have
stated my reasons for upholding their complaint.The
balancing exercise referred to by learned counsel has
been already done for use and the Constitution sets out the
circumstances when any derogations and restrictions are
permissible.Article 15(7) of the fundamental rights
declared and recognized by Articles 12 and 14 are subject
to such restrictions as may be prescribed by law, among
other things, for meeting the just requirements of the
general welfare of a democratic society. In the light of
the available evidence, I am not convinces that the proposed
project is necessary to meet such requirements. In any
event, the circumstances leading to the imminent
infringements have not been prescribed by law but arise
out of a mere proposed contract, and therefore do not
therefore do not deserve to be even considered as
permissible.
(2) any project proponent whomsoever obtains the

approval of the Central Environmental Authority according
to law, including the decisions of the superior Courts of
record of Sri Lanka.
I make further order that (1) the state shall pay each of the
petitioners a sum of Rs.25,000 as costs: (2) the fifth
respondent shall pay each of the petitioners a sum of
Rs.12,500 as costs: (3) the seventh respondent shall pay
each of the petitioners Rs.12,500 as costs.
R. Ammarasinghe, J.
Wadugodapitiya, J.
Gunasekara, J.
80
I agree.
I agree
81
IN THE HIGH COURT OF SOUTH AFRICA

(WITWATERSRAND LOCAL DIVISION)
CASE NO: 97021011
In the matter between:

SAVE THE VAAL ENVIRONMENT
Applicant
and
THE DIRECTOR: MINERAL DEVELOPMENT
GAUTENG REGION
First Respondent
THE DIRECTOR GENERAL: DEPARTMENT OF

MINERALS AND ENERGY
Second Respondent
THE MINISTER OF MINERAL AND ENERGY
Third Respondent
SASOL MYNBOU (EDMS) BPK
Fourth Respondent
SASOL CHEMIESE NYWERHEDE BPK
Fifth Respondent
SASOL LIMITED
Sixth Respondent
THE DIRECTOR: MINERAL DEVELOPMENT

FREE STATE REGION
Seven Respondent
82
JUDGEMENT
Companies Act, 1973. In my view, the critical purpose in

the formation and functioning of the Applicant cannot be
said to be that of carrying on any business that has for its
object the acquisitionof gain by the individual members
of the Applicant. The dominant object to be found in the
Constitution of the Applicant is to protect andmaintain the
environemntal integrity of the Vaal River and its environs
for current and future generations with specific focus on
the area between the Letaba Weir and the Barrage, and the
identification of other appropriate areas for similar
protection. This is not an organization that has as its main
purpose the advancement of the business or other financial
interests of its members. It may well be that in the pursuit
of its objectives, the Applicants members are enriched
materially. Such would be a subordinate purpose and one
which would not, on a reading of the Constitution, namely
that of maintaining the environmental integrity of the area
of concern. This is not an undertaking carried out for
commercial purposes, nor is it one where the identify of
its members is conceded for an ulterior purpose.
CASSIM , AJ:
The applicant brings this application in terms of Rule 53
against the First Respondent to review and set aside the
decision of the First Respondent taken on 22 May 1997 in
terms whereof he granted the Fourth Respondent a mining
authorization in terms of Section 9 of the Minerals Act
No. 50 of 1991 (the Act) for the establishment of an open
case mine at the north-west strip in north-west part of an
area where the Fourth Respondent is the holder of extensive
mineral rights in the vicinity of Sasolburg. The mining
licence dated 23 May 1997 is in respect of this authorization
to mine on the river bank of the Vaal River.
The application is opposed by the First Respondent and
the Fourth Respondent, and any reference to the
Respondents in this judgement is a reference to both First
and Fourth Respondents.
(See Mitchells Plain Town Centre Merchants Association

v Mcleod 1996 (4) SA 15 (A) at 1691-J).
In the founding affidavits filed on behalf of the Applicant,

the gravamen of the complaint is the failure of the First
Respondent to have afforded the Applicant the opportunity
to be heard in accordance with the principles embraced in
the maxim audi alteram partem. In supplementary
affidavits filed by the Applicant pursuant to the provisions
of Rule 53 (4) and after the record of the proceedings before
the First Respondent were made available, the Applicant
expended its cause of complaint to include certain alleged
misdirections on the part of the First Respondent.
Accordingly, I find that the Applicant has locus standi.

The First Respondent did not raise lack of locus standi.
The Fourth Respondent did not resist the application to
join four further applicants. This was a precautionary
measure on the part of the Applicant and its members and
in the event of this court finding that the Applicant did not
have locus standi. The application for joinder was granted.
Ronsand Ranch (Pty) Ltd was joined as the Second
Applicant, Giovanni Alberto Mario Ravazotti was joined
as the Third Applicant, Susan Shellshop the Fourth
Applicant and Lynn Dale Green the Fifth Applicant. The
consequence of the joinder would have impacted on the
question of cost if I were to uphold Fourth Respondents
special plea of lack of locus standi on the part of the
Applicant. In view of my finding that the Applicant has
locus standi, there are no cost consequences flowing from
the joinder application.
By agreement of the parties concerned, the debate before me

at this stage involves a consideration of the issue as to whether
Applicant was entitled to a hearing prior to the First
Respondent making a decision to issue a mining authorization
in terms of Section 9 of the Act. In the event of the Application
being successful on this leg, the matter would need to be
remitted to the First Respondent to consider the application
of the Fourth Respondent afresh and would render
consideration of the alleged misdirections unnecessary.
I now turn to the question as to whether the First

Respondent ought to have afforded the Applicant an
opportunity to make representations prior to the First
Respondent making a decision to issue a mining
authorization to the Fourth Respondent as prescribed in
Section 9 of the Act. Mr. GL Grobler SC, who appeared
on behalf of the Fourth Respondent, comprehensively
surveyed the law relating to the right to minerals and the
intrusion made by legislation and a plethora of regulatory
enactments in the ability of the holder of mineral rights in
respect of land to pursue his activities. Although the holder
of mineral rights enjoys preference over the owner of the
freehold, the holder of a right to minerals does not have
more or fewer obligations or duties than the owner of the
land. In Malhere v Ceres Municipality, 1951 (4) SA 501(A),
the court expressed the general rule as follows:-
The Fourth Respondents conditional counter application

to declare Section 9 of the Act to be invalid insofar as it
sterilises Fourth Respondents right to exploit its rights to
mine coal is premised on the grounds that the decision
vested in the First Respondent is contrary to the provisions
of Section 25 (1) and 25 (2) of the Constitution of the
Republic of South Africa, 1996, and stands over for
consideration after I have given judgement on the issue
referred to above.
Prior to considering the issue identified, there is a
preliminary point of locus standi. The Fourth Respondent
contended that the Applicant, namely Save the Vaal
Environment, does not have the necessary locus standi to
bring this application because it is illegal, its formation
having been prohibited by Sections 30 (1) and 31 of the
83
Die gemeensregtelike rel in Suid-Afrika is dat

niemand op sy grond iets mag doen nie wat sy
buurman se eiendom beskadig of hom indie redelik
genot daaroan belemmer, tensy daar n verpligting
in die aaard van n servituut op sodanige grond
rus.
(a) is the holder of the right thereto; or

(b) has acquired the written consent of such
holder to mine therefor on his own account
and dispose thereof,
in respect of the land or tailings, as the case
may be, comprising the subject of the
application.
(2) If the State is the holder of the right to any
mineral, the consent referred to in subsection
(1) (b) may, upon written application, be
granted by the Minister, subject to such terms
and conditions as may be determined by him.
(3) No mining authorization shall be issued in
terms of subsection (1), unless the Director:
Mineral Development is satisfied:
(a) with the manner in which the scale on which
the applicant intends to mine the mineral
concerned optimally under such mining
authorization;
(b) with the manner in which such applicant
intends to rehabilitate disturbances of the
surface which may be caused by his mining
operations;
(c) that such applicant has the ability and can
make the necessary provision to mine such
mineral optimally and to rehabilitate such
disturbances of the surface; and
(d) that the mineral concerned in respect of
which a mining permit is to be issued:
(i) occurs in limited quantities in or on the land
or in tailings, as the case may be, comprising
the subject of the application; or
(ii) will be mined on a limited scale; and
(iii) will be mined on a temporary basis; or
(e) that there are reasonable grounds to believe
that the mineral concerned in respect of which
a mining licence is to be issued:;
(i) occurs in more than limited quantities in or
on the land or in tailings, as the case may
be, comprising the subject of the application;
or
(ii) will be mined on a larger than limited scale;;
and
(iii) will be mined for a longer period than two
years.
The invasion of the common law rights by legislation just,

contended counsel for the Respondents, be interpreted
restrictively and without further unduly inhibiting the rights
of a mine holder. It is against this framework that counsel
for the Respondents submitted that Section 9 of the Act
did not afford the Applicant any right to be heard.
In the answering affidavit and in argument, Respondents
adopted the view that the Applicant and other interested
parties were entitled to a hearing prior to the First
Respondent taking a decision in terms of Section 39 of the
Act to permit the commencement of operations pursuant
to the approval of an environmental management
programme in respect of the surface of land in any mining
operation or intended operations having been submitted
by the holder of a mining authorization in terms of Section
9 if the Act.
The concession by the Respondents that the Applicant or
any other affected party is entitled to be heard at the Section
39 stage and not the Section 9 stage immediately poses
the question as to the rationale for such distinction. For
purposes of evaluating the contentions advanced by the
Respondents, it is necessary to set out the provisions of
Sections 5 (1), 9 and 39 of the Minerals Act 50 of 1991.
Section 5 (1) provides as follows:
Right to prospect and mine for and to dispose
of minerals (1). Subject to the provision of this
Act, the holder of the right to any mineral in respect
of land or tailings, as the case may be, or any
person who as acquired the consent of such holder
in accordance with section 6 (1) (b) or 9 (1) (b),
shall have the right to enter upon such land or
the land on which such tailings are situated, as
the case may be, together with such persons, plant
or equipment as may be required for purposes of
prospecting or mining and to prospect and mine
for such mineral on or in such land or tailings,
as the case may be, and to dispose thereof.
(4) Section 7 shall apply mutatis mutandis in

relation to the performance ofmining
operations under a mining authorization.
(5) Any application for a mining authorization
shall be lodged with the Director: Mineral
Development concerned and shall, in addition
to the other information and documents which
may be required by him, he accompanied by:
Section 9 provides as follows:

Issuing of mining authorization
(a) proof of the right to the mineral in respect of

the land or tailings, as the case may be,
comprising the subject of the application;
(1) The Director: Mineral Development shall,

subject to the provisions of this Act, upon
application in the prescribed form and on
payment of the prescribed application fee,
issue a mining authorization in the prescribed
form for a period determined by him
authorizing the applicant to mine for and
dispose of a mineral in respect of which he
(b) a sketch plan indicating the location of the

intended mining area, the land comprising
the subject of the application, the lay-out of
the intended mining operations and the
location of surface structures connected
therewith;
84
(c)
particulars about the manner in which the

scale on which the applicant intends to mine
such mineral under such mining authorization
optimally and to rehabilitate disturbances of
the surface which may be caused by the
intended mining operations;
(d) particulars about the mineralization of the
land or tailings, as the case may be,
comprising the subject of the application;
(e) particulars about the applicants ability to
make the necessary provision to mine such
mineral optimally and to rehabilitate such
disturbances of the surfaces;
(f) particulars about the applicants ability to
mine in a healthy and safe manner;
any approved environmental management

programme.
(3) Before the Director: Mineral Development:
(a) approves any environmental management
programme referred to in subsection (1) or
any amended environmental management
programme referred to in subsection (2) (b);
or
(b) grants any exemption or extension of time
under subsection (2) (a) or any temporary
authorization under subsection (4); or
(c) affects an amendment under subsection (2)
(c),
he or she shall consult as to that with the
Chief Inspector and each department charged
with the administration of any law which
relates to any matter affecting the
environment.
(4) The Director: Mineral Development may,
pending the approval of the environmental
management programme referred to in
subsection (1), grant temporary authorization
that the prospecting or mining operations
concerned may be commenced with, subject
to such conditions as may be determined by
him.
(5) (a) The Director-General may, pending the
approval of an environmental management
programme referred to in subsection (1),
require that an environmental impact
assessment be carried out in respect of the
intended prospecting or mining operations
by a professional body designated by the
Director-General.
(b) Any costs in respect of an environmental
assessment referred to in paragraph (a) shall
be borne by the holder of the prospecting
permit or mining authorization referred to
in subsection (1).
acceptance to the Director: Mineral

Development.
(6)
The Director: Mineral Development may

exempt any applicant for a mining
authorization from one or more of the
provisions of subsection (5) (b), subject to
such condition as may be determined by him.
(7) The Director: Mineral Development shall
consult as to the issuing of a mining
authorization with the Chief Inspector, and
no mining authorization may be issued unless
the Chief Inspector is satisfied that the
applicant has the ability and can make the
necessary provision to mine in a healthy and
safe manner.
(8) Subsection (7) shall apply mutatis mutandis
in relation tot he issuing of a prospecting
permit in terms of Section 6 or a permission
in terms of Section 8.

Environmental management programme:
(1) An environmental management programme
in respect of the surface of land concerned
in any prospecting or mining operations or
such intended operations, shall be submitted
by the holder of the prospecting permit or
mining authorization concerned to the
Director: Mineral Development concerned
for his approval and, subject to subsection
(4), no such operations shall be commenced
with before obtaining any such approval.
Section 5 expressly restricts the rights of the holder of the

right to any mineral in respect of land; the ability to
prospect or mine a mineral is further curtailed by the
provisions of Sections 9 and 13. Without the authorization
prescribed in Section 9 of the Act, the mineral rights holder
cannot exercise a right to mine. Finally, there is a
subsequent hurdle encompassed in Section 39, which
involves the control and management and the impact of
mining on the environment.
(2) The Director: Mineral Development may:
In Sachs v Minister of Justice; Diamond v Minister of

Justice 1934 AD 11 at 22, the court accepted the general
proposition that unless the statute expressly or by necessary
implication indicates the contrary, a statute giving power
to a public official or body to give a decision prejudicially
affected shall have an opportunity of defending himself.
(See too: Administrator, Transvaal & Other v Traub &
Other 1989 (4) SA 731 (A) at 748E-1. The Respondents
accepted that the decision of the First Respondent at the
Section 39 stage wold affect the liberty, property or
existing rights of the investigation it was argued pertains
directly to land on which mining was to be undertaken as
(a) on application in writing and subject to such

conditions as may be determined by him,
exempt the holder of any prospecting permit
or mining authorization from one or more of
the provisions of subsection (1) or grant an
extension of time within which to comply with
any such provision;
(b) approve an amended environmental
management programme on such conditions
as may be determined by him; or
(c) without application being made therefore, but
after consultation with such holder, amend
85
opposed to the Section 39 enquiry which investigates the

environment surrounding the land wherein the mining is
envisaged. I find the distinction artificial. It cannot be said
that representations by interested affected parties as to the
measures the mineral right holder intends to take apropos
rehabilitation disturbances of the surface may not have an
impact on surrounding property. There is in my view
nothing in Section 9 to suggest that the legislature expressly
or by necessarily implication excluded the right of
concerned parties to make representation. Having regard
to the discretion and functions vested in the First
Respondent by Section 9 of the Act, it is apparent that the
First Respondent does not exercise merely administrative
powers because the decision:
(a)
requires an inquiry into matters of fact; and
(b)
resulted in a decision which affected the rights of,

or involved civil consequences to, the members of
the Applicant. (See Hack v Venterspost
Municipality and Others 1950(1) SA172(W) at
190).
rather than administrative or executive has in recent times

been regarded as confusing the issue, it is nevertheless, in
my view of assistance in ascertaining the enquiry whether
the legislature intended the empowering enactment to
either expressly or by implication to exclude the
incorporation of the maxim audi alteram partem principle.
(See E Snell and Company v Minister of Agricultural
Economics 1986(3) SA 532(D) at 536 F to 537 A).
Whereas in this instance the First Respondent adopts the
view that the members of the Applicant have a right to be
heard at the Section 39 stage it must follow, in my view,
they similarly have a right at the stage where the First
Respondent considers the application to grant
authorization to the Fourth Respondent to conduct mining
activity. The decision of the First Respondent to grant
mining authorization within the scope of Section 9 affected
the surrounding property and the decision therefore
undoubtedly prejudicially affected the rights of the
members of the Applicant.
The concession on the part of the Respondents that the
Applicant was entitled to be heard at the Section 39 stage
and the absence of any contrary indications in Section 9
when compared with Section 39, amplified by the
discretionary power vested in the First Respondent in
Section 9 supports the case of the Applicant.
The right of the members of the Applicant affected is the

ability to make representations as to make representations
as to why the First Respondent ought not to grant a mining
authorization. The matters whereupon they can be heard
cannot at this stage extend beyond the investigative matters
prescribed in Section 9. Counsel for the Applicant correctly
submitted, in my view, that at the Section 39 stage it would
no longer be opened to interested and affected parties to
raise objections as to the manner or scale of mining or
whether because of considerations such as mining such
mineral optimally and the balancing of conflicting
interests the application in the manner applied for should
be granted or not. Where for instance the authorization
has already been granted in terms of Section 9, a Section
39 enquiry is not concerned with the planning permission
envisaged by Section 9, but the subsequent management
control phase after the right to mine has been granted.
Indeed the granting of authorization in terms of Section 9
entitles the Fourth Respondent to mine, provided its
environmental management programme is approved.
Section 39(4) moreover empowers the First Respondent
to grant temporary authorization to enable mining
operations to commence, subject to the conditions as
determined by the First Respondent. This is indicative that
there is no greater scope in the Section 39 stage as opposed
to Section 9 to recognize a right to be heard. As the
Respondents concede the right to be heard at the Section
39 stage, there is, in my view, a more compelling purpose
for such right to be recognized and accorded prior to the
decision to grant the authority to mine being made.
The approach would also promote the values which

underlie an open and democratic society based on freedom
and equality as espoused in the Constitution of the Republic
of South Africa, Act No. 108 of 1996. The approach is
further supported by and is consonant with the provisions
of item 23(2)(b) of Schedule 6 of the Constitution
prescribing lawful and procedurally fair administrative
action where the rights of any person is affected or
threatened. (See Foulds v Minister of Home Affairs and
Others 1996(4) SA 137(A)). In practical terms, the
Applicants members cannot prevent the First Respondent
from taking a decision he considers appropriate for the
optimal utilization of minerals they seek and have the
right to make representations and to e heard prior to such
decision being taken.
In the result I find that Section 9 of the Act entitles the
Applicant to be heard prior to the First Respondent taking
a decision whether to grant or not to grant authorization to
the Fourth Respondent the right to mine.
In these circumstances it is not necessary to make a finding
as to whether the First Respondent created a legitimate
expectation that he would permit the Applicant to make
representations at the Section 9 stage for purposes of
determining the main issue at this stage before me. I have
nevertheless taken the view that it is necessary to deal with
this aspect as it will have a bearing on cost.
In general the principles of natural justice must be

observed where quasi judicial powers are exercised.
(Dlamini v Minister of Education and Training 1984(3)
SA 255(N) to 257 F to H). Although the terminology of a
particular function under consideration being legislative
A legitimate expectation may arise either from an express

promise given on behalf of a public authority or from the
existence of a regular practice which the claimant can
86
reasonably expect to continue (See Counsel of Civil

Service Unions and Others v Minister for the Civil
Service [1984] 3 All E R 935(HL) at 943J 944a quoted
in the Traub case at 7561).
costs I propose to indicate my prima facie view on this

aspect . The First Respondent took the view that Section 9
did not entitle the Applicant to a hearing prior to a decision
being made by the First Respondent. This is a narrow
dispute and one which could have resolved itself by way
of a stated case. The First Respondent was justified in
dealing with the allegations concerning the basis relied
upon by applicant to establish legitimate expectation. I have
also had a preliminary consideration of the misdirection
contended for by the Applicant. This also entails a narrow
enquiry. In my view the Applicant was not justified in
delving into the merits of its case, in particular not to the
extent in which it did so. This prolonged the preparation
and consideration of the issues before me. Accordingly on
a prima facie basis insofar as costs are concerned and
having regard to the full scope of the application I propose
to make an order on the following terms:
The expectation may take many forms one may be an

expectation of prior consultation. Another may be an
expectation of being allowed time to make representations.
In the Traub case Corbet CJ said at 758D- E:
(T)he legitimate expectation doctrine is
sometimes expressed in terms of some substantive
benefit or advantage or privilege which the person
concerned cold reasonably expect to acquire or
retain and which it would be unfair to deny such
person without prior consultation or a prior
hearing; and at other times in terms of a legitimate
expectation to be accorded a hearing before some
decision adverse to the interests of the person
concerned is taken
Counsel for the First Respondent correctly submitted that

I cannot have regard to the conduct of the Fourth
Respondent in determining whether the First Respondent
created the environment by his part before he took a
decision to authorize as mining licence in terms of Section
9 of the Act. Having considered the respective versions on
behalf of the Applicant and the First Respondent it appears
to me that there is a bona fide dispute as to whether the
First Respondent agreed or entertained the notion that First
Applicant was entitled to be heard prior to him making a
decision in terms of Section 9 of the Act. On the principles
stated in Plascon-Evans Paints v Van Riebeeck Paints,
1984(3) SA 632 (A) the respective versions must e decided
on the First Respondents version. The First Respondent
maintains that he steadfastly adopted the view that the
Applicants did not have the right to be heard at the Section
9 stage but that it did have such a right at the Section 39
stage. In view thereof it is unnecessary to analyze the
different versions and that the Applicant must fail on this
leg. Although I did not hear full argument on the issue of
1.
That the Fourth Respondent pay 75% of the cost of

the Applicant which shall include the costs of two
counsel;
2.
No order as to costs is made against the First

Respondent.
Should any party wish to make submissions as to my

proposal concerning the cost order, I will entertain such
argument as I specifically reserved to do so. I have decided
not to order the full cost of the application although the
Applicant has been successful in view of the extensive
matters raised by the Applicant and which were
unnecessary for this application.
For present purposes I make the following order:
1.
87
That the decision of the First Respondent a mining

authorization in terms of Section 9 of the Minerals
Act, No. 50 of 1991, particularly in respect of the
establishment of the north-west open
DECISION NO. A8/99
IN THE MATTER
of the Resource Management Act 1991
AND
IN THE MATTER
of three appeals under section 120 of the Act
BETWEEN
G A PAYKEL and others

(Appeal RMA 202/97)
D L NATHAN and others
(Appeal RMA 204/97)
OYSTER COVE LIMITED
(Appeal RMA 211/97)
Appellants
AND
THE NORTHLAND REGIONAL

COUNCIL and THE FAR NORTH
DISTRICT COUNCIL
Respondents

HEARING at WHANGAREI on 14, 15 16, 17 and 18 September 1998, at Waitangi on 24
and 25 November 1998 and at Auckland on 26 November 1998
APPEARANCES
R B Brabant for the appellants in Appeals RMA 202/97 and 204/97
P Kapua and K Taurau for Oyster Cove Limited
M A Ray for the Northland Regional Council and the Far North District Council
B Waller and L Gibbs for the Eastern Bay of Islands Preservation Society (Incorporated)
C H Hall for the Bay of Islands Coastal Watchdog Incorporated
88
DECISION
8.
The appellants in Appeals RMA 202 and 204/97 own
other properties in Paroa Bay which are used as holiday
homes. Those appellants allege that the proposed fishing
lodge and associated facilities:
INTRODUCTION
1.
These are three appeals against the grant and refusal
of various resource consents by a joint committee of the
Far North District Council and the Northland Regional
Council. The consents relate to a proposal by the applicant,
Oyster Cove Limited (Oyster Cove) to develop a fishing
lodge and associated facilities at Paroa Bay in the Bay of
Islands.
2.
The Regional Council granted coastal permits for a
boat ramp, and a dinghy-pull mooring, discharge permits
for domestic wastewater and stormwater, and a water
permit to take water from a deep bore. Those decisions
were the subject of Appeals RMA 202/97 by G M Paykel
and D M Paykel and others.
3.
The Regional Council declined consent for the
remainder of the proposal within its jurisdiction: a jetty,
pontoon landing, walkway and associated piles, and
proposed swing moorings. That part of the Regional
Councils decision was the subject of Appeal RMA 211/
97 by the applicant, Oyster Cove.
9.
Further, these appellants claim that the coastal
permits granted by the first respondent are contrary to the
principles of resource management by authorising the use
of resources in association with and for the purposes of an
inappropriate and unjustifiable commercial fishing lodge.
4.
The Far North District Council granted land-use
consent to Oyster Cove to construct and use a fishing lodge
with an on-licence, eight associated accommodation units,
boat shed and helicopter pad on a property in the Coastal
1A Zone at Paroa Bay1 . That decision was the subject of
Appeal RMA 202/97 by the appellants Paykel and others,
and by Appeal RMA 204/97 by D L Nathan and G B Clark.
10. There is no challenge to the Regional Councils grant

of the water permit or the discharge permits.
11. The issue at the heart of Appeals RMA 202 and 204/
97 is the appellants assertion that the locality of the site is
inappropriate for the scale and intensity of the proposed
fishing lodge and associated activities, due to the visual
and landscape effects, the detraction from the natural
character of the environment, and because its marine
structures and commercial nature are inappropriate. As
long-term owners of holiday homes in Paroa Bay, the
appellants in Appeals RMA 202 and 204/97 seek that the
status quo be retained.
5.
As all three appeals arose from the same proposal
they were heard together2 , and this decision relates to them
all.
6.
Paroa Bay, a small, relatively shallow inlet, is
situated on the eastern side of the base of the Russell
Peninsula, in what is known as the outer Bay of Islands.
The site is approximately 14 kilometres from the town of
Russell, and land access to the site from Paroa Bay Road
is by a series of rights-of-way shared with other properties
in the area.
12. The appellants in Appeal RMA 202/97 seek

cancellation of the consents granted by the Regional and
District Councils, or alternatively, that conditions be
imposed on the consents to protect the pleasantness,
amenity and convenience of Paroa Bay. During the course
of the appeal hearing their counsel announced that they no
longer challenged the grant of consent for the existing boat
ramp and dinghy pull. The appellants in Appeal RMA 204/
97 seek that the decision of the Far North District Council
be cancelled and the land-use consent be refused.
7.
At present there is a large private residence on the
site, with a tennis court, a helicopter pad, and a concrete
boat ramp with a formed access from the residence. It is
proposed that the residence be converted and extended to
form the administrative activity centre and restaurant of
the fishing lodge
1
2
would be inappropriate having regard to the location,

proposed scale, intensity, function and design of the
development;
would be inconsistent with the provisions of the
operative and proposed district plans;
would cause significant adverse environmental
effects;
would adversely affect the quiet natural character
of Paroa Bay and the surrounding coastline including
its visual and other amenity values;
would lead to adverse cumulative effects by
providing precedent for further developments of a
similar type;
is not proven to be financially viable, and could lead
to a waste of resources and a temptation to allow
inappropriate subdivision.
The legal description of the site is an area of 1.7904 hectares being Lot 1 and part Lot 2 DP 160944 (North Auckland Registry).
Resource Management Act 1991, section 270(1).
89
13. By Appeal RMA 211/97, the applicant Oyster Cove

Ltd appealed against the Regional Councils decision
declining consent for the proposed jetty, pontoon landing,
walkway and associated piles, and the proposed swing
moorings.
way access, and the making of a contribution towards road

upgrading. The applicant accepted those conditions.
21. In her reply counsel for the applicant, Ms Kapua,
acknowledged that the restaurant had not been the subject
of the application as a separate activity, that the condition
about the restaurant means that the dining room is
essentially limited to lodge residents, and that there is no
capacity for casual visitors. We should therefore consider
the proposal on that footing, and need not consider whether
resource consent should be given for a restaurant for casual
visitors who are not resident at, or staff of, the fishing lodge.
Accordingly we do not deal with the effects on the
environment of a restaurant open to the general public.
14. These appeals were lodged in March 1997, prior to

the commencement of the Resource Management
Amendment Act 1997. Accordingly by section 78(5) of
that Act, the appeals have to be decided as if the 1997
Amendment Act had not been enacted.
THE PROPOSAL
15. Oyster Coves proposal is that the existing residence
on the site be converted and extended to form the
administrative activity centre for the fishing lodge, and a
licensed restaurant for up to 40 people, being guests
resident at the lodge and casual visitors arriving by boat.
Accommodation would be provided for three resident staff.
STATUTORY CONSIDERATIONS
22. Section 104(1) of the Act directs that, subject to Part
II, when considering a resource consent application and
any submissions received, a consent authority is to have
regard to the classes of matter listed in that subsection as
are relevant to the case.
16. Accommodation for guests would be provided in

eight new dormitory units in two groups. Each group would
comprise three single units and one double unit.
23. The effect of the phrase Subject to Part II is that

the direction to have regard to the classes of matter listed
in subsection (1) is not to be complied with where to do so
would conflict with the content of Part II3 . In this case noone contended that for us to have regard to the various
matters directed by section 104(1) would conflict with Part
II, so we proceed to do so.
17. Initially it had been proposed to erect a boathouse

for two 8-metre cruiser boats. As the case developed, the
applicant proposed instead a boatshed to house smaller
tenders about 6 metres in length, to be used to take guests
out to charter fishing boats offshore. The boatshed would
be set in the hillside near the existing boat ramp.
24. The classes of matter to which regard is to be had

are any actual and potential effects on the environment of
allowing the activity, and any relevant objectives, policies,
rules or other provisions of a plan or proposed plan. In
this case, assessment of the effects on the environment
can be assisted by reference to the relevant provisions of
the planning instruments, so we address them first.
18. It is also proposed that an existing helipad be used

as an accessory transport facility for tourists.
19. A pontoon jetty is proposed, with access formed by
decking along an esplanade reserve and over part of the
foreshore. The existing boat ramp would be retained and
resurfaced, with new paving from it to the boatshed. In
addition two dolphin mooring piles alongside the pontoon
jetty, and two swing moorings off the end of the boat-ramp,
would be constructed. An existing dinghy pull from the
boat-ramp is to be retained.
CONDITIONS
PLANNING INSTRUMENTS
25. We have considered no fewer than ten planning
instruments, many of them substantial documents. As may
be expected, although the language may differ, the various
instruments identify similar issues and contain substantially
similar provisions for addressing them.
ATTACHED TO LAND -USE CONSENT
20. In granting land-use consent for the proposal, the

District Council imposed a number of conditions. The
conditions included directions about landscaping and
colours of buildings to mitigate visual effects. They limited
the number of helicopter flights to 4 return trips per month,
between 7 am and 7 pm. The District Council also restricted
the restaurant and on-licence for use by staff, residents
and guests of the lodge, with a maximum of 30 people. In
addition the conditions required upgrading of the right-of-
26. We have concluded that the guidance which will be

significant for the decision on the land-use consent sought
can be found in the transitional Far North district plan,
and in respect of the structures proposed in the coastal
marine area it can be found in the proposed regional coastal
plan. However as we are obliged to have regard to all the
instruments, we will refer to the others as well, if more
briefly.
Russell Protection Society Inc v Far North District Council, Environment Court Decision A125/98.
90
Impacts, including cumulative effects, of

subdivision use and development on the
natural character of the coastal environment,
particularly its ecological, cultural, and
amenity values.
7. Provision for, and rationalisation of, mooring

facilities for recreational craft.
8. Maintenance, and where possible
enhancement of, public access to and along
the coast
15. Proliferation of structures and their effect on

landscape values.
NEW ZEALAND COASTAL POLICY STATEMENT
3.
27. The New Zealand Coastal Policy Statement 4 is

important, being the only national policy statement. The
relevant policies contained in it have been given effect in
the appropriate regional instruments.
28. Policy 1.1.1 carries forward section 6(a) of the Act,
and provides
It is a national priority for the preservation of the
natural character of the coastal environment by:
(a) encouraging appropriate subdivision, use or
development in areas where the natural
character has already been compromised and
avoiding sprawling or sporadic subdivision,
use or development in the coastal environment;
33. The statement contains the following objectives and

policies which are material to this case
22.3 Objectives
1. The preservation of the natural character of
the coastal environment, including protection
from inappropriate subdivision, use and
development.
3. Maintenance and enhancement of public use,

enjoyment of and access to the coastal
environment.
22.4 Policies
(b) taking into account the potential effects of

subdivision, use or development on the values
relating to the natural character of the coastal
environment, both within and outside the
immediate location; and
(c) avoiding cumulative adverse effects of
subdivision, use and development in the
coastal environment.
29. Policy 1.1.3 provides for the protection of particular

features of the natural character of the coastal environment
as a matter of national priority; this includes protection of
significant representational examples of landforms.
(a) PRESERVATION
OF
NATURAL
CHARACTER
Policies
1. In resource consent processes, to preserve
the natural character of the coastal
environment by, as far as practicable, avoiding
adverse effects on:
(i) significant landscape values, including
seascapes and significant landforms which
impart a distinctly coastal character
(vi) intrinsic and amenity values, including the

values of wild and scenic areas.
30. Policy 3.2.2 provides that the adverse effects of

subdivision, use or development in the coastal environment
should be avoided as far as practicable, and otherwise
mitigated, and provision made for remedying those effects
to the extent practicable.
PROPOSED REGIONAL
POLICY STATEMENT
31. A proposed regional policy statement for Northland

was notified by the Regional Council on 5 October 1993.
Submissions and relevant references have been decided,
and the provisions material to this case are beyond
challenge under the First Schedule to the Act. Because the
statement has been prepared under the Resource
Management Act, and because it has reached the stage that
it has, the relevant objectives and policies are particularly
significant for deciding resource consent applications.
Where avoidance is not practicable adverse effects

should be mitigated and provision made for
remedying those effects to the extent practicable.
2. In protecting the coastal environment from
inappropriate subdivision, use and
development (including any adverse effects
associated with location, scale and/or
character), councils will have particular regard:
(a) In relation to preservation of natural character
avoiding
(i) types of use and development (including
sporadic and sprawling subdivision) that
would be likely to have adverse effects on
the coastal environment; and
(ii) cumulative adverse effects (including those
associated with incremental change and a shift
towards dominance of the built form); and
32. Section 22 of the statement addresses coastal

management. It applies the relevant provisions of Part II
of the Act and of the New Zealand Coastal Policy
Statement, and foreshadows the regional coastal plan. The
statement identifies significant coastal management
issues 5 , including
4
5
New Zealand Gazette, 5 May 1994, page 1563.

Section 22.2
91
(iii) any conflict (potential or actual) with current

or existing uses, values and the natural
character of adjacent land and water areas,
and
Where it is not practicable to avoid these
matters, councils will have regard to the extent
to which they may be remedied or mitigated.
6. To adopt a precautionary approach to coastal

management where knowledge is limited
about the likely impact on the natural
character of the coast of the effects of
subdivision, use and development in the
coastal environment.
(c) ALLOCATION OF SPACE IN THE

COASTAL MARINE AREA
Policies
1. To enable the establishment and planned
expansion of activities which have an
operational need to be located in the coastal
marine area, provided the adverse effects can
be avoided, remedied or mitigated.
2. To limit the occupation of space including
the erection of structures and facilities in areas
of high cultural, ecological, landscape or
recreational value.
3. To avoid, remedy, or mitigate the adverse
effects of the establishment and expansion
of activities in the coastal marine area; to
encourage the multiple use and/or
consolidation of structures and other facilities;
and where an area is already adequately
served by such structures and facilities require
their multiple use and/or consolidation.
(d) PUBLIC ACCESS

Policies
1. To maintain and enhance the provision of
public access to and along sections of the coast
for scientific, educational, recreational and
cultural purposes.
REGIONAL
operative regional coastal plan, to the extent that those

provisions are not inconsistent with Part II of the 1991 Act.
36. Although there is a proposed regional policy
statement for Northland, there is not yet an operative
regional coastal plan. Accordingly we are required to have
regard to the regional planning scheme6 .
37. None of the parties in these proceedings referred to any
relevant provisions of that instrument. We have ourselves referred
to it. We find that the material contents relating to the natural
environment, visual quality, and coastal management are general
in nature. Although they are not inconsistent with Part II of the
1991 Act, they do not add to the considerations provided by the
proposed regional policy statement prepared under that Act.
PROPOSED REGIONAL
38. The Regional Council notified a proposed regional

coastal plan in December 1994. Decisions on submissions
were published on 5 September 1998, and the proposed
plan is deemed to have been amended in accordance with
those decisions 7 . There have been a number of references
to the Environment Court of provisions of the proposed
plan, but none has been heard yet.
39. Without prejudice to the outcome of those
references, we consider that the relevant provisions of the
proposed plan are significant for deciding the aspects of
the present proposal to which it applies, because it is an
instrument which has been prepared under the 1991 Act,
and has applied to the circumstances of the region the
provisions of that Act and those of the New Zealand Coastal
Policy Statement and the proposed regional policy
statement, and because it has reached the stage of
incorporating decisions on submissions on it.
40. Carrying through section 6(a) of the Act, section 1.1.1 of
the New Zealand Coastal Policy Statement, and section 22.3.1 of
the proposed regional policy statement, the proposed plan contains
the following objective8
PLAN (TRANSITIONAL)
34. The water permit required to authorise the proposed

taking of ground-water for the proposed fishing lodge is a
noncomplying activity in terms of the transitional regional
plan. However the water permit was granted by the Regional
Council and is not challenged in these proceedings.
REGIONAL
The preservation of the natural character of

Northlands coastal marine area, and the protection
of it from inappropriate subdivision, use and
development.
41.
PLANNING SCHEME
Related policies include the following9

1.
35. The Northland regional planning scheme was

prepared and approved under section 24 of the Town and
Country Planning Act 1977. By section 367 of the Resource
Management Act, regard is to be had to its provisions until
there is both a proposed regional policy statement and an
6
7
8
9
COASTAL PLAN (NEW )
In assessing the actual and potential effects

of an activity, to recognise that all parts of
Northlands coastal marine area have some
degree of natural character which requires
protection from inappropriate subdivision, use
and development.
Paihia and District Citizens Assn v Northland Regional Council, Planning Tribunal Decision A77/95.
Resource Management Act, First Schedule, clause 10(3).
Section 7.3
Section 7.4
92
2.
To avoid, remedy or mitigate the adverse

environmental effects including cumulative
effects of subdivision, use and development
on those qualities which collectively make
up the natural character of the coastal marine
area including:
4. Notwithstanding Policy 3, within Marine 2

management areas, to assess applications for
new structures, with particular reference to
the need for the proposed structure or
structures to be located within the coastal
marine area and to any potential effects on
the natural character of the coastal marine
area, on public access, and on sites or areas
of cultural heritage value.
8. In assessment of coastal permit applications

to require that all structures within the coastal
marine area are maintained in good order and
repair and that appropriate construction
materials are used.
(b) landscapes and associated natural features
3. Within Marine 2 Management Areas to

adopt a precautionary approach, through the
use of rules in this Plan, in defining what
subdivision, uses and developments are
appropriate within Northlands coastal marine
area because of actual or potential effects on
natural character.
6. To promote an integrated approach to the

preservation of the natural character of
Northlands coastal environment as a whole.
42.
45.
This is the objective for moorings 13

Provision for the appropriate location and use of
moorings within the coastal marine area while
avoiding, remedying or mitigating the adverse
effects of these activities on the coastal marine
area.
There is an objective about public access10

The maintenance and enhancement of public
access to and along Northlands coastal marine
area except where restriction on that access is
necessary.
46.
Relevant policies related to that objective are14

4.
43. There is an objective in respect of structures in the

coastal marine area 1211
The provision for appropriate structures within
the coastal marine area while avoiding, remedying
or mitigating the adverse effects of such structures.
5.
44. The following are among the policies related to that

objective 12
3.
Within all Marine Management areas, to

consider structures generally appropriate
where:
7.
47. The parts of the foreshore and seabed which are the sites
for the proposed marine structures are in the Marine 2 zone. The
zone statement for that zone is
(a) there is an operational need to locate the

structure within the coastal marine area; and
(b) there is no practicable alternative location
outside the coastal marine area; and
(c) the proposed purpose of the structure cannot
be catered for by existing structures within
the same locality of the coastal marine area;
and
(d) the structure is of the minimum area necessary
for its proposed purpose; and
(e) any landward development necessary to the
proposed purpose of the structure can be
accommodated; and
(f) any adverse effects are avoided, remedied or
mitigated.
10
11
12
13
14
As far as practicable, to avoid the proliferation

of moorings in Marine 2 management
areas through the classification of new
moorings as discretionary and require the
applicant to justify why the mooring is
required in these areas and why the new
mooring cannot be located within a Marine
4 Management Area.
To control the adverse effects of moorings
and mooring use on the coastal marine area
and other uses of it, particularly in regard to
recreational activity and marine farming.
To promote the integrated management of

moorings and associated land based facilities.
26.4.1 Marine Management Area Statement

The Marine 2 (Conservation) Management Area
is applied to areas to be managed to conserve
ecological, cultural and amenity values while still
providing for appropriate use and development.
This category is applied to all those parts of the
coastal marine area which are not otherwise
covered by any of the other four classes of
management area.
The creation of this management area recognises:
(a)the high existing natural character and amenity
Section 10.3
Section 16.3
section 16.4.3
Section 21.2.2
Section 21.2.3
93
value of most of the coastal marine area and the

significant contribution that this makes to the
social, economic and cultural well-being of
Northland, its people, and communities; and,
(b) our current lack of knowledge of Northlands
coastal marine area and the precautionary approach
which is therefore necessary to ensure that it is
sustainably managed.
based requirements).
The extent to which the proposed use or
development will maintain or enhance public
access to and along the coastal marine area
with particular consideration to the possible
effects on the natural character of the coast.
8. The extent to which the proposed activity will
maintain or enhance recreational
opportunities in the coastal marine area or
on adjacent land.
10. Any effects of the proposed activity on those

in the neighbourhood and, where relevant,
on the wider community, including any socioeconomic and cultural effects.
11. The effect of the proposed activity on the
natural character of the site or area within
which the activity is proposed and the
measures to be undertaken to ensure that
natural character will be preserved,
particularly in relation to:
(a) the topography or bathymetry of within [sic]
site or area
16. The extent to which the proposed activity will

restrict public access and the likely
effectiveness of any proposed measures to
avoid or mitigate adverse effects, including
the provision of alternative routes or points
of public access.
7.
48. The proposed structures are discretionary activities.

Assessment criteria are provided, and the following are
capable of being applicable to consideration of the
application for consent to those structures15
27.1 GENERAL CRITERIA
The primary criteria for assessing applications for
coastal permits are the relevant provisions of the
Resource Management Act, New Zealand Coastal
Policy Statement and the Regional Policy
Statement which in turn require regard to be had
to the objectives and policies within this plan.
These criteria are intended to assist consent
authority [sic] and applicants in determining the
actual and potential effects of activities which are
subject to consent requirements under section 26
of this Plan.
Additional general assessment criteria which will
be applied in the consideration of applications for
discretionary activities and noncomplying
activities within all marine management areas are
set out below.
27.2 ADDITIONAL CRITERIA FOR SPECIFIC

ACTIVITIES
1.
The necessity for the proposed use or

development within the coastal marine area
and the extent to which alternative options
to a location within the coastal marine area
have been considered.
2. The extent to which existing facilities of a
similar scale and nature to the proposed use
or development are:
(a) located in the vicinity of the site of the
proposed use or development especially on
land; and
(b) are fully utilised or otherwise not able to
satisfy the potential demand for such use or
development.
3. The extent to which the proposal will add to
the cumulative adverse effects of use and
development on the coastal environment,
including those associated with similar
existing uses or developments within the same
locality.
4. The extent to which cumulative effects on
the coastal environment can be minimised by
rationalisation of use and development similar
to that proposed.
5. The extent to which the proposal will avoid
sprawling, sporadic or ad hoc use of
development in the coastal environment.
6. The extent to which the proposed activity is
consistent with the planning provisions of the
adjacent land (where there are associated land-
27.2.1 Structures (excluding swing and pile

moorings)
1. Within Marine 2 Management Areas,
whether the proposed structure will be the
only structure or the first of its type or the
first of any significant size, within an estuary,
embayment, or unmodified stretch of
coastline and whether the approval of the
proposed structure is likely to lead to
additional proposals for structures or other
types of use and development.
5. The extent to which public access to and along

the coastal marine area is maintained or
enhanced through the use of the proposed
structure.
6. The degree of multiple use proposed.
7. The use to which the proposed structure is
to be put and the appropriateness of that use
in the proposed locality.
8. Whether the proposed structure is the
minimum size practicable, consistent with its
location and proposed function.
10. The extent to which adverse visual effects

are considered and the likely effectiveness
of any mitigation measures proposed
11. Whether the proposed structure will
compromise the recreational use of the site
and the surrounding area.
15 Section 27.1
94
52. The only exceptions are specific objective and

policies about wharves16
27.2.6 Swing and Pile Moorings

1. The need for the proposed mooring including:
(a) whether the proposed mooring is associated
with a property which is only accessible by
water.
(b) whether the vessel intended to be moored to
the proposed mooring is of a size or design
able to be stored on land.
(c) whether the applicant already owns or has
the use of an existing permanent mooring
within the locality or within the same estuary,
harbour or coastal stretch.
(d) whether the mooring is required for a
commercial enterprise whose function is
dependent on being located within the coastal
marine area.
2. Within Marine 2 management areas,
whether the proposed mooring will be the only
mooring within an estuary, embayment, or
unmodified stretch of coastline and whether
the approval of the proposed mooring is likely
to lead to additional proposals for moorings.
To provide for the construction of wharves,

landings and public boat launching ramps in the
Bay of Islands consistent with the need and
purpose for the development and the avoidance
of navigational hazards and environmental
damage.
Policies:
(a) By providing for, as conditional uses,
wharves, jetties, landings and public boat
launching ramps in the marine areas of the
district, except those areas subject to
conservation orientated planning controls.
(b) By ensuring that in marine areas of high scenic
and natural value, only those jetties and
landings which are necessary in the public
interest, to provide access to Crown-owned
reserves and conservation areas are provided
as permitted uses.
(e) By prohibiting jetties and landings from

locating adjacent to publicly owned coastal
land, except where constructed by the Crown
agency administering the land.
(f) By requiring that wharves, jetties, landings
and boat launching ramps be available for
public use as appropriate and reasonable in
the circumstances.
Proposed regional coastal plan (transitional)

49. The second review under the Town and Country
Planning Act 1977 of the Bay of Islands district scheme
had been publicly notified before the commencement of
the Resource Management Act 1991 on 1 October 1991. It
extended to apply to the waters of the Bay of Islands.
53. By the deemed proposed plan the sites for the

proposed pontoon jetty, boat ramp and moorings are in the
Marine 1B zone and are discretionary activities. The
Marine 1B zone is a moorings zone, and moorings are a
permitted activity provided the maximum number of
moorings does not exceed that prescribed by Appendix F
of the plan. The Appendix prescribes a maximum of 15
moorings for Paroa Bay. As this number is exceeded, the
proposed mooring is a discretionary activity.
50. To the extent that it applied below mean high water

mark, it has not been made operative. To that extent, by
section 370(3) of the 1991 Act, it is deemed to constitute a
provision of a proposed regional coastal plan for the region.
Therefore we are directed by section 104(1)(d) of that Act
to have regard to the relevant objectives, policies, rules
and other provisions applicable to the parts of the present
proposal in the part of the coastal marine area below mean
high water mark.
Regional coastal plan (deemed)
51. However those provisions were prepared under the 1977

Act. They were prepared without the benefit of the New Zealand
Coastal Policy Statement or the proposed regional policy
statement. By contrast, the proposed regional coastal plan was
prepared under the 1991 Act, and has applied to the circumstances
of the region the provisions of that Act and those of the New
Zealand Coastal Policy Statement and the proposed regional policy
statement, and has reached the stage of incorporating decisions
on submissions on it. For those reasons we consider that better
guidance for the decision under and for the purpose of the 1991
Act on the coastal permits sought in these proceedings can be
found in the proposed regional coastal plan than in the deemed
proposed regional coastal plan. Accordingly, although we have
had regard to the provisions of the latter, we do not detail them in
this decision. It is sufficient to record that in general none of them
raises issues which are not raised more relevantly by the proposed
regional coastal plan.
54. The former Bay of Islands County Council district

scheme which had been approved in 1979 under the Town
and Country Planning Act 1977, and the Final
Classification of the Bay of Islands under the Water and
Soil Conservation Act 1967, were in force immediately
before the commencement of the Resource Management
Act on 1 October 1991. By section 370(1) of that Act, a
regional coastal plan was deemed to have been constituted
for the Northland region which included such of those
instruments as applied to the part of the region in the coastal
marine area. That deemed plan was deemed to have been
operative from the commencement of the 1991 Act until a
regional coastal plan prepared under the 1991 Act becomes
operative for the region.
16 Section 5.2.2(5).
95
55. However the operative district scheme did not

contain zoning or other provisions for the seabed and
waters of the site, nor any provision applicable to the
coastal permit applications now before the Court.
61. The plan prescribes development standards about

height, location and coverage of buildings, access, and
conservation of landscape. The proposal meets all those
requirements save a 3-metre internal setback for the
boatshed adjacent to the esplanade reserve. The applicant
has sought a waiver of this requirement so that the boatshed
can be set into the hillside behind the reserve.
56. The waters of Paroa Bay are classified SA by the

Final Classification. However the proposal before the Court
would not affect the maintenance of the waters of the Bay
to that standard.
62. Comprehensive assessment criteria are provided for

conditional uses (discretionary activities). We quote
relevant contents from them17
57. Accordingly we have concluded that there is nothing

in the deemed operative regional coastal plan which should
influence the decision of these appeals.
103.3.1 General Assessment Criteria All Zones

General assessment criteria which apply in the
consideration of conditional uses in all zones are
as follows :
(1) The site size, shape, stability, drainage,
topography, environmental characteristics
relative to :
(a) the exact nature and the intensity of the
proposed use;
(b) its suitability for any proposed building or
structure;
(c) adequate space off street parking.
(2) The site location relative to:
(a) the local street pattern;
(b) main traffic routes;
(c) areas of pedestrian movement.
(3) The nature, size, location and design of
buildings or structures for the accommodation
of or associated with the proposed use in the
light of the exact nature of the proposed use
and the likely effect of such buildings and
structures on:
(a) the use and permitted development potential
of neighbouring sites and areas of water;
(b) the existing landscape character of the area;
(c) views to and from the area;
(e) vehicle traffic movement and navigation;
(g) public access to, from and along the foreshore.

(4) The effects of the general characteristics of
the proposed use and the extent to which
adverse effects on neighbouring sites or areas
of water can be mitigated, including but not
limited to effects with respect to :
(a) traffic, both land and water-based;
(b) noise
(c) ecological systems;
(d) water quality.
(5) the extent to which the site may be modified
by the proposed use and any remedial
measures proposed to be undertaken,
particularly in terms of:
(a) ground contour and features;
(b) vegetation cover;
(d) valuable, scarce or scenic natural features.
(7) the utility and servicing requirements of the

proposed use and the extent to which the
proposed use will cause demands for the
Proposed regional water and soil plan

58. The Regional Council has notified a proposed
regional water and soil plan for its region. The provisions
of that proposed plan are relevant to the Oyster Cove
proposal only in respect of the discharge of stormwater
and wastewater to ground. Those discharges are not
challenged in these proceedings. Accordingly the
provisions of that proposed plan cannot influence the
decision of these appeals either.
Far North district plan (transitional)
59. Prior to the Resource Management Act 1991, the
former Bay of Islands County Council had proposed a
reviewed district scheme for its district under the Town
and Country Planning Act 1977. The process of appeals
had not been completed by the time the 1991 Act
commenced. To the extent that it applied above the coastal
marine area, the Far North District Council completed the
processing of the scheme and the instrument became
operative in 1992. By sections 373 and 378 of the 1991
Act the district scheme then took effect as a deemed district
plan under that Act to that extent. Its provisions apply to
the applications for land-use consents now before the Court
for the fishing lodge, the boathouse, and the private helipad.
60. The sites for those activities are in the Coastal 1A
zone, and they are all discretionary activities in that zone.
The zone statement reads
This sub-zone is applied to sensitive parts of the
coastal environment where conservation orientated
policies can protect the natural character whilst
providing for managed change to the landscape.
The provisions of this sub-zone - although similar
in general terms to those of the Coastal 1
(Environment) zone - are particularly designed
to provide limited opportunities for managed
change to occur in certain parts of the coastal
environment, provided that the landscape can
accept that change, without substantial degradation
of quality and environmental damage to sensitive
marine areas.
17 Section 103.3
96
uneconomic or premature installation,

upgrading or extension of public utilities and
services, particularly in terms of:
(b) access and roading.
103.3.2 General Assessment Criteria

Particular Zones
General assessment criteria which apply in the
consideration of conditional uses in the particular
zones specified below are as follows:
(3) Coastal 1 to 4 and 6 Zones

(a) The necessity for the proposed use or
development to locate in the coastal
environment;
(b) The extent to which the proposed use will
affect the natural character and landscape
qualities of the coastal environment;
(c) The extent to which regard is had to scenic
landscapes
65. Mr Brabant continued by observing that there is also

provision in the district plan for licensed tourist house
premises and for travellers accommodation, both subject
to a limit of 10 travellers accommodation units. He
contended that as no more than 10 units are proposed by
the Oyster Cove application, it would fall into those activity
categories.
66. A Regional Council coastal permits officer, Mr T G
Grove, touched on that subject in his evidence. He
expressed the opinions that the proposed accommodation
would be attractive to tourists irrespective of the marine
facilities that are provided, and that the proposed lodge
will accept tourists who do not, for various reasons
including the weather at times, utilise the fishing
experiences that the lodge may offer.
67. The Eastern Bay of Islands Preservation Society also
contended that the Oyster Cove proposal is best described
as a tourist hotel because it includes accommodation units,
a restaurant, sale of liquor to guests, and common areas
such as lounge, sauna and exercise room, tennis court and
swimming pool.
63. We agree with the opinion expressed in evidence by

Mr A O Parton that the following criteria for assessing
controlled activities are useful in applying the criteria18
68. We accept that the term travellers accommodation

is wide enough to include fishing lodges. However the term
fishing lodge has a separate meaning. It certainly implies
that a substantial purpose of the patrons will be fishing. It
would be pedantic to exclude people accompanying those
who go for the fishing even if the accompanying people
prefer other activities. It would also be pedantic to expect
that those who come for the fishing may not pursue other
activities as well while they are there. In our opinion, a
fishing lodge can be properly so described if fishing is the
main activity of the guests, and if other activities and
facilities provided for them are incidental to that main
activity.
(a) Design and external appearances

(i) Buildings and structures should complement
and appear to be part of the landscape and
consequently appear to sit in the landscape
rather than on it.
(c) Landscape design

(i) Where it is necessary that buildings break the
landform or vegetated skyline, foreground
plantings of high pruned forest tree species
will assist in reducing the visual impact of
buildings.
Status of fishing lodge under district plan

64. An issue was raised by counsel for the appellants
opposing the application, Mr Brabant, about the status of
the proposed principal activity in terms of the transitional
district plan. Counsel submitted that the fishing lodge
should be classified as travellers accommodation, which
would also have the effect of making the proposal as a
whole a non-complying activity. Although fishing lodges
are provided for as conditional uses (discretionary
activities) in the Coastal 2 zone, the term fishing lodge is
not defined in the plan. He contended that the clear
implication is that accommodation would only be made
available, in terms of the consent granted by the District
Council, to people who seek accommodation in order that
they can carry out the activity of fishing in the Bay of
Islands and further off-shore.
69. The district plan expressly provides for fishing

lodges in the Coastal 2 zone as a discretionary activity,
and the applicant is entitled to apply for resource consent
for one. It was appropriate for the District Council to accept
the application as being for that class of activity 19 , and
there is nothing before the Court to indicate that the
applicant is cynical or insincere in pursuing its application
on that basis.
70. Accordingly we hold that we should consider the
application as being for a fishing lodge, not for travellers
accommodation generally, and that its status is as a
discretionary activity.
18 Section 103.2.1.(5)
19 See Barry v Auckland City Council (1975) 5 NZTPA 312 (CA); Holm v Auckland City Council Environment Court Decision A10/98.
97
Proposed Far North district plan
contended that there is an unspoilt natural interface between

the land and the sea in Paroa Bay, on which the proposed
pontoon jetty would have a significant adverse effect.
71. A proposed district plan for the Far North district

was notified by the District Council on 31 October 1996.
However the proposed plan was withdrawn by the District
Council 20, with effect from 19 October 1998, prior to the
completion of the hearing of these appeals. Accordingly,
we do not make further reference to the provisions of that
planning instrument.
76. The importance of these issues is clear from section

6(a) of the Act, which provides
6. Matters of national importance In achieving
the purpose of this Act, all persons exercising
functions and powers under it, in relation to
managing the use, development, and protection
of natural and physical resources, shall recognise
and provide for the following matters of national
importance:
EFFECTS ON THE ENVIRONMENT

72. We have now to have regard to the actual and
potential effects on the environment of allowing the
activity. Several adverse effects were advanced at the
appeal hearing and evidence was given by some 15
witnesses. Rather than summarise the testimony of each,
we address each of the effects asserted separately, and refer
to the evidence relevant to that context which has assisted
us to make our finding in respect of it.
(a) The preservation of the natural character of

the coastal environment (including the coastal
marine area) and the protection of them
from inappropriate subdivision, use, and
development.
77. As we have seen, that theme has been carried through

the hierarchy of instruments to the proposed coastal plan.
It is not making too much of this issue then for us to start
our consideration of it by reviewing the evidence about
the existing visual quality of the site and of Paroa Bay.
73. At the appeal hearing there were two principal issues

about environmental effects. One was the visual effect of
the proposed buildings and structures on the natural
character of the coastal environment. The other was the
restricted use that could be made of the proposed jetty.
Although that is not itself an effect on the environment, it
is relevant to make a finding on that issue to address the
question of the operational need for the jetty (a question
raised by the proposed coastal plan), and to inform a
balanced judgment of the proposal as a whole. Because
our findings on those issues are significant in our
assessment of the proposal as a whole, we address them
first.
78. The site of the proposed fishing lodge is located on

the south-eastern headland of inner Paroa Bay, with a northwestern aspect overlooking outer Paroa Bay and the waters
of the Bay of Islands along the coast to Tapeka Point. A
planning consultant called on behalf of the District Council,
Mrs S M Harris, commented that the headland and ridgeline
afford spectacular views, and that the property has
extensive native revegetation currently being undertaken
at its eastern end.
74. In the assessment of the effects generally, we take

into account the proposed mitigation measures (including
conditions). We note here Mr Brabants submission that
the conditions imposed by the District Council in that
respect are inadequate, and that some of the proposed
planting relied on by the applicant would be beyond the
boundaries of the specific site the subject of the application.
If appropriate, those questions and improvements to the
conditions could be considered later.
79. The inner area of the bay is shallow (less than 1

metre depth), with a foreshore of mud, sand, shingle and
mangrove trees. There is an oyster farm development
within the inner bay.
80. The shoreline of the outer bay area has four small
sand-shingle beach areas separated by low cliff headlands.
There are some 17 swing moorings, 3 boat ramps, and
approximately 15 dwellings in the bay. The eastern part of
the Bay (where the development site and the appellants
properties are situated) has less development than the
south-western end.
Visual effects on the coastal environment

75. It was the case for the opposing parties that the
proposed development would have such significant adverse
effects on the character of the coastal environment that
consent should be declined. Even taking into account the
proposals for use of natural materials for cladding the
accommodation units and for planting about them and the
lodge itself, their location on or near the ridge is such that
land-use consent should be declined. Further it was
81. Mrs Harris reported that there are six residences

around Paroa Bay, between 200 and 1800 metres distant
from the site, most of which are holiday homes occupied
occasionally. There is an existing boatshed on a
neighbouring property some 100 metres west of the
existing boat ramp.
20 The proposed plan was withdrawn pursuant to clause 8D of the First Schedule of the Act.
98
82. Mr Taylor gave the opinion that the natural

character of the bay has been highly modified and degraded
by human development and requires a pro-active
conservation enhancement approach which can only evolve
with appropriate development, based on sustainable
management principles.
89. Mr Scott deposed that a knoll to the north of the

existing house is proposed to be lowered by two metres,
that the rooflines of the three smaller chalets to be located
there would follow a similar height to that of the existing
residence, and that a larger chalet would be located slightly
higher on the contour. The chalets to the south of the main
building would be located in an arc around a knoll and
would have views of Paroa Bay filtered through existing
and proposed vegetation. He testified that the chalets would
be single-storey, low apex structures, the exteriors would
be clad in timber in natural timber tones, and with painted
iron roofs.
83. A landscape architect called on behalf of the

applicant, Mr D J Scott described the area as exhibiting a
high degree of landscape modification. He gave evidence
to the effect that the site needs to be understood in the
context of the maritime recreation area of Bay of Islands,
where the character includes boats, related activities,
moorings, ramps and jetties.
90. The boatshed would be 8 metres wide, 9 metres deep

and 3 metres high, and would be set into the bank so that
only the front elevation would be visible from the water.
The proposed pontoon jetty would be on a reef at the base
of a semi-vegetated cliff, about 60 metres east of the
boatramp, and would be about 30 metres long.
84. One of the appellants, Mr D L Nathan, questioned

the less positive descriptions of the locality, based on his
personal experience from a long-standing connection with
the area. He gave the opinion that the bay is an area of
beauty and substantial natural character and tranquillity,
characterised by trees, second generation regrowth,
farmland and scattered beach houses.
91. Mr Scott gave the opinion that in areas such as the

Bay of Islands, built form is often subservient to more
dominant natural elements, and that well-designed
proposals can contribute significantly to an improvement
in the environment and result in a positive contribution to
the natural character of an area. He described the proposals
for revegetation of the coastal edge, and for integration of
structures within the site by location and mitigative
measures to reduce their visibility, and concluded that the
land-based elements would be integrated into the
landscape. The witness also gave the opinion that structures
along the waterfront, such as a jetty, provide a physical
and emotional link between land and water, and that the
associations implied are beneficial in enhancing the waterfocused recreational character of the Bay of Islands.
85. Mr Grove described the site as being in an area and

locality of high natural character and quality of the
environment.
86. Mr S K Brown, a landscape architect called on behalf
of the appellants Mr and Mrs Paykel, gave the opinion
that the bay has significant appeal, based not only upon a
preponderance of native/natural elements evident within
it, but also on the relatively high degree of cohesion and
continuity evident in the presentation of those elements.
He deposed that the Bay is visibly dominated by natural,
rather than man-made objects; and gave the opinion that
the only landscape detractors were the lack of mature
canopy species in the regenerating bushland (a common
problem in this part of Northland), and that there was an
awareness of the odd dwelling, structure, earthworks, and
some introduced plants. He confirmed that he remained
satisfied that Paroa Bay was deserving of the outstanding
landscape categorisation that it achieved in an earlier
survey in which he had taken part.
92. Mr Scott detailed the mitigative planting he

proposed, which would continue and expand on a current
planting programme, replacing weed species with native
species. There would be some eucalyptus and pine trees
removed, and a pohutukawa would be moved.
93. The witness deposed that from the entry to Paroa
Bay, the buildings would blend into the surrounding
landform and seemingly become part of the vegetative
mass. From the water below the property, all but one of
the buildings would have a vegetative backdrop, and the
buildings would be seen as a secondary element to the
landform and vegetation, and as an extension to the existing
scattered built form of Paroa Bay.
87. Mr Parton adopted Mr Browns evidence in relation

to the location and nature of the application, and the
detailed character of Paroa Bay.
88. With the consent of the parties, we have ourselves
visited Paroa Bay, both by land and by sea, and have taken
those opportunities to make our own observations to assist
us to make findings on the evidence. We find that all of
the elements described above are present to some degree,
and that while Paroa Bay has been modified in various
ways, in general it retains a natural character in the coastal
environment. We have now to consider the effects on that
character of the proposed buildings and structures.
94. Mrs Harris deposed that the building coverage of

the site would increase from 1.34% to 4.17%, which would
be mitigated by painting in colours sympathetic to the
landscape and continued planting. She concluded that the
visual and landscape effects of the development would be
minor, due to the small number, size and location of the
99
buildings below the ridge, their materials and colours, and

the planting programme aimed at blending them into the
landscape.
100. The witness agreed with Mr Grove that the jetty

would be a substantial structure, and that it would result in
substantial change and substantially at odds with the
significant natural qualities of the locality. Mr Brown gave
the opinion that it would modify the character of the wider
land-sea interface, that the natural continuity of the
coastline at the eastern end of Paroa Bay would be
appreciably disrupted and the combination of the jetty and
the boatshed would increase the concurrence of built
elements in that one part of the bay and lend it a feeling of
being significantly more developed than at present; and
that it would have greater than minor effects in its own
right.
95. Mr Grove stated that the promontory proposed for

the marine facilities is at the entry to the inner eastern arm
of the bay, and that the pontoon jetty and associated piles
would result in a substantial visual change in the locality.
He gave the opinion that they and the walkway and adjacent
moorings would have a dominating visual effect in the
locality, and that it would be preferable for the jetty/
pontoon and walkway to be constructed of materials as
natural as possible.
96. Mr Brown reminded us that existing degradation of
part of a landscape should not be regarded as an excuse
for additional development21 . He stated:
101. In summary, Mr Brown gave the opinion that the

proposals physical components would gave rise to an
amalgam of smaller scale effects, but that potentially much
more serious is the nature and intensity of activities
associated with the physical development.
My assessment is based on the premise that adverse

impacts upon amenity and landscape values
typically arise where discontinuity is evident
between what exists and what is proposed, and
where the resultant challenge to the existing order
of things is perceived in a negative light.
102. Mr Parton considered that the visual effects of the

roof lines of the proposed units would be significant, and
that there may be scars resulting from the construction
earthworks for the golf-buggy track to the beach. However
he considered that in the longer term, as the planting
proposed by Mr Scott matures, the positive effects would
gradually outweigh the adverse effects. Mr Parton
suggested that Mr Scotts landscape plan be subject to
conditions such as those imposed in Di Andre Estates v
Rodney District Council 22 (W36/97), including planting
density, overall plant numbers, initial plant size, planting
programme, and maintenance measures.
97. Having analysed the proposed buildings and

planting, he concluded that :
the residential development would be visible
but most of its built form would not be overly
obvious or excessively intrusive. Most of the units
would merge reasonably well into their general
surrounds, without significant modification of
Paroa Bays visual character and landscape value.
this deviation from the prevailing pattern of

residential development around Paroa Bay would
not, in its own right, have a major impact on the
bay landscape. The units would still be reasonably
subdued because of their recessive finishes and
low individual profiles such change would be
incremental and essentially modest in terms of
its overall effect.
103. It is our duty to make a finding on this issue where

there have been well qualified and experienced expert
witnesses giving differing opinions. Our resolution of the
issue has been guided by our understanding of the location
and scale of the proposed structures from the drawings
produced and from our observations of the site and locality,
particularly from on the waters of the bay.
98. Mr Brown acknowledged that Mr Scotts planting

proposals would help to both improve the condition of the
subject property and buffer some of the development
proposed. However he preferred use of native plants rather
than exotics.
104. We bear in mind that the site is in a bay where there

are already many buildings, and which is in a subzone
particularly designed for managed change to occur,
provided that the landscape can accept that change without
substantial degradation of quality. It is not a locality which
calls for precluding all development, or change.
99. Addressing the marine structures, Mr Brown

observed that the boatshed (originally) proposed would
be similar in scale to that recently constructed at the Heatley
property in another part of Paroa Bay, next door to the
Paykel property. He accepted that boat sheds are a normal
feature of the Bay of Islands coastline, although they
contribute to a progressive and incremental change in
character.
105. We consider that the planting proposed by Mr Scott

would be effective, as it matures, to soften the view of the
lodge buildings from the bay, so that in context and
perspective, their final overall effect on the natural
character of the coastal environment is minor. In short we
find ourselves persuaded by the opinions given by Mr Scott,
Mrs Harris and Mr Brown.
21 Gill v Rotorua District Council (1993) 2 NZRMA 604; 1A ELRNZ 374.

22 Environment Court Decision W36/97.
100
106. Turning to the visual effects of the marine structures,

we accept that the sight of the boatshed can only be partly
softened by planting, and that of the pontoon jetty and
associated piles and walkway not at all. We agree with Mr
Groves opinion that it would be preferable for those
structures to be constructed of natural materials where
practicable. However we do not accept that it is
proportionate to describe those structures as having a
dominating visual effect in the locality, nor as being
substantially at odds with the natural qualities of the
locality. Nor are we persuaded that the natural character
of the bay would be substantially disrupted, especially
because of the low and narrow nature of the structures in
the total land- and seascape. In the scale of Paroa Bay, we
consider that the visual effects of the 30-metre jetty and
associated structures, built as designed to a modest height
above sea level, would not be more than minor, particularly
as the surfaces weather.
111. Mr G R Stevens, a qualified professional engineer,

testified that the proposed jetty and pontoon had been
designed under his supervision; that research had been
undertaken into the drafts of boats likely to use the jetty;
that (i) light displacement vessels such as runabouts
commonly used for all types of recreational fishing have a
draft in the range 0.4 to 0.7 metres; and that (ii) charter
launches in the range 7 to 20 metres which more commonly
target game fish were found to have drafts in the range 0.4
metres to 1.6 metres with an average of 0.9 metres.
112. Captain J L Harrison is a retired master mariner, now
a nautical surveyor, with experience of hydrographic
surveying in the Royal New Zealand Naval Reserve. From
his experience he gave the opinion that the average draft
of vessels used for sport and game fishing in Northland is
about 1.5 metres. Having made enquiries of others, he
concluded that the draft of typical vessels used for sport
and deep sea fishing in the Bay of Islands is 1.4 metres. In
cross-examination he agreed that the draft of a vessel Te
Ariki Nui had been measured for him by a boatbuilder,
Jim Ashby, and he accepted that the design draft of that
vessel may be 1.2 metres. He also accepted that there has
been a tendency towards shallower draft boats, and that
there are boats which have drafts less than 1.4 metres.
107. Having considered the visual effects of the lodge

and marine elements of the proposal separately, we have
now to consider the total or cumulative visual effects of
the proposal as a whole. We find that there would be some
degradation of the natural character of the coastal
environment of the bay, particularly initially until the
planting matures and the marine structures weather. In our
opinion that adverse visual effect, in context and scale,
should be taken into account, but on the basis that it would
not be more than minor.
113. Commander I S Monro is in practice as a

hydrographic surveyor and marine consultant, having had
25 years experience in surveying in the Hydrographic
Service of the Royal New Zealand Navy, including 4 years
in command of an inshore survey craft, 4 years in command
of HMNZS Lachlan, and 7 years as the Hydrographer,
RNZN. In cross-examination he stated that he would have
thought that the average draft for charter boats out of Paihia
and Russell would have been more than 0.9 metre.
Limitations on operational use of jetty

108. The other major issue is the restricted use that could
be made of the proposed jetty, relevant to the operational
need for the jetty (which is a question raised by the
proposed coastal plan). It was the case for the applicant
that the jetty would be essential for successful operation
of the fishing lodge, to allow patrons to embark on fishing
trips at all stages of the tide. It was the case for the
opponents that the proposed jetty would not perform that
function with its proposed length and location, because
there is not sufficient depth of water for most of the tidal
cycle.
114. Having reviewed the testimony of those witnesses,

we accept the value of Mr Stevenss distinction between
runabouts and game-fishing charter launches. Runabouts
drawing 0.4 to 0.7 metres would not always be suitable
for open-sea conditions, where charter launches drawing
up to 1.6 metres would be more likely to be preferred. In
considering the extent of the use that could be made of the
proposed jetty for fishing lodge patrons to go on and return
from fishing trips at various stages of the tide, it is
appropriate to take into account the use of both classes of
vessel which may be appropriate according to the kind of
fishing preferred by various patrons of the fishing lodge.
109. The basis for our finding on this issue is evidence

about the conditions, including depth of water available,
at the end of the jetty, and evidence about the draft of
charter fishing vessels likely to be used for fishing trips
from the lodge. It is convenient to address that sub-issue
first.
115. On that basis we find that for recreational fishing,

vessels drawing up to 0.7 metre are likely to be used, but
for game fishing, vessels drawing up to 1.6 metres may be
preferred and should be considered.
Drafts of typical vessels

110. Mr S D G Hunter, formerly manager of Game
Fishing Charters in the Bay of Islands, gave the opinion
that the average draft of typical game fishing boats using
the Bay of Islands is 3 feet (0.9 metres). He agreed that
allowance would have to be made for under-keel clearance,
and a greater allowance in an area of rocky outcrops.
Conditions at end of jetty

116. We now address the evidence about the conditions,
including depth of water available, at the end of the jetty.
101
117. Mr Taylor explained that for a vessel to have access

to the pontoon at all times, the draft would need to be no
more than 600 millimetres.
as the lowest predicted tide in the location is -0.3, allowance

for this gives a total of 1.68 metres. The witness stated
that if he were responsible, he personally would adopt a
minimum depth of 2 metres.
118. Mr Hunter agreed that under-keel clearance would

have to be allowed, and greater allowance in conditions
when there is a north-easterly swell. He also agreed that if
there is an area of rocky outcrops under water, an additional
allowance should be made for clearance.
125. Captain Harrison and Commander Monro had

established the depth of water at the site and found that
the site of the proposed pontoon is in an area of rock
outcrops and kelp with actual depths below datum of 0.5
to 0.7 metres.
119. Mr Stevens deposed that a bottom depth of 1.0

metres below chart datum can be achieved generally within
a distance of 30 metres of the edge of the rocky shelf at
the eastern end of the beach, and that a bottom depth of
1.0 metres below chart datum would give a water depth of
1.6 metres on mean low water neap tides and 1.4 metres
on mean low water spring tides; and the lowest low water
spring tides would produce a minimum water depth of 1.1
metres, twice a month on average.
126. Captain Harrison testified that its use by vessels

drawing 1.4 metres with an underkeel clearance of 0.25
metres would be limited to a period of 3 hours 45 minutes
each side of high water at neap tides, 3 hours 30 minutes
at spring tides, and 3 hours 15 minutes at maximum tides.
He agreed that boats drawing less than 1.4 metres would
not be limited by depth to the same extent, and stated that
with a water depth of 0.5 metre, a boat with a draft of 0.9
metre would be able to use the pontoon facility for 5 hours
each side of high water, but that for 4 hours a day it would
not be able to use it. He considered it is not a wise place to
put a berthing facility.
120. Mr Stevens deposed that he had personally checked

depths and confirmed that the soundings originally
measured by Mr M Poynter and those plotted by Captain
Harrison and Commander Monro were in general
agreement, subject to the limitations noted by Captain
Harrison. In summary, this witness testified that at a
distance of approximately 20 metres out from the rocky
shelf the outer face of the proposed pontoon would be in
water with a bottom depth which is a minimum of 0.7
metres below chart datum, which would give an available
water depth of 1.3 metres on mean low water neap tides
and 1.1 metres on mean low water spring tides, and that
those depths would be adequate at all times for type (i)
runabouts and at most times for type (ii) boats.
127. Commander Monro had checked the survey made

with Captain Harrison, and confirmed it. He had compared
it with naval hydrographic surveys in the Bay of Islands
in 1990-1992 and found good agreement with it. Although
he was not familiar with game fishing boats operating out
of Russell, he did not think that game-fishing boats would
have the kind of hull that would be able to operate alongside
the jetty. In re-examination the witness stated that it would
not be safe to take a vessel into the location of the proposed
jetty because of shoals.
121. In cross-examination Mr Stevens agreed that some

charter vessels in the Bay of Islands would not be able to
use the jetty at some stages of the tide; he would not agree
that 1.65 metres is the appropriate depth to consider; but
he agreed that for safe operation allowance has to be made
for underkeel clearance. He explained that he had assumed
a maximum wave height of 900 millimetres, considering
the fetch and accepted wind velocities, and that Paroa Bay
is exposed to the north-west.
128. In cross-examination Commander Monro agreed

that it would be feasible to use a tender, and with a tender
the jetty could be operational 24 hours a day, although in
re-examination he stated that he would not use a tender
carrying a few people to go out game fishing. He also gave
the opinion that embarking and disembarking would be
safer with a jetty than over a beach.
129. Mr Parton added his concern about how the jetty
would operate from a practical viewpoint. He explained
that advantages of the jetty for public access to the
esplanade reserve would be minimal; and that the
approaches to the jetty from the east and the west would
be shallow. He concluded that the proposed jetty would
not be able to operate satisfactorily because of inherent
physical limitations, and would constitute an inappropriate
development in the coastal area because of the operational
constraints. In particular he referred to foul ground because
of bricks, ie, rocks, lying on the seabed affecting safe
navigation in the vicinity of the jetty site. Mr Parton agreed
that that the approaches could be used at high tide, but
could not say what extent of the tide would enable craft to
be clear of the foul ground. He agreed that charter fishing
operators would have local knowledge from their frequent
122. In cross-examination, Mr Parton deposed that Mr

Stevenss chartings were 0.2 metre too generous because
he had erroneously taken low spring tides at 0.6 metre
instead of 0.4 metre. However that had not been put to Mr
Stevens in cross-examination for his comment, so we do
not consider it safe to make a finding to that effect.
123. Mr Grove also testified that on occasions there would
be inadequate water depth for charter boats to get in to the
jetty, and that on occasions wave conditions would make
it unsafe to use the jetty.
124. Captain Harrison considered that a minimum
underkeel clearance of 0.25 metres should be added and,
102
visits to the area. He told the Court that he would prefer

use of the jetty restricted to the fishing lodge, to diminish
the likelihood of danger to members of the public without
local knowledge.
through the additional habitat provided by the piles, could

be expected within a short time.
135. An environmental and marine ecological consultant,
Mr M Poynter, gave evidence of having assessed the
ecological effects of the proposed marine structures. As
he was not cross-examined, it is not necessary for us to
give the detail of his evidence. It is sufficient to record
that we accept his uncontested conclusion that there would
be no significant adverse effects or significant cumulative
adverse effects on the local marine ecology or water quality.
130. Mr Nathan deposed that in his experience it will not

be practicable to bring typical fishing launches and yachts
safely into the area of the proposed jetty; and that for a
considerable period each day, fishing launches and yachts
would not be able to get anywhere near it, as there would
not be enough water to operate safely. He also stated that
wind from the north-west to the north-east can expose the
area to considerable swell in rough conditions, and in those
conditions transferring people from launches to dinghies,
or navigating to the jetty and embarking or disembarking
there would be difficult. He too considered the marine
aspects of the proposal impractical, and the site unsuitable.
In cross-examination Mr Nathan agreed that in 1992 he
had supported a proposal for a jetty from the rocks, and
explained that it is the whole proposal that he objects to,
and he would oppose any kind of visitor accommodation
in the outer Bay of Islands.
Road traffic
136. Mr Taylor adopted a District Council assumption of
daily one-way vehicle movements for tourist hotels of two
per room, giving a maximum of 16 one-way vehicle
movements. He deposed that this would be equivalent to
the traffic movements generated by 4 residential units, and
gave the opinion that it would be insignificant.
137. The witness also deposed that some improvements
to sight benching on the Paroa Bay Road have recently
been made, that the District Council has increased its
funding for work on roads such as Paroa Bay Road. He
also reminded us of the condition of consent imposed by
the District Council and accepted by the applicant requiring
payment of a contribution of $5,000 towards the cost of
minor improvements on that road.
131. Mr Paykel deposed that the jetty would be inoperable

half of the time because of the low water depth.
132. Considering the totality of the evidence on this topic,
we find that because of rocky seabed and limited water
depth at the end of the proposed jetty, the availability of
the jetty for directly embarking and disembarking people
on fishing trips is likely to be restricted. The extent of the
restriction would depend on the draft of the fishing boat,
the state of the tide, and the prevailing weather conditions,
but it would not be likely to be able to be used for boats
suitable for game-fishing at all stages of the tide. When
the tide is low, tenders could be used to transfer people to
and from game-fishing boats. For boats with less draft
suitable for sport fishing (drawing up to about 0.7 metre),
the jetty would be capable of being used for most stages
of the tide and in most weather conditions, by operators
with local knowledge. Bearing in mind that weather
conditions which are adverse for use of the jetty may not
be comfortable for fishing anyway, we do not accept that
these limitations on the use of the jetty would justify a
finding that it would be inoperable or inappropriate as
accessory to a fishing lodge, or that they negate an
operational need for a jetty.
138. Mrs Harris gave the opinions that the likely increase
in traffic movements would be easily accommodated on
the sealed road to the eastern Bay of Islands, and that
improvements for the Paroa Bay Road and rights-of-way
might become necessary. In cross-examination she
confirmed that she had consulted with the District Council
roading engineer before forming her view on that, and on
the number of car parking spaces required at the lodge.
139. We find that with the improvements contemplated,
the amount of road traffic that would be generated would
not have adverse effects on the environment.
Water traffic
133. Having made our findings on those two principal

issues, we now address other possible adverse effects on
the environment that were raised at the appeal hearing.
140. Mr Taylor deposed that assuming full occupancy of

the fishing lodge of 20 people, and 4 persons per boat,
there might be 10 one-way boat trips per day. He gave the
opinion that this would be a minimal amount of water
traffic having regard to the overall boating activity in Paroa
Bay. We accept that and find that the water traffic generated
by the fishing lodge would not have adverse effects on the
environment.
Marine ecosystems
Air traffic
134. Mr Grove deposed that some destruction of fauna

would be involved through the piling and construction,
and that recolonisation of the area and minor enhancement
141. The conditions of consent would limit use of the

helicopter pad to 4c return trips per month. Mr Taylor gave
the opinion that this amount of air traffic would be
Other adverse environmental effects
103
insignificant. Mrs Harris reported that helicopter

movements are currently a common event in the Bay of
Islands. She too considered that the noise or disturbance
from four helicopter flights per month to and from the site
would not be significant, provided that a reasonable number
occur during working hours. The witness held to that view
in cross-examination. She explained to the Court that the
nearest building to the helipad off-site is at least 200 metres
from it, and that she had only considered relevant small
aircraft. Having consulted Mr Hegley (an acoustic
engineer) she considered that the attenuation of sound at
that distance would be such that the noise of a helicopter
engine coming up to take-off speed would not infringe the
noise limits in the transitional district plan.
explained that the coming and going of the types of boats,

the frequency of visits by boats, and their use of the pontoon
jetty would be perceived as a commercial intensity of
activity.
149. Mr Nathan expressed concern about increased,
regular boating activity, with fishing launches regularly
arriving, departing, anchoring or mooring in part of the
bay which at present is not used heavily by any craft,
increased numbers of helicopter flights and increased road
traffic.
150. In cross-examination Mrs Harris gave the opinion
that the addition of the number of people from the fishing
lodge using Paroa Bay could easily be accommodated in
the area of the bay; and that even in the low season two or
three more vessels in the bay would be a very small increase
in the scale of activities there.
142. In cross-examination, Mr Brown agreed that the

noise from the limited number of helicopter movements
would not be a major concern.
143. The applicant has accepted the condition of four
return helicopter trips per month. We consider that the
condition should confine the activities to the relatively
small type of helicopter that had been considered by Mrs
Harris. Even on that basis the helicopter activities could
not be said to have no adverse effect on the environment.
However they would be mitigated to the point where we
find that the effects would not be significant.
151. We accept Mrs Harriss opinion and so find.

Amenity values
152. Mr Brown accepted that boat sheds and activities
associated with boat use are a normal feature of parts of
the Bay of Islands coastline, but gave the opinion that
the regular dispersal of such elements along those
coastal margins which remain predominantly natural at
present, cannot help but contribute to a progressive and
incremental change of character , including the dilution of
those other qualities, such as solitude and freedom from
significant urban development, which make areas like
Paroa Bay so attractive and special.
Noise of vessels
144. Mr Grove gave the opinion that the pontoon and
jetty would result in a concentration of activity, including
additional noise.
145. Mr Taylor accepted that there would be some noise
associated with increased boating and helicopter activity.
He gave the opinion that the incidence of those activities
would be far below the accepted noise standards and would
have negligible adverse effect compared with normal
background noise, including that of jet ski activity
prevalent in the bay.
153. Mr Brown gave the opinion that the jetty and boat
shed would increase the concurrence of built elements in
that part of the bay and lend it a feeling of being
significantly more developed than at present. He also
considered that the values of tranquillity and relative
solitude would be affected by the intermittent arrival and
departure of helicopters, the regular coming and going of
charter launches and tender craft, gatherings on the beach
in the summer, and vehicle movements around the lodge.
146. Mrs Harris gave the opinion that because the site is
relatively isolated, the increase in noise would not be
significant.
154. Mrs Harris gave the opinion that it would be unlikely

that 20 to 40 guests at the lodge using two vessels at various
times of the year would have noticeable impact on the
amenity values of the area.
147. We accept that water ski and jet ski activities in Paroa
Bay are likely to be greater sources of noise than that of
tenders and fishing boats coming and going. We find that
the noise generated by vessels associated with the fishing
lodge would not be likely to have a significant adverse
effect on the environment.
155. The Resource Management Act does not mandate

tranquility and solitude, or an absence of change in Paroa
Bay, nor do the planning instruments. The activity
generated by the fishing lodge would be an addition to the
activity already carried out there, particularly in the
summer. In our judgment the increase in activity would
not be so great that it would qualify as degrading the
amenity values of the bay to a significant extent.
Intensity of activity
148. Mr Grove gave the opinion that the jetty and pontoon
structure and the proposed moorings would result in a
concentration of activity. In cross-examination he
104
Archaeological values
is willing to provide picnic tables and other facilities for

public use on the esplanade reserve.
156. Mrs Harris deposed that if any sites of archaeological

significance are uncovered, it is a requirement that they
be investigated and protected. She reported that no known
archaeological sites are present on the property, and that
enquiries among local residents and iwi in the area had
established that it is unlikely that the subject property
contains any subsurface evidence of occupation before
1900. The witness gave the opinion that the effects of
development on archaeological values are likely to be
minor. We agree and so find.
161. Mrs Harris reported that the only present public

access to the esplanade reserve is by the sea from the beach.
She acknowledged that use of the reserve to gain access to
the jetty pontoon would represent a more intensive use of
the reserve and may contribute to an erroneous impression
that the area is largely private land. The witness considered
that it would be necessary to minimise the numbers and
types of vehicles from the lodge moving across the reserve
and beach.
Bank stability
162. Mrs Harris also acknowledged that the applicant

accepts public use of the proposed pontoon and walkway,
and intends to provide picnic facilities on the esplanade
reserve to encourage public use. She considered that the
proposal represents an improvement in public access and
a positive environmental effect; and recommended
conditions requiring removal of a fence, prohibiting
permanent surfacing of the access track across the reserve,
prohibiting storage or long-term parking of vehicles on
the reserve, and requiring provision of public facilities on
the reserve by the applicant.
157. Mrs Harris identified that sites for the proposed

accommodation units would need to be formed in relation
to steep mixed-clay banks, and advised that care would be
required in foundation design and stormwater routeing to
minimise adverse effects on bank stability. We accept that
care is needed, and we consider that control can be
exercised by the regulatory authorities to avoid or mitigate
any adverse effects.
Public access to shore
163. Leaving aside perception, we find that in reality

public access to the foreshore and the esplanade reserve
would not be diminished, and may to some extent be
enhanced by the proposal. Privately provided structures
in public space could give an erroneous perception that
the general public are not welcome. Those perceptions
could be reduced by removal of inappropriate fencing and
by appropriate signs. Our finding should be based on the
reality, not on the possibility that some people may make
erroneous perceptions. We find that that there would not
be an adverse effect on public access to the foreshore or
esplanade reserve from allowing the proposed fishing lodge
and associated facilities.
158. Mr Grove considered that the proposed structures and

mooring would compromise to some degree any traditional
access and use of the foreshore in that area. He gave the
opinion that the potential for public use of the jetty would
be limited, given its location, but, in combination with the
proposed adjacent moorings, there would be a dominating
visual effect in the particular locality which could imply
that the facilities were private. Similar points were made
by the Bay of Islands Coastal Watchdog Inc. In crossexamination, Mr Grove conceded that the applicant has
given no indication it would discourage public use of the
foreshore and esplanade, and he told the Court there is no
reason why there could not be a sign on the pontoon
indicating that it could be used by the public.
Wastewater and stormwater discharge
159. Mr Parton considered that the proposal is in general

accordance with the objectives and policies which seek to
improve public access to the foreshore, but observed that
the relatively poor quality of the beach diminishes the likely
frequency of public use of the jetty.
164. Mrs Harris recognised that discharges of wastewater

and stormwater could have adverse effects if not properly
controlled. She deposed that management of those
environmental effects would be the responsibility of the
Northland Regional Council, and stated that the scale of
the proposed discharges would not be likely to present
effects that are more than minor. We so find.
160. Mr Taylor gave the opinion that the proposal would

not impede public access to and along the coastal marine
area , but would enhance access around the foreshore reef
where it would be traversed by the boardwalk to the
pontoon jetty, and would encourage access from the sea to
and the use of the esplanade reserve. He considered that
provision of the landing pontoon, and the walkway in
association with existing boat ramp for public and private
use, would improve public access to and along the coastal
marine area from the sea; and reported that the applicant
Social and economic effects

165. Mrs Harris gave the opinion that the capacity of the
proposed fishing lodge would provide for 7.3 % of the
anticipated demand for luxury fishing accommodation; that
a staff of three would find employment at the lodge; and
concluded that there would be overall positive social and
economic effects for the area. We accept that opinion.
105
Cultural effects
visual effects of the proposal, particularly in the short term

until planting matures and structures weather. Although
there may be limitations on the times when the jetty could
be used, they would not make it incapable of reasonable
use as accessory to the proposed fishing lodge. The
proposal would not have significant adverse effects on the
environment in other respects.
166. Mrs Harris reported that from information from three

iwi groups there are no known sites of cultural significance
on the site. There being no evidence or indication to the
contrary, we so find.
Cumulative effects
APPLICATION OF PLANNING
167. Mr Grove expressed concern of a precedent effect,
as consent for the jetty might be followed by applications
for jetties to serve other properties in the Bay of Islands.
He referred to pressure the Regional Council had had for
jetties; and acknowledged that he was uncomfortable with
the provision for jetties as discretionary activities in the
outer Bay of Islands, and looked forward to a future change
to the regional coastal plan in which they might be
noncomplying activities in the outer Bay.
INSTRUMENTS
172. Having made our findings on the effects on the

environment of allowing the activity, we have now to apply
the relevant provisions of the planning instruments which
we identified earlier in this decision. Mr Parton had
analysed the instruments applying to the land, and found
a common thread or theme which flows through most of
them:
168. Mrs Harris had given consideration to possible

cumulative effects of the proposal. She gave the opinion
that there is likely to be continuing demand for luxury
fishing lodge accommodation in the Bay of Islands.
However the number of possible suitable sites which are
appropriately zoned is limited and because of the small
scale and location of the present proposal, she concluded
that it would not have cumulative effects.
the objective of avoiding developments which have

an adverse effect on the natural character of the
coastline, and where such avoidance is not possible,
the mitigation and remedying of such effects to the
greatest extent practicable.
the objective of ensuring that jetties should
preferably only be allowed in situations where they
provide for multiple use, and improved public
access.
169. There are very few jetties in the outer Bay of Islands.
The proposed regional coastal plan now provides
appropriate control over new structures in the coastal
marine area. It would not be appropriate for our decision
to be influenced by Mr Groves reservations about the
contents of that plan. We find Mrs Harriss opinion on this
question persuasive, and find that granting consent to the
present proposal would not create a significant risk of
cumulative effects from consent for other jetties.
Effects overall
173. Because, as noticed earlier, the various instruments

identify similar issues and contain substantially similar
provisions for addressing them, we find Mr Partons
summary of the common theme helpful. Mr Parton had
analysed the instruments applying to the land. Our
examination of the objectives, policies and assessment
criteria of the instruments relating to the coastal marine
area23 revealed that in addition, in that context, attention
is called to minimising the scale of structures, avoiding
proliferation of moorings, considering cumulative effects,
and taking a precautionary approach to what is appropriate
in the coastal marine area. We therefore address the factors
identified by Mr Parton, and then those additional factors.
170. Mrs Harris gave the opinion that the applicant has
proposed all reasonable steps to mitigate adverse effects
of the proposal. Mr Parton considered that in the short-tomedium term, the adverse effects would outweigh the
positive effects, but in the longer term, as the landscaping
matures, the positive effects would outweigh the adverse
effects. He explained that if the jetty and public restaurant
had not been included, and the planting proposed by Mr
Scott was imposed by enforceable conditions, his opinion
would favour the development. He had no argument with
provision of dining facilities for resident guests of the
fishing lodge.
the objective of only allowing those activities which

have a functional or operational need to be developed
in the coastal environment.
in addition the Bay of Islands Operative District Plan
includes several more specific provisions relating
to the basic purpose of the coastal 1A zone, the
general locational preferences for tourism and water
related activities, and the avoidance of ridge-top
development
174. Avoiding adverse effects on the coastal environment

is a matter of natural importance. We have found that the
proposal would have an adverse visual effect on the natural
171. We have found that there would be some degradation

of the natural character of the coastal environment from
23 The New Zealand Coastal Policy Statement, the proposed regional policy statement, and the proposed regional coastal plan.
106
character of the coastal environment of Paroa Bay,

particularly initially, and that in context and scale, the effect
would not be more than minor. The effect should be
required to be mitigated and remedied as far as practicable.
visual effect. We find that the scale of that structure, of the

walkway, and of the boatshed are in keeping with the size
and context of Paroa Bay. The bay is an accepted moorings
area, having some 17 moorings already. We find that the
proposed additional moorings are required for a
commercial enterprise the function of which is dependent
on being located in the coastal marine area. We do not
consider that the addition of two moorings associated with
the fishing lodge would constitute a proliferation of
moorings. We find that there would not be a significant
risk of cumulative effects from consent being granted for
the proposed pontoon jetty and other proposed marine
structures in addition to those associated with similar uses
and developments in the area.
175. Because jetties occupy part of the public domain in

the coastal environment, they should be available for public
use. In this case, the applicant has accepted that. It may be
that not many members of the public would wish to take
the opportunity to use the proposed jetty and walkway to
access the foreshore and esplanade reserve in front of the
site. However the proposal allows for them to do so.
176. A jetty has a functional and operational need to be
in the coastal environment. Although people could travel
to Russell to embark on fishing trips, we consider that a
fishing lodge at Paroa Bay has a reasonable functional and
operational need to have a jetty. In this case, the challenge
was directed to whether, because of the water conditions
at the end of the jetty, it would be capable of being
functional and operational. Having considered the evidence
on that topic, we have found that the availability of the
proposed jetty for use would be restricted because of those
conditions. We have not accepted that the limitations on
its use would render the jetty inoperable or inappropriate
as accessory to a fishing lodge, nor that they negate an
operational need for it.
179. The policies in the proposed regional coastal plan of

taking a precautionary approach to management of the
Marine 2 areas carries forward references to such an
approach in the NZ Coastal Policy Statement 24 and the
proposed regional policy statement 25 . Those policy
statements show that this approach is considered appropriate
because of lack of understanding about coastal processes
and the effects of activities, and where knowledge is
limited about the likely impact on the natural character of
the coast of the effects of use and development in the
coastal environment. However as the evidence given at
the hearing of these appeals shows, there is no lack of
understanding or knowledge about effects on the natural
character of the coastal environment of the proposed fishing
lodge and associated structures, nor does any question arise
of effects on coastal processes. The district plan identifies
fishing lodges as a discretionary activity, and the proposed
regional coastal plan provides for the proposed marine
structures as discretionary activities. Accordingly we find
that there is no place for application of the precautionary
approach in deciding these appeals. We do not overlook
section 27.2.1(1) of the proposed regional coastal plan which
provides a criterion about a proposed structure being the
only structure or the first of its type or the first of any
significant size, within an embayment and whether
the approval of the proposed structure is likely to lead to
additional proposals for structures or other types of
development. The proposed pontoon jetty would be the
only or first such structure in Paroa Bay. We have already
given our finding that there would not be a significant risk
of additional jetties arising from consent to this proposal in
association with a fishing lodge.
177. Adverting to the district plan, the basic purpose of

the Coastal 1A zone is to protect the natural character while
providing for change to the landscape which is managed
to avoid substantial degradation of quality and
environmental damage to sensitive marine areas. Our
finding on the visual effects of the proposal shows that,
with the proposed landscaping, the proposal would succeed
in avoiding substantial degradation, especially after time
for planting to mature and for weathering. Referring to
the assessment criteria, we also find that in general there
is a reasonable need for a fishing lodge to locate in the
coastal environment, and our finding about visual effects
of the proposal shows general consistency with the
locational criteria. Referring to the controlled activity
criteria cited by Mr Parton, we find that on the whole the
proposed buildings would appear to sit in the landscape
rather than on it, and to the extent that one or more of
them may appear from some vantages to break the landform
or ridge, appropriate plantings can assist in reducing the
visual impact.
180. In summary, having applied the relevant provisions

of the planning instruments to our findings about the
proposal and its effects, we conclude that with appropriate
conditions to avoid and mitigate effects on the environment
the proposal is generally consistent with those instruments.
178. On the scale of the structures, we find from the

evidence of Mr Stevens that the restricted use that would
be able to be made of the proposed pontoon jetty results
from its having been designed to minimise its size and
24 NZ Coastal Policy Statement NZ Gazette 5 May 1994, page 1563 at 1564, col 2.
25 Proposed Northland Regional Policy Statement, paragraph 22.4.6.
107
approved the planting in accordance with Mr Scotts

landscape plan, on the basis that the applicant is responsible
for maintenance of the plantings.
CONDITIONS
181. Conditions were attached to the land-use consent
granted by the Far North District Council. Mr Taylor
proposed conditions which might be attached to a coastal
permit for the proposed marine structures. We have now
to consider whether amendments to those sets of conditions
are appropriate as a basis for considering whether those
consents should be granted or refused.
186. In respect of the private land, the applicant has

asserted that the conditions on which it sold that land ensure
that there will be no obstacle to implementing the landscape
plan. The applicant submitted that as the landscape plan is
put forward as integral to its proposal, it would be estopped
from suggesting that it cannot comply a condition requiring
that it give effect to the plan. Counsel cited Augier v
Secretary of State for the Environment 26 .
Land-use conditions
182. The conditions attached to the land-use consent
included directions about landscaping and colours of
buildings, limited the number and times of helicopter
flights; restricted the use of restaurant, required upgrading
of the right-of-way access, and the making of a contribution
towards road upgrading. If that consent is upheld, the
condition about the restaurant should be amended to
contain a clear prohibition on access to the dining facility
and associated bar by members of the public who are not
themselves currently resident at the fishing lodge.
187. Mr Brabant reported that he had requested, but had

not been provided with, a copy of the relevant condition
of sale. He submitted that the applicants response was
insufficient to address this issue, and that the appellant
cannot agree to conditions of consent if it is not the owner
of the land.
188. In a number of cases27 the Planning Tribunal held
that conditions should not be imposed which required
infringement of the rights of third parties, unless the third
parties consent. However it is not always necessary that
the applicant become the owner of land on which
conditions have to be performed. In some cases rights to
do things on third parties land which fall short of full
ownership may be sufficient.
183. In addition, the condition about landscaping should

be amended, as proposed by Mr Parton. The amended
condition should require early restoration measures on the
earthwork batters and retaining walls adjoining the
carriageway intended to serve the eastern group of
accommodation units; that fast-growing species be planted
and maintained around the accommodation units to
substantially screen the units when viewed from the sea;
that the boat ramp be re-surfaced with local aggregate;
planting around three sides of the shed to screen it, and
any exposed batters be promptly restored; and retention
or replacement by native species of an existing grove of
eucalyptus and conifer trees to the north of the tennis court.
(The witness had originally deposed that that the proposed
boat-shed should be relocated, but recognising the reduced
size sufficient to house tenders instead of cruisers, he fairly
acknowledged that it might be built in the location
originally proposed.)
189. In this case, the administering body of the esplanade

reserve has formally resolved to approve the
implementation of the landscaping plan on the reserve. The
applicant has sold the intervening land on conditions which
it is satisfied enable it (or its successor) to implement the
landscaping plan on that land. It is the grantee who has the
responsibility of complying with conditions of consent,
and whose resource consent and investment in work to
exercise it are at stake if it is unable to comply with the
conditions. So long as it is clear that the applicant has
obtained rights with which it is satisfied to enable it to
comply, and that compliance with the condition is essential
to the right to exercise the consent, we do not consider
that a consent authority is required to review the
conveyancing.
184. We made our findings about the visual effects of

the proposal taking into account the proposed mitigation
measures, including proposed planting recommended by
Mr Scott. His landscaping plan included planting on land
outside the subject site, namely on the esplanade reserve,
and an area between the site and the boundary of the rightof-way giving access to the reserve. The question arose
whether planting beyond the site could be the subject of a
condition of consent.
190. In this case the applicant has itself put forward the
landscaping plan, and has acknowledged that it would be
estopped from challenging a condition requiring it to
implement it. We have considered the proposal on the basis
that it would be implemented. To avoid doubt, we expressly
stipulate that if land-use consent is granted, compliance
with a condition requiring that the plan be implemented
would be essential to the consent. In those circumstances
we consider that such a condition could properly be
185. In respect of the esplanade reserve, the Far North

District Council (which administers that reserve) has
26 (1979) 38 P & CR 219 (QBD).

27 For example, Holt v Napier City Council TCPAB Decisions D9560; Campbell v Southland District Council Planning Tribunal Decision W114/
94; Banks v Waikato Regional Council Planning Tribunal Decision A31/95.
108
imposed. A grantee has the responsibility of ensuring that

it can perform all conditions before exercising a consent
to which they are attached.
Paragraph (d) relates to maintenance of public access to

and along the coastal marine area. We find that the proposal
is consistent with that.
Coastal permit conditions
196. Section 7 calls for consideration of maintenance and

enhancement of amenity values, and of the quality of the
environment; and of intrinsic values of ecosystems. We
have addressed substantially similar issues in this decision,
and we find that, subject to compliance with the amended
conditions contemplated, the proposal would be consistent
with those relevant directions in section 7.
191. The conditions proposed by Mr Taylor for a coastal

permit would link the jetty, pontoon and walkway to being
accessory to the fishing lodge; would require public access
over the permit area; would prohibit contamination of the
water; would prohibit permanent mooring of vessels at the
jetty; and would required Regional Council approval of
colours.
197. Section 7(b) directs consideration of efficient use

and development of natural and physical resources. The
appellants in Appeals RMA202/97 and 203/97 contended
that the proposed fishing lodge would not be financially
viable, and called the evidence of a tourism resource
consultant, Mr DAC Bamford, to give his opinion to that
effect. In that regard, their counsel stated
192. Mr Parton suggested requiring a sign on the jetty

stating that it is available for public use, and warning that
care is needed in approaching the jetty due to the foul
ground and shallowness of the adjoining water. Mr Parton
also proposed a condition to the effect that the lodge not
provide guests or staff with jet-skis or the like. We adopt
those additions to the set of coastal permit conditions
suggested by Mr Taylor.
The purpose in producing this evidence is not to invite the

Court to extend its jurisdiction outside the matters it is to
address by reference to the statutory provisions in the Act,
but to highlight concerns about the very specific nature of
the proposal.
193. In summary, we consider that if the resource

consents sought are to be granted, then sets of conditions
should be attached as outlined in this section of the
decision. The detailed drafting could be done initially by
counsel for the parties.
DISCRETIONARY
198. Be that as it may, we hold that section 7(b) does not

call for a consent authority to make a finding whether a
proposal the subject of a resource consent application
would be a commercial success or not. Those questions
are for the commercial market, not for those concerned to
make decisions to achieve promotion of sustainable
management of natural and physical resources. By the
relevant planning instruments, the proposed fishing lodge
is a discretionary activity, and so are the accessory
structures. We do not consider that Mr Bamfords doubts
about the viability of the fishing lodge project should
influence our decision on these appeals.
JUDGMENT
194. We have had regard to such of the matters listed in

section 104(1)(a) of the Act as are relevant to the case. We
have now to make a judgment in terms of section 105(1)(c)
of the Act28 to grant or refuse consent. That judgment has
to be made to achieve the purpose of sustainable
management of natural and physical resources as stated
and defined in section 5 of the Act, and in compliance with
any relevant directions in the other sections of Part II of
the Act, recognising that they are subordinate and accessory
to the purpose of the Act.
199. The meaning to be given to the term sustainable

management is set out in section 5(2):
In this Act, sustainable management means
of natural and physical resources in a way, or at a
rate, which enables people and communities to
provide for their social, economic, and cultural
wellbeing and for their health and safety while
(a) Sustaining the potential of natural and
physical resources (excluding minerals) to
meet the reasonably foreseeable needs of
future generations; and
(b) Safeguarding the life-supporting capacity of
air, water, soil, and ecosystems; and
(c) Avoiding, remedying, or mitigating any
adverse effects of activities on the
environment.
195. In section 6 the relevant provision is paragraph (a)

calling for recognition and provision for preservation of
the natural character of the coastal environment and
protection of it from inappropriate use and development.
Earlier in this decision we have made findings which show
that the proposal would be consistent with that provision.
Paragraph (b) of that section refers to protection of
outstanding natural features and landscapes from
inappropriate use and development. Although much of the
Bay of Islands may qualify as outstanding, we are not
persuaded that Paroa Bay deserves to be so classified. In
any event, we find that the proposed fishing lodge and
associated structures would not be inappropriate there.
28 Section 105(1) was substituted by section 55(1) of the Resource Management Amendment Act 1993.
109
200. We make no judgment on whether the proposed

fishing lodge would be a successful business venture or
not. However if it is, then it would enable the patrons (who
may not themselves own property in the outer Bay of
Islands) to provide for their health, and the employees (and
perhaps other stakeholders in the business) to provide for
their economic wellbeing. Our findings show that, if carried
out in conformity with the amended conditions
contemplated, it would not fail to sustain the potential of
the resources involved, nor fail to safeguard the capacity
of the relevant media and ecosystems, and would avoid
remedy and mitigate any adverse effects of the activities
on the environment. In short, it is our judgment that
granting the resource consent sought subject to those
conditions would be consistent with the achieving the
purpose of the Act, and that those consents should be
granted accordingly. To that extent Appeal RMA 211/97
will be allowed, and Appeals RMA 202/97 and 204/97
disallowed.
201. We invite counsel to submit agreed forms of consents

and conditions to enable us to make a final order to give
effect to this outcome. If counsel are unable to reach
agreement we will consider memoranda identifying the
issues, and will then have to settle the form of the order.
202. The question of costs is reserved.
DATED at AUCKLAND this day of 1999.
D F G Sheppard
Environment Judge
110
111
JUDGEMENT ON: 28-8-1997
IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION (SPECIAL ORIGINAL

JURISDICTION)
WRIT PETITION NO. 998 OF 1994 WITH WRIT PETITION NO. 1576 OF 1994
IN THE MATTER OF:
An application under Article 102(1) and (2)(a) of the Constitution of the Peoples Republic of Bangladesh
-ANDIn the matter of:
Dr. Mohiuddin Farooque
Petitioner in Writ Petition No. 998 of 1994
Sekandar Ali Mondol
..Petitioner in Writ Petition No. 1576 of 1994
Versus
Bangladesh, represented by the Secretary, Ministry of Irrigation, Water Development and Flood Control, Government of
the Peoples Republic of Bangladesh, Bangladesh Secretariat, P.S. Ramna, Dhaka and other
.Respondents in both the writ petitions
Dr. Mohiuddin Farooque, with
Mr. Iqbal Kabir
Mr. Ehsanul Habib
Ms. Bahreen Khan and
Ms. Shabnaaz Zahereen
.for the petitioner in both the writ petitions
Mr. Tofailur Rahman, with
Ms. Sarker Tahmeena Beguma dn
Ms. Sufia Ahammed
..For the respondent Nos. 2-4 in both Writ Petitions.
Heard on: 28-7-1997, 5-8-1997 and 6-8-1997
Judgement on:28-8-1997
PRESENT
MR. JUSTICE KAZI EBADUL HOQUE
AND
MR.JUSTICE A.K. BADRUL HUQ
A.K. BADRUL HUQ, J:
112
1.
The two petitioners of Writ Petition Nos. 998 of 1994
and 1576 of 1994 by two applications under Article 102 of
the Constitution, called in question the activities and
implementation of FAP-20, undertaken in the District of
Tangail apprehending environmental ill effect of a Flood
Control Plan affecting the life, property, livelihood,
vocation and environmental security of more than a million
of people of the District whereupon two separate Rules
were issued calling upon the respondents to show cause as
to why all the activities and implementation of FAP-20,
undertaken in the District of Tangail should not be declared
to have been undertaken without lawful authority and of
no legal effect and or such other order or further orders
passed as to this court may seem fit and proper.
concern on the water resources issue in particular

and the question of environmental management in
general for the country. Studies were made and as a
result of studies, a list of 11 Guiding Principles of
Flood Control has been formulated. In July, 1989 in
Washington D.C., a meeting of the Government of
Bangladesh and some donors was held and it was
agreed that an Action Plan would be undertaken as
a first step for long term Flood Control Progamme
in Bangladesh. On 11 December, 1989, a document
entitled Bangladesh-Action Plan for Flood Control
was placed before the meeting of the foreign donors
in London and Flood Action Plan, hereinafter
referred to as FAP was born. World Bank took up
the responsibility to co-ordinate the activities. To
manage the activities under the FAP, the Flood
Plan Co-ordination Organization, hereinafter
referred to as FPCO, was created by the respondent
No. 1, the Ministry of Irrigation, Water Development
and Flood Control, briefly, MIWDFC. FAP
consists of 26 components of which 11 are main
components consisting of regional and project
oriented activities and 15 are supporting studies
which includes Pilot Project. FAP has been
undertaken initially for 5 years, 1991-1995 but Pilot
Project under it will continue beyond 1997. FAP20 is one of the 15 supporting studies in which the
concept
of
Flood
Control
through
Compartmentalization is to be Tested and hence,
project is called Compartmentalization Pilot
Project, briefly, CPP.
2.
In the two Rules, similar facts and common
questions of law having been involved, those were heard
analogously and are being disposed of by this single
judgement.
3.
In Writ Petition No. 998 of 1994, the petitioner is
Dr. Mohiuddin Farooque, Secretary General, Bangladesh
Environmental Lawyers association, briefly BELA, a
group of environmental lawyers. BELA was registered
under the Societies Registration Act, 1860. The petitioners
has been authorized by a resolution of the Executive
Committee of BELA to represent the same and move
the High Court Division of the Supreme Court of
Bangladesh under Article 102 of the Constitution.
Petitioner claims that BELA has been active since the
year 1991 as one of the leading organizations with
documented and well recognized expertise and
achievement in the field of environment, ecology and
relevant matters of public interest and BELA has
developed itself into an active and effective institution on
environmental regulatory framework with widespread
recognition. Writ Petition No. 998 of 1994 has been
initiated pro bono publico. Initially, the petition was
summarily rejected by the High Court Division on the
ground of locus standi. The Appellate Division has sent
the matter to the High Court Division for hearing on merit
after setting aside the said order of rejection holding that
the petitioner has locus standi to file and maintain the writ
petition.
Within the First two years, the FAP aroused wide

attention for being allegedly anti-environment and
ant-people project. FAP is being accused of not
only for its discrete activities but also for defying
the process and requirements of participatory
Governance manifested in the letters and spirit of
the Constitution, the law of the land and 11 Guiding
Principles of Flood Control. The FAP, instead of
being the largest environmental management
programme of the country, the same has become the
most controversial programme ever undertaken in
this land for committing various illegalities,
violation of laws and posing ecological threats. The
FAP-20 Project is being implemented in Tangail
Sadar, Delduar and Bashail Police Stations of the
District of Tangail encircling an area of 13,169
hectares including Tangail Town and encompassing
176 villages of 12 Unions, 45,252 households
according to 1991 census, 32 beels and 46 canals.
The Project site is under the direct confluence of
the rivers Dhaleswari, Lohajang, Elanjani and Pongli
estuaries of the river Jamuna. FAP-20 is likely to
adversely affect and uproot about 3 lacs of people
within the project area and the extent of adverse
impact outside the project area may encompass more
than a million human lives, the natural resources
and natural habitats of men and other flora and fauna.
4.
In Writ Petition No. 1576 of 1994, the petitioner is
Sekandar Ali Mondol, a farmer, living in the village of
Khaladbari under Police Station Tangail Sadar in the
District of Tangail for generations and owns small piece
of ancestral land, part of which he uses as homestead and
part for cultivation for subsistence and cash earning of his
family. The petitioners land is under the process of
acquisition under FAP-20 project.
5.
Facts leading to the issuance of the two Rules are
summarized as under:
(a)
The two consecutive severe floods of 1987 and 1988

in Bangladesh aroused national and international
113
The total impact area is, although large, only 210

hectares of land are being acquired without
complying with the requirements of law. The
experimental project impact area includes two
Mosques, namely, the Attia Mosque the picture
of which appears on Taka 10 - note andKhadem
Hamdani Mosque which are in the list of
archaeological resources and are protected against
misuse, restriction, damage etc. under the Antiquities
Act, 1968 in the spirit of Article 24 of the
Constitution.
(c)
(d)
Management Policy and Planning of Flood Control

The fate of the legal rights and interest of the people
of Bangladesh is being arbitrarily decided by the
respondents in total disregard of the law and the legal
system. Local peoples resistance and objection have
been severely undermined and instead, oppressive
and deceitful measures had been adopted by the
respondents.
(e)
There was no peoples participation except some

show meetings which were managed through
manipulation. The local people were not at all
afforded any opportunity to submit their objections
and, thus, the aggrieved people have been deprived
of their legal rights and legitimate compensation and
also to protect their lives, professions and properties.
The FAP-20' have been undertaken violating the
laws of the land including the National
Environmental Policy, 1992. Scope of the so called
land acquisition matters, if lawfully applied, only
related to a small number of people and lands i.e.
210 hectares compared to the total physical and
ecological area to be affected due to various direct,
indirect and casual impact of the project. The fate
of the greater section of the people whose lands and
other belongings, rights and legitimate interest
would be adversely affected, both within and outside
the project area, have been left out of any
consideration. By undertaking the experimental
FAP-20 Project, the respondents have ultimately
infringed and would further, inevitably infringe the
Fundamental Rights to life, property and profession
of lacs of people within and outside the project area.
The FAP-20 activities are contrary to the various

provisions of law of the land and violative of the
Fundamental rights enumerated in Part-III of the
Constitution. The affected people of the FAP-20
project area are entitled to the protection under
Article 28(1), 23, 31, 32 and 40 and 42 of the
Constitution. It is emphasized that the FAP-20
project is being implemented in gross violation of
the provisions contained in The Conservation of Fish
Act, 1950, (E.B. Act No. XVIII of 1950), The
Embankment and Drainage Act, 1952, (East Bengal
Act I of 1953), The Antiquities Act, 1968, The
Acquisition and Requisition of Immovable Property
Ordinance, 1982 (Ordinance No. II of 1982) and The
Environment Conservation Act, 1995.
6.
Respondent No. 1, Ministry of Irrigation, Water
Development and Flood Control, Government of
Bangladesh, in spite of service of notice upon it, did neither
appear nor did oppose the Rule.
7.
Respondent Nos. 2-4, the Chief Engineer, Flood Plan
Coordination Organization, The Chairman, Bangladesh
Water Development Board and the Project Director, Flood
Action Plan Component-20, Compartmentalisation Pilot
Project, respectively entered appearance in both the Rules
and opposed the Rules by filing two affidavits-inopposition. The statement made in the two affidavits are
almost common.
The Bangladesh Water Development Board briefly,

BWDB has been vested by the Bangladesh Water
and Power Development Boards Order, 1972
(Presidents Order No. 59 of 1972), the statutory
right of control over the flow of Water in all rivers
and canals of Bangladesh and the statutory
responsibility to prepare a comprehensive plan for
the control of flood and the development and
utilization of Water Resources of Bangladesh. Since,
FPCO is neither under BWDB nor created by it,
nor created in the exercise of any authority of any
law of the land, the same got no legal authority to
plan, design or to undertaken any project falling
within the domain of the BWDB or other statutory
agencies and as such all the activities coordinated
by and conducted under FPCO are illegal and
unlawful. The FPCO was created by the then
regime of 1989 by passing all legal and institutional
framework sanctioned by the law of the land, and
the BWDB. The FPCO, therefore, illegally
encroached upon the public statutory domain of
other agencies responsible for sustainable Water
8.
In the affidavits-in-opposition, it is stated that FAP
is a very ambitious programme undertaken by the
Government of Bangladesh with the assistance of the
Foreign counters and agencies. The programme is very
important for the developmental work and the same will
have far reaching effect in the developmental programme
of Bangladesh. Compartmentalization Pilot Project
CPP, has completed an elaborate Environmental Impact
Assessment, shortly EIA. EIA for CPP shows that
project will have more positive impact compared to
negative one. The only negative impacted environmental
issue will be a slight loss of seasonal wetlands and its
habitats. To compensate, the project is implementing a
Community Wet-land conservation Programme in 3 Beel
areas, namely, Jugini Bara and Garindha Beels. It is stated,
further, that since a long time, a good many Water
Development Projects have been implemented in the
country and no where there is any allegation of any damage
to any ecological site due to interventions caused by the
project and there is no chance of any damage on any
114
archaeological resources in the project area due to

implementation and physical interventions under the
projects.
FAP-20 and FPCO adversely affecting and injuring

more than a million people in the District of Tangail by
way of displacement, damage to soil, destruction of natural
habitat, of fishes, flora and fauna and creation of drainage
problem threatening human health and worsening
sanitation and drinking water supplies and causing
environmental hazards and ecological imbalance but also
alleges the violation of Article 23, 24 28, 31, 32, 40 and
42 of the constitution and the laws, such as, the Bangladesh
Water and Power Development Boards Order 1972,
(Presidents Order No.59 of 1972), The Embankment and
Drainage Act, 1952 (East Bengal Act I of 1953), The
Protection and Conservation of Fish Act, 1950, The
Antiquities Act 1968 and the Acquisition and Requisition
of Immovable Property Ordinance (Ordinance No. II of
1982) and other laws.
9.
Further statements are that CPP is not constructing
new embankments except retirements at places and resectioning at other places. The destruction of fish by
hindering their access to the swamping grounds does not
hold true.
10. In the affidavits-inopposition it is asserted that the
planning, designing and implementation of physical
interventions under FAP-20 are being done by
Bangladesh Water Development Board while FPCO is
only acting as a monitor of the project activities on behalf
of the Ministry maintaining liaison with the donors on
behalf of the Government. It is pleaded that in all stages
of project formulation, all group of people concerned and
affected by the project have been consulted and their
participation have been ensured. There had been many
meetings attended by Union Parishad Chairman,
Journalists, Elite, Professionals and concerned Government
officials. Moreover, 3 seminars were held at Tangail
wherein Members of the Parliament of the locality
participated and expressed their views regarding the
project. Views of the elected representatives from the local
level upto the National level have been taken. All possible
groups of people likely to be affected as a result of
implementation of the Project, such as, fishermen, landless
people and women have been consulted before starting
any sort of physical intervention in the project and their
participation in many activities of the project have been
ensured.
13. Dr. Mohiuddin Farooque, first, directed his effort to

assail the formation of FPCO. He submitted that FPCO
is neither created under the authority of Bangladesh Water
and Power Development Boards Order, 1972, nor created
in the exercise of any authority of any law of the land and
FPCO got no authority and legal status to plan, design
and undertaken any project falling within the domain of
BWDB and other statutory agencies and the same, thus,
encroached upon the public statutory domain of other
agencies responsible for sustainable Water Management
Policy and Flood Control.
14. In repelling the said submission, Mr. Tofailur
Rahman, learned Advocate for the respondents, contended
that the planning, designing and physical interventions
under FAP-20 are being done by BWDB while FPCO
is only acting as a monitor of the project activities on behalf
of the Ministry of Irrigation, Water Resources and Flood
Control.
11. Further assertions made in the affidavits-inopposition are that the local people welcomed the project.
Many local News Papers published opinion of the local
people concerning the project which indicates the positive
attitude of the people towards the project. It is also asserted
that the project is arranging to pay compensation to those
land owners who lost their lands, and, in many cases, the
contractors have implemented works on having consent
from the affected land owners. The land acquisition
procedure for FAP-20 is strictly in conformity with the
existing legal procedure of the country and the project is
not following anything in the matter of land acquisition
which contravenes the existing legal procedure. It is
pleaded that considerable provisions in the name of
mitigation measure are there in the FAP-20 project to
mitigate the needs and the suffering of all people affected
by the execution of FAP-20, be it displacement of people
or any other inconvenience that may arise as a result of
execution of the project.
15. To appreciate the contentions raised from both the

sides, it is necessary to extract Article 9 of Bangladesh
Water and Power Development Boards Order, 1972.
Article 9 runs as follows:
9. (1) The Water Board shall prepare, for the
approval of the Government a comprehensive
plan for the control of flood in, and the
development and utilization of Water
resources of Bangladesh.
( 2) The Board shall have power to take up any
work as contemplated in clause (3) or any
other work that may be transferred to it by
the Government and to realize levy thereof
subject to the approval of the Government
(3) The Board may frame a scheme or schemes
for the whole of Bangladesh or any of the
following matters, namely:
12. Dr. Mohiuddin Farooque, learned Advocate

appearing in person in Writ Petition No. 998 of 1994 and
on behalf of the petitioner of writ Petition No. 1576 of
1994 not only challenges the formation and activities of
(a) Construction of dams, barrages, reservoirs and

other original works; irrigation, embankment
115
and drainage, bulk water supply to

communities and recreational use of water
resources;
(b) Flood control
management;
including
18. The next contention raised by Dr. Farooque is that

the CPP has been unlawfully planned and designed by
the respondents without adapting appropriate institutional
framework prescribed by law and the implementation of
the said project undertaken in the name of FAP-20 is
against public interest and also, undertaken in total
disregard of the Guidelines of FAP and FPCO. It is also
urged that the participation of the people within the project
area have not at all been ensured in implementing the
project and the Pilot Project is absolutely illegal and
without lawful authority.
water-shed
(c) Prevention of salinity, water congestion and

reclamation of land;
(d) Except within the limits of sea-ports,
maintenance, improvement and extension of
channels for inland water transport, including
dredging of channels, but excluding all such
operations as may be assigned by the
Government to any other agency;
19. It is canvassed, further, from the side of the

petitioners that the FAP-20 is likely to affect adversely
and uproot a large number of people within the project
area and the extent of adverse impact outside the project
area will encompass human lives, natural resources and
the natural habitats of human and other beings. Contention
has been also advanced that the affected people were not
afforded any opportunity of being heard and the objections
and protests raised by the people have been totally ignored
by the respondents who were duty bound to take into
consideration the fate of the people, directly, indirectly and
casually affected by the implementation of FAP-20 and,
thus, the Fundamental Rights Guaranteed under Article 31,
32, 40 and 42 had been grossly violated.
(e) Regulation of channels to channels to

concentrate river flow for more efficient
movement of water, silt and sand, excluding
all such operations as, in the opinion of the
Government, may be carried out by any other
agency
16. Sub-article (1) of the said article 9 provides that

Water Board shall, for the approval of the Government,
prepare comprehensive plan for control of flood in and
the development and utilization of water resources of
Bangladesh. Sub-article (2) enjoins that the Board shall
have power to take up any work as contemplated in clause
3 or any other work that may be transferred to it by the
Government. Sub-article (3) states that Board may frame
scheme or schemes for construction of dams, barrages,
reservoirs and other original works, irrigation, embankment
and drainage, bulk water supply to communities, flood
control including water shed management. Prevention of
salinity, water congestion, reclamation of land,
maintenance, improvement and extension of channels for
inland water transport, including dredging of channels and
regulation of channels to concentrate river flow for more
efficient movement of water, silt and sand excluding all
such operations as in the opinion of the Government, may
carried out by any other agencies.
20. In reply to the said contentions raised from the side

of the petitioners, Mr. Tofailur Rahman, learned Advocate
submitted that the idea of FAP has been conceived by
people having highest degree of competence in the relevant
field and suitability of that idea is being judged through
15 supporting studies and CPP is one of those studies
which will help in judging environmental suitability of the
idea of FAP and FAP-20 is aimed at experimenting the
concept of Compartmentalization and the project will give
maximum benefits to the farmers of the project area and
the same will have far reaching effect in the economic
development of the country. It is the further contention of
Mr. Tofailur Rahman that the peoples participation in
undertaking and implementing the Pilot Project has been
ensured and the people of the locality welcomed the project
and no Fundamental Right guaranteed under the
Constitution has been violated.
17. On reading of the above provisions, it is evidently

clear that Water Board is a State controlled statutory
corporation and the controlling authority of Water Board
is the Government, that is, the Ministry of Irrigation, Water
Resources and Flood Control, respondent No.1. Water
Board, since, is under the control of the said Ministry and
FPCO is stated to be only acting as a monitor of the project
activities on behalf of the said Ministry, it cannot be said
that the FPCO got no authority to plan, design and
undertake the project falling within the domain of Water
Board. It is significant to note that Water Board is not
challenging the authority of FPCO? Thus, we have no
manner of hesitation to hold that the petitioners got no
right nor any legal authority to challenge the authority of
FPCO. The contention raised, though, may be attractive,
does not appear to have any substance.
21. Since, the violation of Fundamental Rights guaranteed

under Article 31, 32, 40 and 42 of the Constitution has been
seriously alleged by the petitioners, it would be profitable
to quote Article 31, 32, 40 and 42 of the Constitution.
22.
Article 31 of the constitution reads as under:

31. To enjoy the protection of the law, and to be
treated in accordance with law, and only in
accordance with law, is the inalienable right of
every citizen, wherever he may be, and of every
other person for the time being within Bangladesh,
and in particular no action detrimental to the life,
liberty, body reputation or property of any person
shall be taken except in accordance with law.
116
23.
Article 32 runs as follows:
essential to harness and properly utilize all kinds of national

resources and to attain the goal of environmental
development and improvement.
32. No person shall be deprived of life or personal

liberty save in accordance with law.
24.
29. It is the contention from the side of the petitioners

that instead of peoples participation, the FAP-20 is being
implemented on the face of the peoples protest without
attempting to redress peoples grievances. This contention
was resisted by the respondents with the assertion that the
people have been consulted and there has been peoples
participation in implementing the project. The petitioners
had annexed applications addressed to the Water
Development Authority by the villagers of Rasulpur village
and also to the Deputy Commissioner, Tangail on behalf
of local people of Tangail for stopping the activities of
FAP-20 alleging that the people of the locality would be
affected by way of displacement, damage to the soil and
creation of environmental hazards. The petitioners have
also annexed some paper cuttings showing staging of
demonstration, procession and holding of meetings by
thousands of male and females. The letters and paper
cuttings are Annexure-F series. The respondents, on the
other hand, annexed some paper cuttings in the affidavitsin-opposition of the Writ petition No. 1576 of 1994
evidencing peoples participation and peoples support for
the project but no paper had been annexed in the affidavitin-opposition filed in Writ Petition No. 998 of 1994. The
respondents, also, annexed a copy embodying expression
of reaction of the people of the District of Tangail in view
of a Legal Notice by Bangladesh Environmental Lawyers
Association asking to stop the activities of FAP-20 and
the same was signed by Chairman, Tangail Pourashava,
President of Awami League, Tangail District Unit and also
the Secretary of District Unit of Jatiya party ad some other
persons holding the offices of President and Secretary of
various organizations and associations of the District of
Tangail. The respondents also annexed some papers
showing holding of meetings and seminars for peoples
participation in FAP-20 project.
Article 40 is as follows:
40. Subject to any restriction imposed by law,
every citizen possessing such qualifications, if any,
as may be prescribed by law in relation to his
profession, occupation, trade or business shall have
the right to enter upon any lawful profession or
occupation, and to conduct any lawful trade or
business.
25.
Article 42(1) is to the following terms:

42.(1) Subject to any restrictions imposed by law,
every citizen shall have the right to acquire, hold,
transfer or otherwise dispose of property, and no
property shall be compulsorily acquired,
nationalized or requisitioned save by authority of
law.
26. Article 31 gives right to a citizen to enjoy the

protection of law and to be treated in accordance with law.
It gives the guarantee that no action detrimental to the life,
liberty, body, reputation or property of any person shall be
taken except in accordance with law. Article 32 mandates
that no person shall be deprived of life or enter upon any
lawful profession or occupation and to conduct lawful trade
or business. Article 42 commands that every citizen shall
have the right to acquire, hold, transfer or otherwise dispose
of the property and no property be compulsorily acquired,
nationalized or requisitioned save by authority of law. The
question of violation of fundamental right raised by the
petitioners will be considered after deciding other points
raised.
27. Peoples participation and their commitment in all
developmental activities has been enshrined in the Guiding
principles of FAP, Bangladesh Action Plan for Flood
Control published by FPCO on March, 1993 and the
National Environmental Policy of 1992.
30. The assertions by the petitioners as to the nonparticipation of the people of the locality in the
implementation of project and the counter assertion by the
respondents as to participation of the people in the
implementation of the project, thus, have become a
disputed question of fact and this court will not embark
upon an investigation of the same in writ jurisdiction.
Judicial review is generally not available for ascertaining
facts but for a review of law emanating from accepted facts.
Moreover, Guidelines do not have the force of law and no
legal right is created on the basis of Guidelines and no
right, also, can be enforced on the basis of Guidelines in
the courts of law.
28. In principle No.l1 of 11 Guiding Principles of FAP,

maximum possible popular participation by the
beneficiaries was suggested to be ensured in planning,
implementation, operation, and maintenance of flood
protection infrastructures and facilities. In the Guidelines
for peoples participation on Bangladesh Action Plan for
Flood Control published by FPCO it is stated that to
ensure sustainable Flood Control, Drainage and Water
Development, it is essential that local people participate
in full range of Programme activities including need
assessment, project identification design and construction,
operation and maintenance, monitoring and evaluation. The
National Environmental Policy, 1992 states that in the
context of environment, the Government recognizes that
the active participation of all the people at all level is
31. Dr. Mohiuddin Farooque next addressed us raising

the contention that all activities envisaged and being carried
out by the FPCO through the FAP are subject to the
provisions of the Embankment and Drainage Act, 1952
117
(5) that any sluice or water-course should be made

or that any water-course should be altered for the
improvement of the public health, or for protection
of any village or cultivatable land;
and FAP-20 has not followed the prescribed provisions

of law contained in the said Act. No objection was recorded,
no Notification in the official gazette has been published
and no compensation has been assessed as enjoined in
section 28, 30 and 31 of the said Act of 1952.
(6) .he shall prepared or cause to be

prepared estimates of the cost of such works,
including such works, including such proportion
of the establishment changes as may be changeable
to the works in accordance with the prescribed
rules or as may be specifically directed by the
Provincial Government as the Authority, together
with such plans and specifications of the same as
may be required. He shall also prepare or cause
to be prepared from the Survey Map of the district,
a map showing the boundaries of the lands likely
to be benefited or affected by the said acts and
works and he shall issue a general notice of his
intention to execute or cause to be executed such
works.
32. Mr. Tofailur Rahman, on the other hand, only,

submitted that whether provisions of the Embankment and
Drainage Act, 1952 have been complied with or not is a
disputed question of fact and the High Court Division
cannot enter upon such disputed question of fact.
33. The East Bengal Embankment and Drainage Act,
1952 was enacted to consolidate the laws relating to
embankment and drainage and to make better provision
for the construction, maintenance, management, removal
and control of embankments and water-courses for the
better drainage of land and for their protection from floods,
erosion and other damage by water.
Section 8 reads thus:
34. It will be useful to look to the relevant provisions of

law embodied in the Act of 1952. Relevant portion of
section 5 is quoted below:
8. Such general notice shall be in the prescribed

form stating, as far as possible, the prescribed
particulars of all lands which are likely to be
affected by the proposed work and to be chargeable
in respect of the expenses of executing the same
and shall be published in the prescribed manner.
A copy of the said estimates, specifications and
plans together with a cop of the maps aforesaid,
shall be deposited in the office of the Engineer
and shall be open to the inspection of the person
interested who shall be allowed to take copies
thereof and to file objections, if any, against the
execution of the proposed work, within thirty days
from the date of the publication of such notice.
5. Except as otherwise provided in this Act, all

plots or parcels of land which, before the
commencement of this Act, have been used for
the purpose of obtaining earth or other materials
for the repair of any public embankment, watercourse or embanked two-path as aforesaid, or
which by agreement have been substituted for such
lands, shall be deemed to be at the disposal of the
Provincial Government or the Authority for such
compensation for the use of removal of such earth
or other materials. The Engineer may cause all
such plots or parcels of land to be ascertained,
surveyed and demarcated.
36.
Section 9 is as follows:
9. The Engineer shall, on the day appointed for
the hearing, or on any subsequent day to which
the hearing may be adjourned, hold an enquiry
and hear the objections of any persons who may
appear, recording such evidence as may be
necessary.
35. Relevant portions of section 7(4) and (5) are

extracted below:
7. Subject to the provisions of Part III, whenever
it shall appear to the Engineer that any of the
following acts should be done or works (including
any work of repair) executed, that is to say:
37.
(1) .
(2) .
(3) .
Section 27 runs thus:

27. Whenever, in the course of proceedings under
this Act, save as hereinafter provided, it appears
that land is required for any of the purposes thereof,
proceedings shall be forthwith taken for the
acquisition of such land in accordance with the
provisions of the Land Acquisition Act, 1894, or
other law for the time being in force for the
acquisition of land for public purpose.
(4) hat the line of any public embankment should

be changed or lengthened, or that any public
embankment should be renewed, or that a new
embankment should be constructed in place of
any public embankment, or that any embankment
should be constructed for the protection of any
lands or for the improvement of any water-course,
or that a sluice in any public embankment should
be made; that any sluice or water-course should
be made, or that any water-course should be altered
for the improvement of the public health, or for
the protection of any village or cultivatable land ;
38.
Section 28 reads thus:

28. Subject to the provisions of section 5,
wherever any land other than land required or taken
by the Engineer, or any right of fishery, right of
drainage, right of the use of water or other right
118
of property, shall have been injuriously affected

by any act done or any work executed under the
due exercise of the powers or provisions of this
Act, the person in whom such property or right is
vested may prefer a claim by petition to the Deputy
Commissioner for compensation:
41. Part-III of the Act of 1952 prescribes procedure in

cases of imminent danger to life or property.
42. Authority in the Act of 1952 is defined in section
3(a) the said Act which is as follows:
32(a). authority means East Pakistan Water and
Power Development Authority established under
section 3 of the East Pakistan Water and Power
Development Authority Ordinance, 1958".
provided that the refusal to execute any work for

which application is made shall not be deemed to
be an act on account of which a claim for
compensation can be preferred under this section.
39.
43. The East Pakistan Water and Power Development

Authority Ordinance, 1958 has been replaced by the
Bangladesh Water and Power Development Boards Order,
1972 (Presidents Order No. 59 of 1972). So, the authority
as defined in section 3(a) of the Act of 1952 as it stands
now is Bangladesh Water and Power Development Board.
Section 30 states thus:

30. When any such claim is made, proceeding
shall be taken for determining the amount of
compensation, if any, which should be made and
the person to whom the same should be payable,
as far as possible, in accordance with the provision
of the Land Acquisition Act. 1894, or other law
for the time being in force for the acquisition of
land for public purpose
40.
44. From a reading of the above provisions contained

dint the Act of 1952, it appears that the prescribed laws in
implementing and carrying out the activities of FAP-20
project have not been followed. No notice had been
published, no objection had been recorded, no procedure
for hearing of the objection had been followed, no
procedure has been made for putting forward the claim of
compensation for damages for the loss of properties and
deprivation of enjoyment of fishery as required under
section 28 of the said Act. Procedure contained in section
30 and 31 of the Act has not been followed. In both the
writ petitions, there is clear assertion that the provisions
embodied in The Embankment and Drainage Act of 1952
had not at all been followed. This assertion has not been
controverted by the respondents in the affidavit-inopposition. There was no assertion that the provisions and
procedure of law contained in the Act of 1952 had been
followed. Only there is a statement that the land acquisition
procedure for FAP-20 is strictly in conformity with the
existing legal procedure of the country like other
developmental project and the project is not following
anything in the matter of land acquisition which
contravenes the existing legal procedure. The respondents
in the affidavit-in-opposition against Writ Petition No. 1576
of 1994 only annexed Annexure-1 series showing initiation
of acquisition proceeding under Ordinance No.II of 1982
with respect to 1.36 acres of land belonging to Yousuf Ali
and others. No paper had been annexed in the affidavit-inopposition nor any paper had been annexed in the affidavitin-opposition nor any paper had been produced before this
Court showing fulfillment of requirements of law embodied
in the Act of 1952. So, it is manifestly clear that the
provisions and procedure of law embodied in The
Embankment and Drainage Act of 1952 had not, at all,
been followed. It is worth noting that the above provisions
are aimed at assisting citizens to realize their rights,
including the right to property guaranteed under the
Constitution and those provisions and procedure are, as
such mandatory.
Section 31 is quoted under31. In every such case which is referred to the

judge and assessors or to arbitrators for the purpose
of determining whether any, and if so, what amount
of compensation should be awarded, the judge and
assessors or the arbitrators:
(i) Shall take into consideration(a) the market-value of the property or right
injuriously affected at the time when the act
was done or the work executed,
(b) the damage sustained by the claimant by
reason of such act or work injuriously
affecting the property or right,
(c) the consequent diminution of the marketvalue of the property or right injuriously
affected when the act was done or the work
executed, and
(d) whether any person has derived, or will
derive, benefit from the act or work in respect
of which the compensation is claimed or from
any work connected therewith, in which case
they shall set off the estimated value of such
benefit, if any, against the compensation
which would otherwise be decreed to such
person; but
(ii) shall not take into consideration(a) the degree of urgency which has led to the
act or work being done or executed, and
(b) any damage sustained by the claimant, which
if caused by a private person, would not in
any suit institute against such person justify
a decree for damages.
119
45. Referring to Article 11(1)(c) of Bangladesh Water

and Power Development Boards Order, 1972, argument
has been advanced that the said Article, though, requires
that every scheme prepared under clause 3 of Article 9
shall be submitted for approval to the Government with a
statement of proposal by the Board for the re-settlement
or re-housing, if necessary, of persons like to be displaced
by the execution of the scheme no scheme for re-settlement
or re housing of the persons likely to be displaced by the
execution of the scheme has been made in FAP-20 project.
It as argued that there is every likelihood that by the
implementation of the project, people of the locality will
be displaced and a scheme for re-settlement or re-housing
of those persons likely to be displaced is a requirement of
law.
of 1972 has been submitted to the Government. Bangladesh

Water Development Board got the responsibility and duty
also to prepare a comprehensive plan for the re-settlement
and re-housing of persons likely to be displaced by the
execution of the project at which the Water Board does
not appear to have done. The provisions embodied in
Article 11, therefore, does not appear to have been followed
in implementing FAP-20' project.
49. The petitioners next challenged the compatibility of
the FAP-20 project. It is argued that the respondents
attempt to experiment with the peoples lives and properties
under FAP-20 without following appropriate, compulsory
and mandatory provisions for adequate accountability
would lead to a denial of the rights of the people. It is
further urged that the respondents got no legal right to
conduct experiment in the name of FAP-20 risking the
lives and properties of lacs of people including significant
changes in the environment and ecology. The Evaluation
report, 1993 of FAP, Bangladesh Country Report for the
United Nations Conference on Environment and
Development (UNCED) Brazil, 1992, the speech made by
Mr. Saifur Rahman, former Finance Minister of
Government of Bangladesh in the Third Conference of
Flood Action Plan in 1993 held in Dhaka and some other
documents had been referred to in this context.
46. In reply, it is contended from the side of the

respondents that an important and considerable provisions
in the name of mitigation measure has been incorporated
in FAP-20 to mitigate the needs and sufferings of all
people affected by the execution of FAP 20 in the event
of any displacement of people or any other inconvenience
that may arise as a result of execution of project.
47. In order to appreciate the contentions raised, it is
appropriate to quote the relevant provision of law contained
in Art. 11 (1) (c) of the Boards order, 1972 which runs
thus:
50. The FAP-20 project is an experimental project for

developing controlled flooding mechanism. Annexure-N
is Evaluation report, 1993 of Flood Action Plan,
Bangladesh. The extract of Civil Engineering aspect of
the said report is as follows:
11 (1) Every scheme prepared under clause (3)

of Article 9 or clause (3) of Article 10 shall be
submitted, for approval, to the Government with
the following information:-
Because FAP-20 is a Pilot Project, because

experience with current practice in Water
Management Projects indicate a low level of
design, implementation and maintenance, and
because specially the poor are vulnerable to the
effects of possibly unreliable water works, it is
entirely appropriate to demand high standards in
FAP-20 technical experiments.
(a)
(b)
(c)a statement of proposal by the Board for the
re-settlement or re-housing if necessary of persons
likely to be displaced by the execution of the
scheme.
It appears that FAP-20 makes no use of certain

aspects of modern planning and design such as
risk analysis, sensitivity analysis, integration of
operation and maintenance in the design and
documentation system. If applications of these
aspects of modern planning and design should have
been impossible, it would a priori seem
irresponsible to move on the implementation.
Article 10 is not relevant for the present purpose.

Article 9 has been extracted above and the same,
thus, is not quoted here.
48. The respondent in the affidavit-in-opposition filed

in Writ Petition No. 1576 of 1994 annexed 1 page
photocopy of page No.49 of Revised Technical Assistance
Project Proform (TAPP) of FPCO, Ministry of Irrigation,
Water Development and Flood Control. It is pointed out
here that nothing can be gathered or understood about the
said Assistance Project. In the affidavit-in-opposition,
nowhere is it stated that before going for implementation
of FAP-20' project or even during the implementation
stage, the provisions contained in Article 11 of the said
Order of 1972 had been complied with and a statement of
proposal by the Board for re-settling or re-housing of
persons likely to be displaced by the execution of the
scheme enjoined in Article 9(1) and (3) of the said Order
51. Annexure-L is a Resolution of European Parliament

being No. Doc/EN/RE/230/230343 dated 23 June 1993
adopted on 24 th June 1993.
52.
Resolution No. 5 is hereunder:

5. Criticizes the fact that the preliminary studies
have not sufficiently taken into account the full
extent of the harm caused by previous attempts
to control floods by constructing embankments
120
and the positive role of annual river flooding for

soil enrichment, navigation, ground water
exchange, biodiversity and wetlands, agricultural
production and floodplain fisheries.
53.
International Workshop on South Asian Meeting on Flood,

ecology and culture: In the context of livelihood struggles
of rural communities held at Bishnapur, a quiet village
under Delduar Police Station in the District of Tangail.
Resolution No. 7 reads thus:
The Food and Agriculture Minister speaking in the

workshop as Chief Guest said that the debate with the donor
is whether the Government would endorse the ready made
prescription of the donor to go for building more and more
embankments or they would agree to the proposal of the
Government for dredging the rivers. The Minister further
said the Government considers dredging of rivers and reexcavation of water bodies as the ultimate solution of
flooding and the Prime Minister herself is trying to make
the funding agency understood the multifarious benefits
of the strategy. The Minister in this regard also quoted
former Finance Minister as saying that the raising of
embankment on the river Manu had endangered the life of
the neighborhood.
7. Stresses the urgency of changing the FAPs

classification within the World Banks Project
Scheme from category B to category A, requiring
full environmental assessment for projects which
appeared to have significant adverse effect on the
environment.
54.
Resolution No. 8 runs as follows:

8. Calls for EC involvement in the FAP only
on the following conditions:
(a)
(b)
an adequate institutional framework for the FAP

should be guaranteed, in which flexibility, an
interdisciplinary approach, improved information
and an improved learning capacity are key
components,
58. In this context, the Bangladesh Country Report for

United Nations Conference on Environment and
Development (UNCED), Brazil, 1992, published by
Ministry of Environment and Forest, Government of
Bangladesh in the month of October, 1991 may, also, be
looked into. Some extracts of the Report are given below:-
the full involvement of local communities in project

planning, implementation and management in
agreement with the World Banks own explicit point
of view.
(c)
a far-reaching interdisciplinary approach, taking

effective account of the implications for the
environment and for fisheries in addition to
economic and technical aspects,
(d)
The social and economic rights of any people to be

resettled must be fully respected.
55.
Resolution No. 11 is quoted hereunder:
Embankments have been employed as one

possible solution to controlling floods, and several
thousands of kilometers have been built in
Bangladesh. The aim of most of these
embankments is to modify the water regime to
reduce crop losses, allow more intensive land use
and, in recent times, the cultivation of higher
yielding rice varieties which require some measure
of water control.
However, these structures have adversely
affected the utilization of resources in other
sectors. Embankments can cause severe
environmental problems such as (i) impede the
reproductive cycle of many aquatic species and
thus reduce productivity of inland and to some
degree marine fisheries, (ii) induce water logging
as tidal rivers silt up after they have been
embanked, (iii)induce changes in river
morphology, such as increasing scour rates in
the embanked areas and consequently increasing
deposition rates downstream. Some tidal rivers
and creeks in the Khulna area have silted up
following construction of embankments
(polders) on adjoining land leading to perennial
water logging of land inside the polders. Such
water logging could induce iron toxicity in soils,
and, in some areas, sulphur accumulation leading
to extreme soil acidity.
11. Stresses that, for the protection of Urban areas,

construction could be started only on condition
that there is a provision that maintenance will be
carried out adequately.
56. Annexure-0 is a paper cutting of the speech of Mr.

Saifur Rahman, the former Finance Minister, published in
the Bangladesh Observer on 18 May, 1993 in the Third
Conference on the Flood Action Plan, 1993 held in Dhaka.
The Finance Minister in his speech in the Conference
questioned the feasibility of the gigantic Flood Action Plan
and suggested regional approach in tackling the problem
of cataclysmic flooding. The Minister further criticized the
multi-million dollar FAP programme for its continued
concentration and studies. He favoured giving due
consideration to environment and all other related issues
which might affect the people in the Flood Action Plan.
Displacement of Inland Capture Fishery

Despite the importance of fisheries in terms of
nutrition, employment, and its contribution as an
open-access resource, Bangladeshs inland
fisheries have been displaced and disrupted by
agriculture, flood control, road embankments, and
57. Reference may also be made to a speech delivered

by Ms. Matia Chowdhury, Food and Agriculture Minister,
Government of Bangladesh on 19 August, 1997 in an
121
other land uses. As a result of these interventions,

inland capture landings have been declining at a
steady rate since 1983. This economic loss has
been offset at the national level by increased
marine catches and shrimp culture exports.
However, the decline in the inland capture fisheries
has significant nutritional consequences for many
people, since capture fisheries are a major openaccess resource for the poorer segments of the
population and often the only source of protein,
essential minerals and vitamins. A large number
of children in poor families become blind every
year because of improper and inadequate diet.
maintenance and the target achievements, hence, remained

too far from realization. Since 1960, a huge fund had been
spent on water development project like flood control and
drainage project. Despite this, the benefits have been much
less than planned and projected. Embankment alignments
were sometimes poorly planned leading to failure and
frequent retirements. The multiple use of embankments
was rarely taken into consideration at the planning stage.
Drainage project suffer from severe drainage congestion
due to faulty hydrological assessments and the absence of
an adequate drainage network and the lack of proper
maintenance after the construction of embankments. A
common symptom of drainage problem is public cut and
these are often so serious that they compromise scheme
viability. In this context, it should not be lost sight of that
most of the period, since the later part of the year 1958,
except for a short interregnum from the year 1972-75, the
country was virtually under military rule, sometimes, open,
sometimes, concealed and bureaucracy ruling supreme and
the people or their representatives having no say in the
planning or implementation of developmental programmes,
specially those for controlling flood problems. Since, there
is democratic Government from the year 1991, it is
expected that people friendly developmental schemes,
specially for controlling flood problem, would be under
taken and implemented in accordance with the laws of the
land. To formulate policy is the affairs and business of the
Government and Court cannot have any say in the matter.
Court can only see whether in the matter of implementation
of any scheme, the laws of the land has been violated or
not.
Relevant portion of the Report is Annexure-G1.

59. Annexure-G is recommendation of the Open Forum
on FAP organized by the Institution of Engineers of
Bangladesh.
Recommendation Nos. 2 and 3 run as under:
2. Since flooding often results form drainage
congestion, canal and river digging/dredging
should be examined more favourably,
3. The performance of past flood control and
drainage projects should be reviewed thoroughly.
Social and environmental impacts of these projects
are to be assessed scientifically.
60. Annexure-G4 is a Report of the National

Conservation Strategy of Bangladesh published by
Ministry of Environment and Forest, Government of
Bangladesh. In the said Report, 5.9.2.2 is on Flood Control
and Drainage Projects which are extracted below:
62. It is submitted from the side of the petitioners that

the natural and ecological changes that would entail due
to FAP-20 project will threaten and endanger two national
archaeological resources namely, the Attia Mosque and
the Kadim Mamdani Mosque which are in the list of
archaeological resources and protected against misuse,
destruction, damage, alteration, defacement, mutilation etc.
under the Antiquities Act, 1968 in the spirit of Article 24
of the Constitution.
1. Operation and Maintenance: Flood control and

drainage projects have accounted for about half
of the total funds spent on water development
projects since 1960. Despite this, the benefits have
been less than planned and projected. There are a
number of reasons for this, including cost and time
overruns (due to a number of factors e.g. land
acquisition) and problems in the operation and
maintenance of projects. There is a tendency to
see projects as being finished when the physical
works are complete. Insufficient attention is paid
to ensuring adequate water control. Problems in
the operation and maintenance of projects have
also been common. There have been few in-depth
evaluation of flood control and drainage projects
to assess the operational and other problems
involved and to find the best ways to overcome
these.
63. In reply, referring to the relevant paragraph of the

affidavit-in-opposition, the learned Advocate for the
respondents submitted that there is no chance of any
damage to any archaeological resources in the project area
due to implementation of physical intervention under the
project.
64. Article 24 of the Constitution enshrines that state
shall adopt measures for the protection against
disfigurement, damage or removal of all monuments,
objects or places of special artistic or historical importance
or interest. The protection guaranteed under Article 24 of
the Constitution to protect the said Attia Mosque and
Kadim Hamdani Mosque must be ensured and no damage,
whatsoever, must not be done to the said two historical
Mosques.
61. From the above stated materials on record and also

the extract of speech made by the former Finance Minister
and the present Food and Agriculture Minister, it seems
that the compatibility/viability/feasibility of FAP-20 is
not above question. Previous experience manifested that
huge structural projects in the water sector were executed
and then left without adequate provisions for their
122
it. Accordingly, when the Federal Government thus

takes for a federal public use the independently
held and controlled property of a state or of a local
subdivision, the Federal Government recognizes
its obligation to pay just compensation for it and
it is conceded in this case that the Federal
Government must pay just compensation for the
land condemned.
65. It is vigorously canvassed from the side of the

petitioners that FAP-20 project has raised severe obvious
criticisms regarding its environmental and ecological
soundness and also committed serious breaches of laws
and the same cannot be described as a Developmental
project. It is further urged that FAP-20 activities is
detrimental to the life and property of lacs of people and
would deprive the affected people of their Right to Life
by destroying the natural habitat which are protected under
Article 31 and 32 of the Constitution and the Government
also got no right to conduct experiment on peoples life,
property and profession in the name of a project. The
question is whether state has a right to conduct experiment
on peoples life, property and profession disregarding the
existing laws of the land.
67. It must be borne in mind that the Eminent Domain

is restricted or limited by the constitutional fiats like
Fundamental Rights guaranteed under the Constitution.
FAP-20 is an experimental project for controlling flood.
In the event of undertaking of such experimental project,
payment of adequate and Just compensation to all the
persons affected directly or indirectly or casually, are to
be ensured and all risks, damages, injuries etc. must be
covered. Sufficient guarantee must be integrated with the
project from the initial stage and genuine peoples
participation of the affected people must be ensured and
that must not be a public show. Eminent Domain does
not authorize the state to act in contravention of the laws
of the land in planning and implementing the project. Strict
adherence to the legal requirement must be ensured so that
people within and outside the project area do not suffer
unlawfully. No person shall be deprived of his property
except under the law of the land; otherwise it would be
subversive of the Fundamental principles of a democratic
Government and also contrary to the provisions and spirit
of the Constitution.
66. The right or power of a sovereign state to appropriate

private property to particular use for the purpose of
promoting the general welfare is called, in America,
Eminent Domain. State necessity or need for taking the
particular property of a citizen is the very foundation for
the exertion of the power of Eminent Domain. The term
Eminent Domain was coined by Hugo Grotius in his
Treaties De Jure Belliet Pacis in 1625. Cooley in
Constitutional Limitation Volume-II page 1110 states:
The definition implies that the purpose for which
it may be exercised must not be a mere private
purpose. The right of Eminent Domain does not
imply a right in the sovereign power to take the
property of one citizen and transfer it to another
even for a full compensation where the public
interest will in no way be promoted by such a
transfer.
Law provides for paying just compensation for

taking the property of a citizen for state necessity
or need in the exercise of power of Eminent
Domain. In United States of America vs Iska W.
Carmack 329 U.S. 230-248 (91 Law Edition) of
United States Supreme Court Report page 209 it
is clearly posited that the fifth Amendment
postulates that private property cannot be taken
for public use without just compensation. The
Supreme Court of United States thus:
68. It is significant to note here that the project called

Jamuna Multipurpose Bridge Project has drawn detailed
procedure for re-settlement of the displaced and affected
persons and perceived the same as a developmental
programme from the inception of the project. Jamuna
Multipurpose Bridge Authority had chalked out Revised
Re-settlement Action Plan, shortly, IRRAP. But in FAP20 project, no plan by the authority for re-settlement/rehousing of displaced and affected persons directly or
indirectly or casually appears to have been undertaken.
The people under the FAP-20 project got the fundamental
right as enshrined under Article 31 of the Constitution to
enjoy the equal protection of law and to be treated in
accordance with law. It need be stated again that no
property can be acquired and no people can be adversely
affected in the name of developmental project, here the
FAP-20 project, without taking adequate measures against
the adverse consequences as well as the environmental and
ecological damage.
The Fifth Amendment to the Constitution says

no shall private property be taken for public use,
without just compensation. This is a tacit
recognition of a pre-existing power to take private
property for public use, rather than a grant of new
power. It imposes on the Federal Government the
obligation to pay just compensation when it takes
anothers property for public use in accordance
with the federal sovereign power to appropriate
69. The petitioners have alleged that environmental

hazard, damage and ecological imbalance will be caused
by the activities of FAP-20. In the case of Dr. Mohiuddin
Farooque vs. Bangladesh and others being Civil Appeal No.
24 of 1995 arising out of judgement and order dated
18.8.1994 passed by the High Court Division in Writ Petition
No. 998 or 1994, 49 DLR (AD) 1-1997 BLD (AD) 1, A.T.M.
Afzal, C.J. has dwelt at length on the growing concern and
The said doctrine was adopted in the famous

Declaration of Rights of Man after the French
Revolution that the individual could be
dispossessed of his property if the public interest
so required. This declaration even speaks in precise
terms of the public need.
123
by law, if the right to livelihood is not regarded

as a part of the right to life. That, which alone
makes it possible to live, leave aside what makes
life livable, musts be deemed to be an integral
component of the right to life. Deprive a person
of his right to livelihood and you shall have
deprived him of his life.
global commitment to protect and conserve environment

irrespective of the locality where it is threatened. In the
same case B.B., Roy Chowdhury, J. observed:Article 31 and 32 of our Constitution protect right
to life as Fundamental Right. It encompasses
within its ambit, the protection and preservation
of environment, ecological balance, free from
pollution of air and water, sanitation without which
life can hardly be enjoyed. Any act or omission
contrary there to will be violative of the said right
of life.
72. In our jurisdiction, this question as to the meaning

of right to life was raised for the first time in the case of
Dr. Mohiuddin Farooque vs. Bangladesh and others, 48
DLR HCD 438 to which one of us (Kazi Ebadul Hoque, J.
was a party. In that case after discussing various decision
of different jurisdictions specially of the Supreme Court
of India it was held:
70. Life cannot be sustained without its basic necessities

such as food and shelter and it cannot, also, e enjoyed
fruitfully without and all facilities of health care, education
and cultural enjoyment and all the above requirements of
life cannot be had without proper means of livelihood. In
that context, the question arose whether right to life
includes right to livelihood. In the advanced economically
developed countries known as Welfare State,
Government provides social security benefits to the citizens
who have no means of livelihood due to unemployment
and other reason. The concept of the Laissez faire of the
Nineteenth century arose from a philosophy that general
welfare is best promoted when the intervention of the State
in economic and social matters is kept to the lowest possible
minimum. The rise of the Welfare State proceed from
the political philosophy that the greater economic and
social good of the greater number requires greater
intervention of the Government and the adoption of public
measures aimed at general economic and social welfare.
Right to life is not only limited to the protection

of life and limbs but extends to the protection of
health and strength of workers, their means of
livelihood, enjoyment of pollution-free, water and
air, bare necessaries of life, facilities for education,
development of children, maternity benefit, free
movement, maintenance and improvement of
public health by creating and sustaining conditions
congenial to good health and ensuring quality of
life consistent with human dignity.
73. In that case no question of deprivation of life for

want of livelihood was involved. But in the instant cases
before us, the question is whether right to life under Articles
31 and 32 of the Constitution would be adversely affected
by the deprivation of livelihood of the citizens. It has
already been noticed that section 28 of the Embankment
and Drainage Act, 1952 provides for payment of
compensation for injuriously affecting certain rights of
inhabitants upon which their livelihood depends. This
provision, thus, recognizes right to livelihood of the citizens
of the country. In the facts and circumstances of these two
cases, it is clear that livelihood of some inhabitants of FAP20 project area dependant on fishing would be adversly
affected. We, thus, find that life of those persons would,
ultimately, be affected due to the deprivation of their such
livelihood. So, we are of this view that right to life under
Articles 31 and 32 of the Constitution also includes right
to livelihood. Since the aforestated provisions of law has
provided for compensating such adverse affect to the
livelihood of the inhabitants of the FAP-20 project area,
there is no question of violation of Fundamental Right.
71. Article 21 of the constitution of India is similar to

Article 32 of our Constitution. Article 21 of the Constitution
of India enjoins: No person shall be deprived of his life
or personal liberty except according to procedure
established by law. The Indian Supreme Court in the case
of Olga Tellis and others vs. Bombay Municipal
Corporation and others, AIR 1986 SC 180, interpreted
Article 21 of the Indian Constitution in the following
terms:The sweep of the right to life conferred by Art.
21 is wide and far-reaching. It does not mean
merely that life cannot be extinguished or taken
away as, for example, by the imposition and
execution of the death sentence, except according
to procedure established by law. That is but one
aspect of the right to life. An equally important
facet of that right is the right of livelihood because,
no person can live without the means of living,
that is, the means of livelihood. If the right to
livelihood is not treated as a part of the
constitutional right to life the easiest way of
depriving a person of his right to life would be to
deprive him of his means of livelihood to the point
of abrogation. Such deprivation would not only
denude the life of its effective content and
meaningfulness but it would make life impossible
to live. And yet, such deprivation would not have
to be in accordance with the procedure established
74. In a Pilot Project, although, positive targets are

expected but that would not automatically over-rule the
potential of negative consequences or even failure of the
project. Admittedly, FAP-20 is an experimental project.
In the case of Shehla Zia vs. WAPDA, PLD 1994 (SC)
693, referred to from the side of the petitioners, high tension
electric wires and grid station near and over residences
created possibilities of electromagnetic field injurious to
human health. The Supreme Court of Pakistan held:
In this background if we consider the problem
faced by us in this case, it seems reasonable to
124
take preventive and pre-cautionary measures

straight away instead of maintaining status-quo
because there is no conclusive findings on the
effects of electro-magnetic field on human life.
One should not wait for conclusive finding as it
may take ages to find out and therefore, measure
should be taken to avoid any possible danger and
for the reason one should not go to scrap the entire
scheme but could make such adjustment,
alterations or additions which may ensure safety
and security or at least minimize the possible
hazards (PP 710-711).
It is worth noting that many sectoral laws

explicitly contain provisions to inform local people
about projects and to both invite and resolve
objections raised. For example, the 1927 Forest
Act requires the inquiry and settlement of all
private claims when restrictions are to be imposed
when the status of a public forest is changed
through re-classifying as a Reserved or Protected
Forest. The 1920 Agricultural and Sanitary
Improvement Act and the 1952 Embankment and
Drainage Act explicitly guarantee the rights of
local populations and interest-holding parties in
proposed project areas to examine and raise
objections to the project being considered.
Furthermore, neither legal rights nor interests can
be extinguished without appropriate compensation.
Many of the adverse local social and
environmental impacts induced by development
projects could be avoided or minimized if the
procedures of law were followed. Some laws
contain inter sectoral restrictions on development
projects which are neither followed nor enforced.
An example of this is the Conservation of Fish
Act, 1950 which provides in the schedule a long
list of rivers and their segments where no water
control measure can be undertaken, so that natural
spawning and feeding grounds of fish remain
undisturbed. These examples prove that it is a
tragedy when public agencies flout their own laws
and then chase the people for violating the law to
justify the failures of their so called development
projects. In such situations, judicial review of
administrative action would be effective in
upholding rule of law.
The Compartmentalization Pilot Project, FAP-20, being

an experimental project, precautionary measure are needed
to be integrated into the project to ensure that no citizen
suffers damage from an act of the authority save in
accordance with law.
75. Turning now to the question how far the judiciary
can intervene in such mater. In S.A.D.E. Smiths
Constitutional and Administrative Law Fourth Edition,
Page 562 as referred to by Dr. Mohiuddin Farooque, it is
stated:
Action taken by a public authority not only runs
the risk of being ultra vires in substance but may
in certain cases be ultra vires in form: Certain
powers are exercisable only subject to procedural
safeguards enshrined in the enabling statute. The
relevant Act may require that some person or
organization be consulted before action is taken
or an order made. Notice of intention to act may
have to be given in a particular form or by a
specified date. What happens if the procedure laid
down is not complied with by the authority? First
the courts will classify the procedural or formal
requirement as mandatory or directory. If a
requirement is merely directory then substantial
compliance with the procedure laid down will
suffice to validate the action and in some cases
even total non-compliance will not affect the
validity of what has been done. If a mandatory
requirement is not observed, then the act or
decision will be vitiated by the non-compliance
with the statute. This does not mean that the act
or decision has no legal effect and can be ignored
or treated as void. The House of Lords has stressed
that the use of such terms as void and voidable
has little practical meaning in administrative law
where the supervisory jurisdiction of the High
Court operates to ensure the proper exercise of
powers by public authorities. Non-compliance with
a mandatory procedural requirement results in the
act or decision being susceptible to being quashed
by the High Court which will then make whatever
order to the public authority if sees as appropriate
to remedy the unlawful action taken.
76. Judicial review of the administrative action should

be made where there is necessity for judicial action and
obligation. Such action must be taken in public interest.
The purpose of Judicial review is to ensure that the citizen
of the country receives protection of law and the
administrative action comply with the norms of procedure
set for it by laws of the land. Judicial Power is the safest
possible safeguard against abuse of power by
administrative authority and the judiciary cannot be
deprived of the said power.
77. It has already been noticed that Article 31 of our
Constitution gives the right to protection of law to the life,
liberty, property etc., Article 32 ensures that no one can be
deprived of life and liberty except in accordance with law
and thus protects life from unlawful deprivation. Article
40 gives every citizen right to enter upon lawful profession
or occupation and Article 42 protects right to property. The
petitioner of each of the writ petitions alleges the violation
of the Fundamental Rights guaranteed under Articles 31,
32 40 and 42 of the Constitution. All the above
Fundamental Rights are subject to law involved in the
matter. In the event of violation of Fundamental Right or
even any violation of the law of the land, this Court under
judicial review of the administrative action, can interfere
with unlawful action taken by any administrative authority.
It has, already, been noticed that FAP-20 activities have
been undertaken by the respondents in accordance with
In this context, we like to quote a passage by his

Lordship Mr. A.T.M. Afzal C.J. from a paper under the
Heading Country Statement-Bangladesh presented at the
Regional Symposium on the Role of Judicial in Promoting
the Rule of Law in the Area of Sustainable Development,
Colombo, Sri Lanka, 4-6 July 1997:
125
the law of the land regarding the adoption and approval of

the scheme but violations of some provisions of the law of
the land in implementing the project is found but the
Fundamental Rights stated above do not appear to have
been violated.
(c)
78. Now, the question is whether this Court will declare

the activities and implementation of FAP-20 project to
be without lawful authority for the alleged violation of
some of the provisions of the aforestated laws of the land.
and
79. From the materials on record it appears that FAP20 project is a developmental project, although
experimental, aimed at controlling flood which regularly
brings miseries to the people of the flood prone areas of
the district of Tangail specially during the rainy season of
the year. A substantial amount appears to have been spent
and the project work has been started long before and also
partially, implemented. Success and not the failure of the
project is expected. In the event of any interference into
the FAP-20 activities, the country will be deprived of the
benefits expected to be derived from the implementation
of the scheme and also from getting foreign assistance in
the development work of the country and, in future, donor
countries will be apprehensive in coming up with foreign
assistance in the wake of natural disaster. At the present
stage of the implementation of the project, it will be
unpractical to stop the work and to undo the same. But in
implementing the project, the respondents, cannot with
impunity, violate the provisions of laws of the land referred
to and discussed above. We are of this considered view
that FAP-20 project work should be executed complying
with the aforestated requirements of laws of the land.
81. Before parting with the matter, we are inclined to

observe that the people of Bangladesh live with flood and
fight with flood for centuries. The people of Bangladesh
face the painful experience of flood causing colossal
damage to crops and properties. Faced with the peculiar
geographic and climatic situation, it becomes difficult task
to control flood and other catastrophes that fall on the
people of Bangladesh. Flood water come from outside, no
action can be effective until the upstream flow can be
checked and controlled. Under the International Law, the
upstream states got a tremendous responsibility to play
part in regulating and taking integrated approach in tackling
flood related hazards and the burden of the load of flood
cannot be placed on Bangladesh alone.
(d)
83. In the result, both the Rules are made absolute-inpart. The respondents are allowed to execute and
implement the FAP-20 Project activities subject to the
strict compliance with the directions made above.
The respondents, thus, are directed:
(b)
to ensure that no serious damage to the environment

and ecology is caused by FAP-20 activities
82. Before concluding, we express our deep appreciation

to Dr. Mohiuddin Farooque and his Organization
Bangladesh Environmental Lawyers Association,
(BELA) who are championing the cause of the public
and the downtrodden people of the community, who as
helpless citizens, cannot ventilate their grievances before
the courts of law and, also, making efforts to protect and
conserve the environment and ecology of the country and
BELA is coming forward with Public Interest litigation
(PIL) before the courts of law.
80. In the facts and circumstances and having regard to

the provisions of law, we propose to give some directions
to the respondents for strict compliance of the same in the
greater public interest:
(a)
to secure the archaeological structure (site) of the

Attia Mosque and Kadim Hamdani Mosque
falling within the FAP-20 Project area from any
damage, disfigurement, defacement and injury by
the project activities.
to comply with the provisions and procedures

contained in section 28, 30, and 31 of The
Embankment and Drainage Act, 1952 (East Bengal
Act 1 of 1953).
to comply with the provisions contained in Article
11(1)(c) of Bangladesh Water and Power
Development Boards Order, 1972 (Presidents Order
No. 59 of 1972) for re-settlement and re-housing of
persons actually displaced from their residences by
the execution of the scheme, that is, implementation
of FAP-20 Project.
84. Having regard to the facts and circumstances of the

case, there will be no order as to costs.
KAZI EBADUL HOQUE, J:

I agree
F-6-FAP-JUD
C:\PETITION\FAP-JUD
126
127
DECISION NO. A86/99

IN THE MATTER
AND
IN THE MATTER
of three appeals under section 120 of the Act
BETWEEN
RAVENSDOWN FERTILISER CO-OPERATIVE LIMITED

(RMA 506/94 and 935/95)
AND
GARY MELVYN SMITH

(RMA 509/94)
Appellants
AND
OTAGO REGIONAL COUNCIL

Respondent

His Honour Judge R J Bollard (presiding)
Environment Commissioner I G C Kerr
HEARING at DUNEDIN on 15, 16, 17, 18, 19, 22, 23 and 24 June; 21, 22, 23 and 24 September,
1998; 25, 26, 27, 28 and 29 January: 3,4 and 5 February; 14 and 15 April, 1999
APPEARANCES
N S Marquet and S J Anderson for Ravensdown Fertiliser Co-operative Limited
G M Smith, appellant in person
P J Page for Otago Regional Council
T Van Kampen for Ravensbourne Residents Association; and on his own behalf as a submitter
A R McKeown on behalf of B McKeown, a submitter
M J M Williams for West-Harbour Community Association Inc.
R Gibb on behalf of herself and other named submitters
A H Borick for Dunedin Ratepayers and Householders Association (leave to withdraw)
128
INTERIM DECISION
months, plus an extra short sitting to hear final submissions.

In the course of the hearing phases the Court undertook
two inspections of the works and the wider Ravensbourne
area by arrangement with the parties. The submissions and
evidence were predominantly focussed upon matters
affecting the air quality issue although some evidence
was adduced, both for Ravensdown and the Council, for
the purpose of demonstrating that upholding the coastal
permits, on the terms proposed, was appropriate. For
convenience, we will address the coastal permits aspect
first, before passing to consider the critical discharges to
air question. Before doing so, however, it will be helpful
to commence with a brief historical outline, followed by a
description of the current plant and its operation. In view
of the large volume of material placed before us, both in
oral and documentary form, we have endeavoured to
identify and discuss those matters which, in our judgment,
are the most prominent - without overlooking other matters
alluded to by one or more of the parties during the hearing,
but which we have been unable to elaborate on for the
sake of containing within reasonable bounds an already
complex and detailed decision.
INTRODUCTION
In these proceedings Ravensdown Fertiliser Co-operative
Limited (Ravensdown or the Company) seeks
amendments to various conditions attached to coastal and
discharge to air permits granted on applications lodged by it
under the Resource Management Act 1991 (the RMA or
the Act) with the Otago Regional Council (ORC or the
Council) in respect of the companys fertiliser works at
Ravensbourne, near Dunedin (the works). The works lie
adjacent to the Otago Harbour (the Harbour). The other
appellant, Mr G M Smith, seeks to overturn or vary the
Councils decision in favour of Ravensdown as to discharges
to air, on the basic grounds that, on the one hand, ORCs
decision was inadequate to protect his property and the
residential environment of Ravensbourne generally, or, on
the other, that the Companys proposals, as framed, lack
sufficient merit to warrant consent.
At the outset of the hearing, a set of conditions was
submitted as to the coastal permits aspect agreed between
Ravensdown and ORC. Mr Smith, supported by other
objecting parties or their representatives, indicated that the
main thrust in opposition was directed not to that aspect,
but to the discharge to air aspect. Even so, it was contended
that if the Court should conclude that the grant of the
discharge to air permits should be upheld, with (say) more
stringent conditions, any easing of the coastal permit
conditions, in order to achieve appropriate levels or
standards for the discharges to air, would be wrong in
principle. In other words, it was said that the water-related
effects needed to be of minimal significance in relation to
the public use and enjoyment of the harbour, while at the
same time the ambient air quality experienced by the
appellant and other residents of Ravensbourne needed to
be properly safeguarded, so as to avoid adverse effects
upon those residents and their properties via the Companys
discharges to air. If fulfilment of either (or both) of these
matters could not be reasonably assured, then, according
to the appellant and the other objecting parties, the
Company should be refused consent and effectively given
to understand that the plants continuing operation would
not accord with the Acts purpose, and would be insufficient
to meet modern environmental expectations.
HISTORICAL BACKGROUND
The fertiliser works have a long history. They were
established originally for the purpose of manufacturing
sulphuric acid and superphosphate, and for the storage and
dispatch of superphosphate and other fertilisers to the
farming areas of Otago and Southland. The undertaking
was opened on 28 January 1931, at the instance of
Dominion Fertiliser Co Ltd, founded in August 1929.
Operations have continued at the site ever since, albeit with
alterations and modifications that is, for over 68 years.
Ravensdown was formed in 1979 out of the fertiliser
division of the former joint enterprise of Kempthorne
Prosser and Dominion Fertiliser .
Expressed in dollars, the original capital cost of the factory
was $452,400. Allowing for significant upgrading and
updating over the years, particularly in recent decades, the
replacement cost of the buildings and plant currently
existing amounts to approximately $46,000,000 (assessed
at 31 May 1998).
For reasons which involved general economic
circumstances in the farming sector and closure of another
manufacturing plant known as the Seadown Works,
Ravensdown has, since the earlier part of 1986, supplied
superphosphate and derivatives to many parts of the South
Island, ranging from the mid-Canterbury district of
Mayfield/Hinds to the extremes of Southland.
Another matter was raised late in the hearing by Mr M J

M Williams, appearing for West-Harbour Community
Association Inc., by way of formal challenge to the Courts
ability to determine an important part of the Companys
case on the basis postulated in evidence adduced for the
Company. For reasons later appearing, we do not consider
that we are without jurisdiction to determine the case as
presented on its merits. Indeed, it is desirable that these
long-standing and protracted proceedings should be
determined by this Court without further delay.
Residential occupation within the general area of

Ravensbourne stretches back to before 1900. The area lies
broadly to the north-east on the coastal slopes between
Ravensbourne Road, (which runs generally near to the
harbour shoreline), and the more elevated bush-clad areas
behind, including Burns Park Scenic Reserve. Growth has
occurred over time, with todays population standing at
around 1400. The closest residential properties to the
The total hearing time was lengthy - having comprised

three main sitting phases, ranging by necessity over several
129
Companys site lie immediately across Ravensbourne

Road, not more than 30m to 40m away boundary to
boundary. Adjacent to the works at the eastern end lies a
recreational reserve known as Moller Park.
trioxide, and absorption of the sulphur trioxide in water to

produce sulphuric acid. The solid sulphur is recovered from
a covered storage area by front-end loader and transported
by belt conveyor to an above-ground melter, fitted with
steam heated coils, and an agitator. The molten sulphur is
filtered to remove solid impurities, then pumped to the
sulphur furnace which operates at temperatures of up to
1,000C. The sulphur is sprayed into the furnace where it
spontaneously ignites, providing a gas stream containing
approximately 8.5% of sulphur dioxide by volume. The
gas steam is cooled to 440C in a fire tube boiler which
raises high pressure steam. The steam is used to generate
up to 1.7 MW of electrical power that is supplied to the
other plants within the works, with any excess sold to
United Electricity.
Although residential activity preceded the works

establishment in 1931, virtually all of todays inhabitants
have come to reside in the area with the works present. It
is unlikely in our opinion that many of those inhabitants
on arrival would have been unaware of there being a major
continuing industrial operation at the relevant foreshore
location, bearing in mind that the site has constantly been
occupied by a significant complex of plant and buildings
that have been actively maintained in use, and from time
to time upgraded.
The cooled gas then passes to a converter, where the

sulphur dioxide is converted to sulphur trioxide over a
vanadium pentoxide catalyst. The conversion releases
significant quantities of heat, thus increasing the gas
temperature. The conversion takes place in four stages,
with cooling of the gas between each stage. The gas from
the converter is further cooled, then contacted with 98.5%
sulphuric acid in an absorbing tower. The sulphur trioxide
is absorbed in the sulphuric acid, thus increasing its
concentration. The concentration is restored to 98.5% by
the addition of water, and by blending with less
concentrated acid. These additions increase the volume of
acid in the pump tank. The acid produced is transferred to
the production tank and then pumped to storage. Three
500-tonne capacity storage tanks are located within the
acid plant, with a further 2,000-tonne tank being located
at the northern end of the works. The remaining gas,
principally nitrogen and oxygen, is discharged to the
atmosphere via a 55-metre high stack. The discharge also
contains residual sulphur dioxide, traces of sulphur
trioxide, and sulphuric acid mist.
PRESENT PLANT AND OPERATIONS

Detailed evidence as to the present plant and operation
was led from the Companys Group Technical Manager,
Mr S A Clark, whose responsibilities embrace all
engineering and technical aspects of Ravendowns
operations. In order to set the scene for our later discussion
and evaluation of relevant issues, it will be helpful to
describe the nature of the plant and operations in some
detail, drawing mainly from Mr Clarks evidence.
The activities undertaken by Ravensdown are the
manufacture, storage and sale of fertilisers. The major
processes are the manufacture of sulphuric acid and the
manufacture of superphosphate. Both processes require
water for cooling and gas scrubbing respectively, and give
rise to discharges to air and water.
Bulk Material Intake
All raw materials and imported fertilisers are transferred
to the works by belt conveyor from the Ravensbourne
wharf, or by road transport from other Ravensdown works.
The materials discharged at the wharf include phosphate
rock, sulphur, ammonium sulphate, diammonium and
monoammonium phosphates, potassium chloride and
various granulated fertilisers.
Considerable quantities of heat are generated by the drying

of the combustion air for the plant and the absorption of
the sulphur trioxide. Temperature reduction is achieved
by cooling the acid with seawater in a plant heat exchanger.
After passing through the exchanger, the seawater is
discharged into the harbour. The discharge also contains
blow-down from the acid plant boiler, rinse water from
the ion exchange plant, cooling water from various pumps,
and stormwater from the acid plant buildings and yards.
As earlier noted, the steam raised in the acid plant is used
to generate electricity. At the exhaust of the turbine the
steam is condensed and returned to the boiler. Seawater is
used for cooling in the condenser. After passing through
the condenser, the seawater is discharged into the harbour.
Sulphuric Acid Plant

The sulphuric acid plant was constructed by Lurgi Chemie
of Germany. Production commenced in September 1967.
The production rate is dependent on the demand for
fertiliser and has varied accordingly between 40 and 200
tonnes per day. Current demand is relatively buoyant, so
that the daily output is at or near the higher end of the
range. The design parameters, emissions levels and acid
plant siting were approved by the Health Department
following extensive dispersion testing at the site.
Phosphate Rock Grinding

The phosphate rock used to make superphosphate is
typically a blend of two or more different phosphate rocks
imported from Nauru, China and Morocco. The rocks are
recovered from storage by front-end loader. They are
Essentially, the process for manufacturing sulphuric acid

comprises the combustion of sulphur to produce sulphur
dioxide, oxidation of the sulphur dioxide to sulphur
130
blended volumetrically and transported by conveyor-belt

to feed bins. Two Bradley air-swept ring roller mills are
used to grind the phosphate rock. A stream of air carries
the ground rock from the mill where it is separated in a
cyclone, the air being returned to the mill base. To control
humidity, a proportion of air is withdrawn continuously,
passed through a bag filter to remove rock dust particles,
and discharged to the atmosphere. Screw conveyors
transport the ground rock from the cyclone to the storage
bins.
compounds evolved from the Broadfield mixer are also

evolved from various plant items within the granulation
plant. Again, for reasons of occupational health, these gases
are collected and discharged directly to the atmosphere.
The granulated superphosphate is conveyed to storage
where it remains in heaps for a minimum of ten days.
Chemical reactions occur spontaneously within the heaps
as final curing takes place. Incidental gas given off within
the storage area escapes via roof vents, again in the interests
of occupational health.
Superphosphate Plant
Fertiliser Despatch Plants
The production of superphosphate involves the reaction

of sulphuric acid and phosphate rock to convert the
insoluble phosphate in the rock to soluble phosphate which
can be utilised by vegetation and thus enhance pasture
growth.
Two despatch plants handle superphosphate and all

imported fertilisers, either singly or blended to the clients
requirements. All fertilisers are recovered from covered
storage by front-end loader and transported to the despatch
plant. The fertiliser is screened to remove any oversize
material which is subsequently broken up and returned to
the screen. The screened fertiliser is stored in bins prior to
loading onto road vehicles or rail wagons.
The ground phosphate rock, sulphuric acid, scrubber

effluent and/or water are all fed into a Broadfield mixer
where the major proportion of the reaction takes place.
The mix discharges as a slurry onto a slow-moving slat
conveyor where the mix solidifies as the reaction continues.
After a period of approximately 25 minutes the mix is cut
out by a rotary cutter.
General Site
On-site vehicle movements occur within sealed surface
areas. Nevertheless, in transferring fertiliser from storage
to the despatch plants by front-end loader, some spillage
occurs which can contaminate stormwater during periods
of rain. In order to reduce this potential, the sealed surfaces
around the works site are swept. Stormwater from buildings
and yards is discharged into the harbour from various points
on the site. Prior to discharge, the stormwater passes
through mud tanks to remove suspended solids. In wet
weather, the wheels and chassis of trucks leaving the site
are washed to reduce potential for fertiliser dust deposition
on public roads. The water from truck washing is
discharged into the harbour by way of an open drainage
channel passing through the north-eastern end of the site.
In the course of the reaction a number of volatile

compounds develop. These include carbon dioxide, sulphur
dioxide, water vapour, silicon tetrafluoride, hydrogen
sulphide and various organic sulphur compounds. For
reasons of occupational health, these gases are collected
and scrubbed with fluosilicic acid, seawater and sodium
hypochlorite, to discharge to the atmosphere through a 40metre high stack known as the den stack.
The scrubber consists of three stages. In the first stage the
gas is scrubbed with fluosilicic acid to absorb the silicon
tetrafluoride. To control the concentration of the fluosilicic
acid, fresh water is added continuously to the scrubber.
This displaces an approximately equal volume of silicic
acid, which is then used to dilute the sulphuric acid in the
superphosphate plant. In the third stage, the gas is further
scrubbed with seawater, which is discharged to the harbour
via a 150mm diameter multi-port diffuser (known as
Outfall 6a) laid on the seabed between the seawall abutting
the works site and the wharf. Sodium hydroxide and
sodium hypochlorite are utilised in a fourth stage to remove
organic sulphur compounds. At regular intervals, the
contents of the fourth stage scrubber sump are pumped
over to the third stage scrubber and discharged additionally
through the multi-port diffuser into the harbour.
NATURE AND CONTROL OF DISCHARGES

Bulk Intake Activities
Discharges to air consist, in part, of fugitive emissions of
dust from phosphate rock and hydrogen sulphide from
sulphur. Fugitive dust can be generated at a number of
points in the intake system - for example, when air is
displaced, or material is transferred from one conveyor to
another. To limit the spread of fugitive dust, wind netting
has been placed around the top portion of each hopper to
reduce wind velocity over the hopper. The hopper
conveyors are also enclosed with wind netting for three of
the five hoppers.
From its solidified state, the fresh superphosphate is

granulated and then discharged from the granulating drum.
The discharging superphosphate is screened to separate
the desired size of particles, while the larger particles are
broken up and returned to the granulation drum. The same
While other efforts are taken to reduce generation of

fugitive dust, including fitting of fabric covers on doorways
and in the treatment or handling of materials, dust can still
escape from under eaves and from roof vents.
131
Hydrogen sulphide may be present in bulk sulphur as the

result of a reaction between the sulphur and the steel of
the ships hold. When the sulphur is unloaded, the hydrogen
sulphide may be released to the atmosphere and give rise
to a degree of odour. Ravensdown applied for and was
granted a discharge to air consent in relation to the
unloading operation. That application too was the subject
of an appeal to this Court, but those proceedings were
settled refer Decision No. C38/99 recording the basis of
determination and outcome.
approximately 330 hours per annum. The combustion

products are discharged into the atmosphere through a 19.4meter high stack. Safety valves on the boiler, the de-aerator
and the low-pressure steam system, may lift from time to
time, thereby discharging a cloud of steam to the
atmosphere.
Phosphate Rock Grinding
The only discharge from the phosphate rock grinding plant
is the moist air vented from each of the two mills to control
humidity of the air circulating through the mills. Phosphate
rock suspended in the air vented from the mills is removed
in reverse pulse jet bag filters. The removal efficiency is
100% for particles larger than 5 microns, and typically
95% to 99% (plus) for particles smaller than 5 microns.
Sulphuric Acid Plant

The principal discharge from the sulphuric acid plant
comprises rates of up to 28,434 m3/hr. The discharge rate
varies depending on the plant load. The temperature is
typically about 65C. The exhaust may contain up to 8.2
gm/m3 of sulphur dioxide, and up to 0.035 gm/m3 of sulphur
trioxide and sulphuric acid mist. According to Mr Clark,
these emissions from the acid plant are controlled primarily
by careful application of process parameters.
According to Mr Clark, recent measurements on the dust

concentration in the air discharged from the bag filters
averaged 35 and 37 mg/m 3 respectively for the nos. 1 and
2 mills, with upper ranges of 73 and 75 mg/m3 respectively.
These results fall well within the companys clean air
licence limit of 500 mg/m3. We observe that the companys
licence granted under the former Clean Air Act 1972
remains current pending the outcome of these proceedings
under s.124(1) of the RMA, the Company having applied
to the Council for the permits now at issue 6 months before
expiry of the licence.
The discharge of sulphur dioxide is controlled by ensuring

that the temperature of the gas stream entering each catalyst
bed is within the optimal range. On each occasion that the
catalyst is screened, a sample of the catalyst is sent to the
manufacturer for testing for activity, mechanical strength
and chemical composition. We were informed that the
sulphur dioxide concentration in the gas discharge from
the plant is monitored continuously with an infra-red
spectrophotometer; and it is also analysed and calculated
manually by the works laboratory at weekly intervals.
Superphosphate Plant
The principal discharge from the superphosphate plant
consists of air vented from the Broadfield mixer containing
steam, carbon dioxide, fluoride as silicon tetrafluoride,
hydrogen sulphide, sulphide, sulphur dioxide, and traces
of reduced sulphur compounds.
The discharge of sulphur trioxide is controlled by ensuring

that the concentration and temperature of the absorbing
acid are within the optimal range. Both the temperature
and concentration are recorded continuously and monitored
by an operator, whose responsibility it is to take corrective
action in case of any deviation from the optimal conditions.
The works laboratory also routinely checks the acid
concentration.
As earlier indicated, the air vented from the Broadfield

mixer is scrubbed prior to discharge to the atmosphere.
Fluosilicic acid is used to remove the silicon tetrafluoride
in the first two stages of the scrubber, followed by a third
stage using seawater. A mixture of sodium hydroxide and
sodium hypochlorite is then used to remove the hydrogen
sulphide and reduce sulphur compounds in a two-stage
scrubber. The fluosilicic acid from the first two stages of
the fluoride scrubber is cooled and re-used to dilute the
sulphuric acid in the superphosphate plant. Effluent from
the third stage of the fluoride scrubber and from the two
stages of the odour scrubber is discharged to the harbour.
Sulphuric acid mist is formed in the plant when moisture

in the gas stream reacts with sulphur trioxide. Typically,
the acid mist particles are smaller than 10 micrometers.
Candle filters have been installed to remove acid mist from
the gas stream prior to discharge. The removal efficiency
is approximately 100% for particles larger than 3
micrometers, and ranges from 92% to 99.95% for smaller
particles. According to Mr Clark, the gas discharged from
the plant is essentially free of acid mist. Steam vented from
the molten sulphur tanks is not controlled in any way at
present, because it is regarded as a relatively minor source
of hydrogen sulphide. It was stated, however, that this is
intended to be the subject of future review.
The major contaminant of the effluent is fluoride (as

fluosilicic acid saturated with silica). It is milky white in
appearance due to the presence of precipitated silica. On
one day each week the effluent is sampled continuously
throughout the entire period of operation of the
superphosphate plant and analysed for fluoride, pH,
dissolved phosphorous and suspended solids. Every six
months the sample is analysed for zinc, cadium, chromium
and copper.
At intervals during the year, and for plant start-up, a 146

kW boiler is operated. The boiler is fired with a heavy fuel
oil containing 2% sulphur. In total, the boiler operates for
132
Two secondary discharges vent to air from various points

around the granulation plant. These discharges contain
primarily steam with traces of silicon tetrafluoride and
reduced sulphur compounds. The fugitive discharge from
stockpiled superphosphate decreases with time as the
chemical reactions proceed more and more slowly and
ultimately cease. Since superphosphate is produced on up
to six days per week, the storage buildings contain product
of varying ages, all evolving gases at varying rates.
Emissions through the roof vents in the storage areas are
dispersed by airflow over the exterior of the building which
is influenced by prevailing wind conditions.
The discharge from Outfall 1 is primarily cooling water

from the acid coolers. The cooling water is taken from the
harbour and, in turn, discharged continuously at up to
218m3 per hour.
Fertiliser Despatch
The principal discharge to air from the despatch process is
fertiliser dust. Sources of fugitive dust include plant feeder
bins, conveyor transfer points, vibratory screening, and
the tipping points from the final conveyors. During the
loading of trucks, the fertiliser is discharged into each
receptor vehicle via an extending chute. The chute is
lowered to the floor of the tray of the truck prior to loading
commencing and slowly raised as the fertiliser gathers in
volume within the tray. Truck loading occurs within the
despatch plant buildings to contain dust generation.
The pH of the discharge is typically 8.1 to 8.3, but can be lower

because of either intermittent discharge of rinse water from the
ion exchange column, intermittent discharge of stormwater from
the acid tanks bunding, or leaks in the sulphuric acid coolers and
piping. The discharge pH is continuously monitored and recorded
on a data logger. An alarm sounds if the pH drops below 4.
During 1997, the original acid coolers, which had been
prone to leaks, were replaced. We were informed by Mr
Clark that since that time there have been no discharges of
acid to the harbour, either from the plate heat exchanger
that was introduced, or from associated acid piping.
General Site
Vehicle movements on the site are conducted on sealed
surfaces. Nevertheless, in the course of fertiliser transfer
from storage areas to the despatch plants by front-end
loader, some spillage occurs which is liable to be ground
to dust by vehicle wheels. The passage of large vehicles
and wind can suspend the dust, thus facilitating emanation
beyond the immediate area. To limit the potential for
spreading of wind-blown dust, a vacuum road sweeper is
employed to sweep the sealed areas around the site. We
were informed that the Company has in place a
comprehensive on-site management programme designed
to ensure that high standards are maintained in controlling
dust generation. There was some doubt, however, whether
the loaded trays of trucks leaving the site are always
covered. Given the works location, it is plainly important
that departing loaded vehicles are properly covered as a
matter of uniform procedure.
The sulphuric acid storage tanks in the acid plant are

bunded to contain any spills or leaks from the tanks and
associated piping. Rainwater also collects in the bunded
area and needs to be periodically discharged to Outfall 1.
The rainwater may be acidic, in which case it is neutralised
with caustic soda prior to discharge.
Sulphuric acid is loaded into road tankers adjacent to the
acid storage tanks. Stormwater drains run through this area
but are plugged prior to loading to avoid spilling being
discharged through Outfall 1. The standing area where the
tankers are loaded is also bunded to contain any spillage.
Stormwater flows from the acid plant yards and buildings
are variable depending on the intensity and duration of the
rainfall event. These flows have not been measured, nor is
there any control exercised on the quality of the stormwater.
However, according to Mr Clark, there are no bulk solids
handled in the acid plant, and in his view there is little
potential to contaminate stormwater.
Site Outfalls
Stormwater and wash-water is discharged from a number
of outfall points, including the open drain at the northern
end of the site. More particularly, they are as follows:
Outfall 2 is a 200 mm diameter steel pipe discharging the

cooling water from the turbine condenser. The cooling
water is taken from the harbour and, in turn, discharged
continuously at up to 341m3 per hour. The only effect upon
the receiving water relates to the elevated temperature of
the water returned to the harbour. There is no chemical
treatment of the cooling water, nor is there any contact
with any process fluid.
Outfalls 1 and 2
Outfall 1 is a 910mm diameter concrete pipe carrying the
following discharges:
Blow-down from the acid plant boiler.

Freshwater from the gland cooling on the boiler feedwater pumps, condensate pumps and turbine
condenser vacuum pumps.
Rinse water from the ion exchange columns in the
boiler water treatment plant.
Stormwater from Ravensbourne Road and hill
catchment areas.
Stormwater from the sulphuric acid tank bunding,
plant buildings and adjacent paved areas.
Seawater outflow from the acid coolers, turbine oil

coolers and the alternate air cooler.
133
Other outfalls
diameter diffuser associated with the outfall lies 100m offshore. The diffuser is designed to provide over 500:1 initial
dilution by jet mixing (verified by testing) and further
dilution by eddy diffusion in the receiving water. A 50m
limit on either side of the diffuser has been adopted by
ORC as the basis for defining the area in which initial jet
mixing occurs, and therefore the appropriate boundary at
which to determine whether compliance with permitted
contaminant levels of discharge are met. The remaining
boundaries comprise the seawall and a parallel line 250m
off-shore.
Outfall 3 is a 200mm diameter PVC pipe carrying the

following discharges:
blow-down from the auxiliary boiler;

wash-water from washing down yard areas;
stormwater from the southern end of the works
buildings, entrance ramp and adjacent paved areas;
stormwater from Ravensbourne Road and hill
catchment areas;
water from an underground stream which emerges
from a bank below Ravensbourne Road.
Outfall 7 is a 300mm diameter pipe carrying stormwater

from the bag store and the acid tank bund. Stormwater
which accumulates in the acid tank bund may be
contaminated with sulphuric acid. The accumulation is
checked weekly. The pH is first checked and neutralised
with caustic soda if necessary. The stormwater from the
bag store roof is relatively clean and is not treated.
Stormwater flows are variable depending on the intensity
and duration of a rainfall event and have not been
measured. Each inspection and any action arising from it
is again recorded, with details available to the Council.
The auxiliary boiler is operated continuously during the

acid plant annual shut down and start-up. Once a month it
is brought up to pressure which takes up to 12 hours.
Typically the boiler might be operated continuously on
eight days each year during the shutdown and start-up.
The boiler is blown each day, discharging 234 litres of
water at each blow-down. The water contains up to 1,000
ppm of dissolved solids, consisting of salts naturally
present in the water plus treatment chemicals added to the
boiler water. The temperature of the blow-down is
approximately 185C. The stormwater contains varying
amounts of dissolved and suspended fertilisers, but the
quality of the stormwater has not been monitored. Flows
are variable depending on the intensity and duration of a
rainfall event. All of the discharges through Outfall 3 pass
through a mud tank to allow suspended solids to settle out.
The tank is inspected weekly and cleaned out as necessary.
Each inspection and any action arising from it is recorded,
with details available to ORC on request.
A truck washing facility is provided at the exit from the

works. It is used during wet weather to prevent muddy
water from the yards being conveyed onto public roads by
trucks leaving the works site. The water from the truck
wash is discharged directly into the open drainage channel
running across the north-eastern end of the site. The
discharge contains suspended fertiliser material picked up
in tyre treads and on the chassis of trucks as they drive
through the site. Apart from the truck washing, the facility
has recently been employed to wash two front-end loaders
at the end of each day. In the period 15 November to 23
November 1994, 10.4m3 of water was used and discharged
from the former loader wash. Volumes currently used are
believed to be similar. The wash-water contains suspended
fertiliser material. Stormwater from the yards and buildings
at the northern end of the site also discharges into the open
drain.
Outfall 4 is a 300mm diameter pipe discharging wash-water

from the yard adjacent to the sulphur melter and stormwater
from buildings and other yard area nearby. The total volume
of water used in washing down the yard is estimated at
2m3. Although the stormwater contains varying amounts
of suspended sulphur, the quality of the stormwater has
not been monitored. The flow is variable depending on
the intensity of a rainfall event and also has not been
measured. Both the wash-water and the stormwater pass
through two mud tanks to allow suspended solids to settle
out. The first tank is inspected weekly and cleaned out as
necessary. The inspection and any action arising from it is
recorded, with details available to the Council.
Stormwater from Outfalls 3, 4, 6 and 7 is proposed to be

pumped to a weir within the open drain. The initial volume
of run-off (up to 200m3) that accumulates on any occasion
after a dry weather period of 72 hours or more is to be
pumped to be collected and reused on-site, with any
additional run-off being discharged to the harbour via the
drain after entrapment and retention of solids in a mudtank.
Existing Outfalls 3, 4, 6 and 7 are proposed to be retained
to cope with run-off generated by extraordinary rainfall
events.
No consent is sought in respect to any outfall numbered 5.

Outfall 6 is a 300mm diameter pipe carrying stormwater
from the superphosphate plant building and from the main
rail siding and adjacent roads. The discharge via the outfall
passes through a suspended solids settlement tank.
Inspection occurs weekly with cleaning out as required.
Records of inspections and resulting actions are recorded
and available to the Council.
COASTAL PERMIT APPLICATIONS

Ravensdown applied to the Council for seventeen coastal
permits in all, basically to replace multiple existing
consents. Various applications related to the continued
occupation of the foreshore by the outfall pipes above-
Outfall 6a has earlier been mentioned. The 150mm
134
washings and stormwater from yards and

buildings.
listed and described. Another application (numbered

94676) related to the taking of up to 541,000 cubic metres
of seawater per month at a rate of up to 17,500 cubic metres
per day from the Harbour for use in cooling and gas
scrubbing. The remaining applications (which effectively
are the ones of concern for present purposes) related to
proposed discharges to the Harbour. Those discharges in
the quantities upheld by the Council are as follows:
The last application represented a request for a new consent

in respect to a discharge that had been occurring without
consent.
The principal evidence in support of the Councils decision
to grant the various coastal permits authorising discharges
into the Harbour, was led from ORCs Senior Pollution
Control Officer, Mr J S Milburn, and from its Director
Resource Management, Mr A J Avery. Their evidence was
given in reference to a set of consent conditions agreed as
between ORC and Ravensdown such set being attached
to this decision as Appendix A. It will be convenient first
to discuss Mr Averys evidence. He helpfully surveyed the
planning framework for managing discharges into the
coastal marine area. In so doing, he considered and
discussed relevant parts of the New Zealand Coastal Policy
Statement (NZCPS), the Proposed Regional Policy
Statement for Otago (PRPS), the Proposed Regional Plan:
Coast for Otago (PRPC) and the Regional Coastal Plan,
deemed to be constituted as such by s.370 of the RMA and
commonly referred to as the Transitional Regional Coastal
Plan (TRCP).
Application 94677 (Outfall 1)

To discharge 218,000 litres per hour of cooling
water from acid coolers in the sulphuric acid plant,
plus an indeterminate quantity of stormwater into
the Harbour, for the purpose of disposal of cooling
water from minor plant, rinse water from the ion
exchange plant, cooling water from acid coolers,
boiler blowdown, plus stormwater from yards and
buildings.
To discharge 8184 cubic metres per day at a rate
of up to 95 litres per second into the Harbour of
cooling water from a steam turbine condenser.
To discharge an indeterminate quantity of water
into Otago Harbour for the purpose of disposal
of auxiliary boiler blowdown, springwater and
stormwater from Ravensborne Road, yards and
buildings, and yard washings.
The TRCP took effect from 1 October 1991, being the date
of the Acts introduction. The NZCPS has been in effect
since 5 May 1994. The PRPS was publicly notified on
1 October 1993. Hearings were held in the early months
of 1995, and decisions released by mid-September that
year. No outstanding appeals affect the present permit
applications. The PRPC was notified on 1 July 1994.
Submissions were heard during September-October 1996,
and decisions released in mid-May 1997. One appeal of
relevance for present purposes is outstanding, namely, an
appeal by the Department of Conservation (DOC). That
appellant seeks to alter the categorisation of coastal
discharge activities from discretionary to non-complying.

To discharge an indeterminate quantity of
stormwater to the Harbour from yards, buildings
and yard washings.
stormwater to the Harbour from yards and
buildings.
In terms of the TRCP, the discharge of stormwater is

permitted by way of a general authorisation, provided that
the discharge is substantially free of waste. Given the
likelihood of a degree of contamination of stormwater from
the plant, the company duly applied for consent. Under
rule 10.5.5.1 of the PRPC, the discharge of stormwater
from industrial or trade premises is a controlled activity.
The remaining discharges were not permitted under the
TRCP. Consent was also required under rule 10.5.8.2 of
the PRPC, being the rule that is subject to DOCs appeal.
Whether the proposed discharges are considered on a
discretionary or non-complying footing, however, one must
have regard to relevant objectives and policies of the PRPC.
Application 94682 (Outfall 6a)

To discharge up to 816 cubic metres per day at a
rate of up to 14.2 litres per second of gas scrubber
effluent into the Harbour for the purpose of
disposal of superphosphate, plant fluoride and
odour scrubber effluent via a multi-point diffuser.
stormwater to the Harbour from the roof of the
bag store, yard and from the acid storage tank bund.
Application 94684 (Open drain to the north of
the site)
Mr Avery spoke of four policies that he considered relevant

in the NZCPS, three objectives and three policies relevant
in the PRPS, and seven objectives and eleven policies
relevant within the PRPC. As regards the TRCP, he noted
that this deemed plan contains various provisions in the
To discharge to the Harbour 5,000 litres per day,

plus an indeterminate quantity of stormwater, for
the purpose of disposal of truck and loader
135
discharges. This improvement in the discharges

will be reflected in enhanced water quality in the
Coastal Marine Area near Ravensbourne. The
proposed conditions of consent require monitoring
that is intended to demonstrate what are the effects
of the discharges. The monitoring should reflect
the improved quality of the discharges and provide
a clear understanding of the suitability of the
conditions of consent.
form of general authorisations and bylaws. The only one

of relevance for present purposes is General Authorisation
No. 10 Stormwater/Drainage Discharges. As already noted,
the company accepted the need to apply for consent in the
circumstances.
Given the lack of any evidence from a counterpart planner
challenging Mr Averys assessment of relevant provisions
of the various planning instruments as mentioned, we do
not consider it necessary to reproduce and discuss at length
the various provisions to which he directed our attention.
Suffice it to say, we have had due regard to all of them and
regard his evaluation as persuasive, to the point where we
are content to adopt all he had to say within the realm of
his expertise. He made it plain, however, that his views
were dependent upon our acceptance of the evidence of
Mr Milburn, inasmuch as the latters expertise falls into
the area of assessing water quality and the effect of the
proposed discharges on the harbour ecology.
Mr Avery reminded us that it is important that the overall

discharges applied for by the applicant are considered as a
whole. He noted that the PRPS provides for the integrated
management of the regions resources. And he noted that
The provisions of The Proposed Regional Policy

Statement need to be read as a whole. Although
the discharge to air and the discharge to the coastal
marine area are dealt with in separate regional
plans the Otago Regional Councils approach is
to consider, in cases such as this, all the discharges
together.
Before passing to Mr Milburns evidence, we would quote

the following passage from the concluding part of
Mr Averys brief:
We bear this passage in mind in approaching our final

evaluation later on.
The objectives and policies of the NZCPS,

Proposed Regional Policy Statement and Regional
Coastal Plan variously seek to preserve, protect,
maintain and enhance the natural character of the
coastal environment, including the coastal marine
area. These provisions reflect that the preservation
of the natural character is a s.6(a) matter of national
importance under the Resource Management Act
1991. The NZCPS makes it a national priority to
protect the natural character of the coastal
environment in term of natural water quality,
and the Proposed Regional Policy Statement and
the Regional Coastal Plan require that water quality
is maintained or enhanced.
Turning to Mr Milburns evidence, mention was made of

extensive technical documentation having been
presented before and during the first instance hearing in
early July 1995. Subsequent to the release of ORCs
decision, further extensive negotiation and consultation
was undertaken, resulting in a modified set of consent
conditions being agreed to between Ravensdown, ORC
and DOC. As noted, those agreed conditions are attached
as Appendix A.
Mr Milburn proceeded to give his expert views and
commentary upon each application by reference to the
proposed consent conditions as above. The thrust of his
evidence was that, in each instance, the relevant discharge
will not have a significant effect upon the receiving waters
consequent upon reasonable mixing and that the consent
conditions would provide an appropriate framework of
control to meet relevant standards, including, particularly
the following provisions from the PRPC adverted to in
Mr Smiths notice of appeal:
The Regional Coastal Plan does not identify any

significant natural features that could be adversely
affected by the discharges. The plan does identify
the waterbody surrounding the outer margin of
the mixing zones as a Coastal Recreation Area.
Therefore any adverse effect from the discharges
would most likely be on natural water quality,
which is important to recreational uses of the
harbour. Poor water quality may adversely affect
any human use values associated with the upper
harbour.
Objective 10.3.1
To seek to maintain existing water quality within
Otagos coastal marine area and to seek to achieve
water quality within the coastal marine area that
is, at a minimum, suitable for contact recreation
and the eating of shellfish within 10 years of the
date of approval of this plan.
And further:
While the Regional Coastal Plan does not identify
the upper harbour as a Coastal Protection Area
with natural values of regional or greater
importance, all of the coastal marine area does
have some natural character that must be taken
account of when considering an application to
discharge into the coastal marine area. It has been
noted in this evidence and will be demonstrated
in Mr Milburns evidence that there has been a
significant improvement in the quality of the
Objective 10.3.2
Taking into account community, cultural and
biological values associated with Otagos coastal
marine area when considering the discharge of
contaminants into Otagos coastal waters.
136
Policy 10.4.3
is assessed under controlled laboratory conditions

to establish whether the effluent is toxic to these
organisms and if so at what level of dilution this
toxic effect does not occur. In this way the validity
of effluent conditions (to prevent adverse
environmental effects) can be scientifically
verified and the effect on the total effluent stream
(rather than individual constituents of the effluent)
on the receiving biota can be measured.
To restrict the discharge of contaminants into

Otagos coastal marine areas where that discharge
would result in a lowering of the existing water
quality and receiving waters after reasonable
mixing and after disregarding any natural
processes that may affect the receiving water.
Policy 10.4.4
Size of the mixing zone

To require an effective mixing zone for discharges
which takes into account the sensitivity of the
receiving environment, the nature of the discharge,
the physical processes being in the area of the
discharge, the community use and values in the
area affected by the discharge, and ecological
values in the area.
The mixing zone for existing consent (3469) is

an area defined by 2 lines at right angles to the
shoreline located 350 metres on each side of
Outfall 6A and a line parallel to the shoreline and
located 250 metres offshore (ie 175,000m2). The
mixing zone proposed for the new consent (94682)
is an area defined by 2 lines at right angles to the
shoreline located 50 metres each side of Outfall
6A and by a line parallel to the shoreline and
located 250 metres offshore (ie 50,000m2).
In relation to the application pertinent to Outfall 6A,

(namely, to discharge gas scrubber effluent into the Harbour
for the purpose of disposal of superphosphate plant fluoride
and odour scrubber effluent via a multi-point diffuser, that
being in substance the principal consent sought),
Mr Milburn commented:
This represents a 70% reduction in the size of the

mixing zone
The diffuser discharge of Outfall 6A is 100 metres
offshore. This diffuser is designed to provide 512:1
initial dilution by jet mixing (which has been
verified by testing) and further dilution by eddy
diffusion in the receiving water. The outfall
pipeline extends out perpendicular to the seawall
and discharge is made on either side of the diffuser
(at 100 metres offshore) parallel with the seawall.
The tidal current direction in this area (ebb and
flood) is also parallel to the seawall. The 50 metre
distance on either side of the diffuser has been
determined to be the area in which initial jet mixing
occurs and therefore the appropriate boundary at
which to determine if the required environmental
contaminant levels have been reached. As pointed
out above this is 300 metres on either side closer
to the outfall than the present mixing zone and
further dilution of effluent with receiving water
occurs outside this initial dilution zone. Current
patterns and dispersion of effluent are parallel with
the seawall and effects perpendicular from the
seawall are of lesser importance. It is therefore
considered appropriate to leave the seaward
boundary of the mixing zone 250 metres offshore
(as is the case with the present mixing zone) which
is some 150 metres seaward of the diffuser.
(a) The proposed consent conditions represent a

significant and substantial improvement in effluent
quality from the previous consent. Key factors of
this are:
A 33% reduction in allowable maximum flow.

A 2pH unit increase in minimum allowable
pH.
An 80% reduction in allowable maximum
fluoride concentration.
A 95% reduction in allowable maximum total
phosphorus concentration.
A 20% reduction in allowable maximum total
suspended solids concentration.
(b) Other key changes of proposed conditions with

respect to existing conditions are the introduction
of whole effluent toxicity testing, a significant
reduction in the size of the mixing zone and a
halving of the allowable fluoride level at the
boundary of this mixing zone, introduction of
weekly receiving water monitoring, substantial
refining of the two year biological and sediment
monitoring programme, and the introduction of a
s.128 review clause to enable the Otago Regional
Council to review consent conditions if the
required environmental outcomes are not being
achieved.
Mr Milburn listed what he termed key features of the

harbour monitoring data in the Ravensbourne area derived
from permit conditions applicable hitherto to Ravensdown.
After commenting on matters of temperature, pH, total
suspended solids, fluoride concentration, water clarity,
nitrate and phosphate concentrations, chlorophyll A, and
trace metals, he concluded:
Whole effluent toxicity testing

A scientifically established and defined procedure
for assessing the effect of an effluent stream on
the biota of the receiving waters. Test samples
are prepared from representative samples of
effluent mixed with representative samples of
receiving water at a range of dilutions. The toxicity
of these samples to marine organisms found in
the receiving environment (in this case a marine
bacteria, a marine algae and a marine invertebrate)
Within the Upper Harbour generally and in the

vicinity of the Ravensbourne works, water quality
is generally good in terms of its ability to support
a normal harbour ecosystem. Obvious visible
changes in colour and clarity occur during periods
137
of high stormwater inflow and during periods of

wave action where fine sediment is resuspended
from shallow seabed area.
applicant, submitters and the Otago Regional

Council and from considerable and prolonged
consultation and negotiations subsequent to this
Hearing. It is also of note that Professor Mladenov,
Associate Professor of Marine Science at the
University of Otago was a member of this Hearing
Panel. These proposed conditions are therefore
considered to represent a well researched,
technically and scientifically valid set of criteria
under which to manage these discharge consents
in a sustainable way.
With the generally good quality of Upper Harbour

water at present and limited effect present
Ravensdown effluent has on this, the substantial
and significant improvements in terms of effluent
quality, effluent management, monitoring and
review outlined in my evidence will clearly
achieve the required objectives of maintaining and
enhancing the water quality in this area as required
by the Resource Management Act, the National
Coastal Policy Statement and the Regional Plan:
Coast.
Neither Mr Averys nor Mr Milburns evidence was

undermined by cross-examination in any significant respect
in our view. We see no good reason not to accept and rely
upon their evidence in support of the coastal permit
applications being upheld on the terms in Appendix A.
Further reference will be made to these consents, however,
in our final evaluation.
Mr Milburn was confident that the water quality criteria

for protection of marine ecosystems and to maintain SG
(shellfish gathering) and CR (contact recreation) standards,
(as required by the Third Schedule of the RMA and as
stipulated in the PRPC), would be met at the boundaries
of the mixing zones proposed under the suggested
conditions of consent. He noted that the relevant zones
would cover a substantially smaller area of the receiving
water than the mixing zone for the current permits; and,
in addition, he considered that further improvement (by
dilution and dispersion) in monitored levels would occur
beyond the mixing zones. He added:
Discharge to Air Permit Applications

Ravensdown applied to the Council for discharge to air
consents from various vents within the plant. The vents in
question are known as Vent A (acid plant), Vent C (steam
vent), Vent D (storage tank venting), Vent E (sulphur
melter), Vent F (den scrubber stack), Vents G and H
(granulation plant hygiene ventilation), and Vent I (Bradley
Mills Nos. 1 & 2).
These proposed relevant conditions will also

ensure that the requirements of s.107 of the
Resource Management Act 1991 (relating to
effects in receiving waters that may not be caused
by discharges of contaminants into water after
reasonable mixing) are complied with.
In relation to these vents, the consents sought were as

follows:
(a)
On the issue of monitoring, Mr Milburn noted that two

broad categories would be involved effluent monitoring
and receiving environment monitoring. His overall view
was expressed thus:
(b)
Proposed effluent quality conditions have been

set to achieve water quality within the Otago
Harbour receiving waters of a high standard
suitable for beneficial uses (maintenance of marine
ecosystems, contact recreational standards,
shellfish gathering standards) and consistent with
policy and plan requirements to maintain and
enhance this water quality.
(c)
Proposed monitoring conditions have been

designed to ensure these effluent and receiving
water standards are being achieved and a review
mechanism is provided in the consents (RMA
s.128) to review the conditions of the consents
should these environmental objectives not be met.
(f)
(d)
(e)
(g)
And to conclude his evidence-in-chief he stated:

(h)
The proposed consent conditions have been

developed as a result of the review of a number
of extensive technical reports provided before and
during the Hearing on these applications by the
(i)
138
Discharge (from Vent A) of up to 25,299 m 3/hr of

dry air from sulphuric acid plant containing up to
2,000 kg/day (or at a maximum of 83 kg/hr of SO 2,
SO3 and acid aerosol.
Discharge (from Vent C) of up to 16,000 m 3/hr of
high pressure steam (when steam turbine is not
working).
Discharge (from Vent D) of up to 150 g/hr of H2S
from dirty sulphur storage tank.
Discharge (from Vent E) of up to 7,000 ms/hr of
steam and up to 150 g/hr of H2S from sulphur melter.
Discharge (from Vent F) of up to 30,000 m 3/hr of
air and up to 0.75 kg/hr of SiF4 and up to 1 kg/hr of
reduced sulphur compounds from superphosphate
manufacturing plant.
Discharge (from Vent G) of up to 12,000 m 3/hr of
moist air and up to 0.5 kg/hr of SiF 4 and traces of
reduced sulphur compounds from granulation
screen hygiene vent.
Discharge (from Vent H) of up to 30,000 m 3/hr of
moist air and up to 0.5 kg/hr of SiF 4 and traces of
reduced sulphur compounds from the granulation
plant hygiene vent.
Discharge (from Vent I) of up to 24,000 m 3/hr of
moist air and up to 2.5 kg/hr of rock phosphate dust
from No. 1 Bradley mill.
Discharge (from Vent I) of up to 25,700 m 3/hr of
discharged as a fugitive emission from

product storage. The methods used shall be
presented to the consent authority prior to
undertaking the study and shall be sufficient
to obtain as accurate an estimate as is
practicable. The results of the study are to
be reported to the consent authority within
15 months of the date of commencement of
this consent.
6. The consent holder shall monitor sulphur
dioxide, fluoride, odour and vegetation in the
surrounding environment in accordance with
Schedule 1 of this consent.
7. (a)
The consent holder shall present the
results of the ambient air and discharge
monitoring required in Schedules 1 and 2 to
the consent authority at least once per month.
(b) The consent holder shall produce a report at
least every two years on all the discharge
monitoring and ambient air monitoring
described in this consent. The report shall
include an analysis of the monitoring data.
The first report shall be presented to the
consent authority within six months of
commencement of this consent.
8. In accordance with section 128 of the
Resource Management Act 1991, the
conditions of this consent may be reviewed
on and in the period within three months upon
the anniversary of the date of this consent,
or within three months upon receipt of any
monitoring information, if the consent
authority finds that monitoring of the exercise
of the consent has revealed that there is or is
likely to be an adverse effect on the
environment.
9. The conditions of this consent may be
reviewed in the period within six months of
the second anniversary of the date of this
consent for the specific purpose of reviewing
the sulphur dioxide monitoring method
described in 1(b) of Schedule 1, and to set
limits on odour emissions from the premises.
10. The conditions in Schedule 2 may be reviewed
by the consent authority upon receipt of
monitoring results in Schedule 1 which
indicate that ambient air levels of
contaminants exceed the following:
(a) SO2 greater than 125 ug/m3 over a 24-hour
mean.
(b) Fluoride greater than 1.7 ug F/m3 air over a
seven-day average.
moist air and up to 2.5 kg/hr of phosphate rock from

No. 2 Bradley mill.
A further consent was sought in reference to (1) fugitive
dust and fluoride from product storage and despatch
facilities; (2) combustion products from diesel-fired heaters
and an oil-fired boiler; and (3) various gases and vapours
from a laboratory fume cupboard.
Consent was granted on all aspects by ORC for a term
similar to the coastal permit consents, namely, until 31
August 2004. The term to that date is accepted by
Ravensdown, albeit that half has elapsed since ORCs
decision.
In the course of the appeal hearing, various versions of
proposed conditions were presented, largely agreed initially
as between ORC and Ravensdown and later fully agreed.
The conditions underwent alteration and refinement as the
hearing unfolded in particular with reference to
instrumental monitoring being undertaken at Mr Smiths
property (109 Ravensbourne Road) directly opposite the
works. Mr Smith expressly indicated his agreement with
this course towards the end of the hearing, but without
prejudice to other matters raised by him and by supporting
submitters.
It will here be convenient to record the conditions as finally
agreed between ORC and Ravensdown, because that will
assist in relating various aspects of later discussion to
particular conditions proposed; also, in assessing the
overall framework of control suggested by the two parties
concerned, in the event of the consents being upheld.
Conditions (as proposed by ORC and Ravensdown)
1.
2.
3.
4.
5.
The consent holder shall control the

discharges from the processes to meet the
standards and conditions according to
Schedule 2 to this consent.
The consent holder shall notify the Council
of intended cold start or heat down operations
in the sulphuric acid plant. In the instance of
a restart after more than eight hours shut
down, the Council must be advised of the time
when sulphur will be ignited and the name
of the person in charge of the procedure.
The consent holder shall notify the consent
authority as soon as practicable of any plant
malfunction or breakdown that results in an
abnormal discharge. The consent holder shall
ensure that any acid leaks are remedied and
the effects mitigated as soon as possible.
The consent holder shall advise the consent
authority of any changes to plant or process
that may change the nature or quantity of the
discharge of any contaminants to such an
extent that they have an effect on the
environment.
The consent holder shall undertake a study
aimed at estimating the quantity of fluoride
SCHEDULE 1
1. Sulphur Dioxide
(a) Sulphur dioxide monitoring in ambient air
shall be carried out at sites located at 18 Matai
Street, 46 Adderley Terrace, and 115
Ravensbourne Road so long as there shall
remain consent from the property owners. In
the event that any one or combination of the
property owners withdraws their consent for
monitoring sites on their property, alternative
sites shall be determined in consultation with
the consent authority. As far as practicable
139
(b)
(c)
2.
(a)
(b)
3.
(a)
4.
(a)
there shall be no less than three monitoring

sites at any time.
At all three sites the method used shall be
AS3580.3.1 1990 (Method 3.1:
Determination of acid gases titrimetric
method) or an alternative method satisfactory
to the consent authority using a 24-hour
sampling period.
Ten minute and one hour average
concentrations of sulphur dioxide in ambient
air shall be measured by instrumental
monitoring for a period of 12 consecutive
months at 109 Ravensbourne Road or at an
adjoining property. The method of
measurement shall be in accordance with
AS3580.4.1. 1990 (Method 4.1:
Determination of sulphur dioxide Direct
reading instrumental method) or an alternative
method satisfactory to the consent authority.
Fluoride
Fluoride monitoring in ambient air shall be
carried out at sites located at 18 Matai Street,
46 Adderley Terrace, and 115 Ravensbourne
Road so long as there shall remain consent
from the property owners. In the event that
any one or combination of the property
owners withdraws their consent for
monitoring sites on their property, alternative
sites shall be determined in consultation with
the consent authority. As far as practicable
there shall be no less than three monitoring
sites at any time.
At all three sites seven-day average
concentrations of fluoride shall be measured
once each calendar month. The method of
measurement shall be in accordance with
AS3580.13.2 1991 (Method 13.2:
Determination of fluorides Gaseous and acid
soluble particulate fluorides Manual, double
filter paper sampling) or an alternative method
satisfactory to the consent authority.
Odour
The consent holder shall carry out a
community odour assessment survey at least
once every two years. The survey shall consult
a random selection of people residing within
the suburbs of Ravensbourne and Maia. Such
survey shall be carried out by an organisation
or individual satisfactory to the consent
authority as being experienced in undertaking
community surveys. The design and extent
of the survey shall comply with recognised
good practice for community surveys and be
to the satisfaction of the consent authority.
Results of the odour survey shall be reported
to the Otago Regional Council prior to 30
June in the year the work was undertaken.
Vegetation
The consent holder shall undertake a monitoring
programme to determine if there are any adverse
effects of fluoride on vegetation in the vicinity
of the works. Monitoring is to take place at least
once every two years, and the first assessment
shall be completed within 12 months of
commencement of this consent. Any assessment
shall be carried out by an organisation or
individual satisfactory to the consent authority
and experienced in determining the effects of

fluoride on vegetation. The results of such
monitoring shall be presented to the consent
authority within two months of completing the
monitoring.
(b) In the event that the monitoring described in
condition 4(a) above shows any significant
adverse effects on vegetation, the consent
authority may, in accordance with section 128
of the Resource Management Act 1991, serve
notice on the consent holder of its intention
to review conditions 4(b), (c), and 5(b) of
Schedule 2 for the purpose of determining
whether these conditions are adequate to
protect against any adverse effect on the
environment caused by the discharge of
fluoride arising from the exercise of the
consent. Such notice shall be given within two
months of receiving the monitoring results
described in condition 4(a) of Schedule 1.
SCHEDULE 2 PROCESS VENTS
STANDARDS
1. Vent A (Acid Plant Primary Discharge)
(a) The discharge from the sulphuric acid
production process shall not exceed 2 tonnes
mass of SO 2 , SO 3 a n d H 2SO 4 per day,
expressed as SO2.
(b) The discharge of sulphur compounds SO 2,
SO 3 and H 2 SO 4 from the sulphuric acid
production process shall not exceed 86
kilograms mass per hour, expressed as SO2
and measured as a one hour average.
(c) A dedicated instrument shall monitor SO 2
continuously in the acid plant stack and the
concentration shall not exceed 3,000 ppm by
volume as a maximum, nor a 24-hour average
of 1,500 ppm by volume. The method of
measurement shall be ISO7935: 1992 (E)
(Stationary source emissions Determination
of the mass concentration of sulphur dioxide
performance characteristics of automated
measuring methods) or an alternative method
satisfactory to the consent authority.
(d) SO2, SO3 and H2SO4 shall be measured once
per week by USEPA Method 8 (Determination
of sulphuric acid mist and sulphur dioxide
emissions from stationary sources) or an
alternative method satisfactory to the consent
authority.
(e) During plant start up from cold, or restart
under hot plant conditions a visible white
plume of acid mist is permitted, but the normal
operational condition of a clear stack
discharge shall apply within one hour of
igniting sulphur.
2. Vent D Storage Tank Vents and Vent E
Sulphur Melter
(a) The combined discharge to air of hydrogen
sulphide from the sulphur melter and sulphur
storage tank vents shall not exceed 150 g/hr,
measured under actual discharge conditions
of temperature and pressure.
(b) The combined discharge from the sulphur
melter and sulphur storage tank vents shall
not be discernible by the presence of odour
attributable to H2S beyond the biological filter.
140
3. Vent F Den Scrubber Stack

(a) The consent holder shall measure the emission
of fluoride, F, from the den scrubber stack
using wet chemistry methods over a one hour
sampling period at least once per week. The
measurement is to be carried out during
superphosphate manufacture and no test may
commence within one hour of starting
acidulation. The method of measurements
shall be USEPA Method 13B (Total fluoride
specific ion electrode) or an alternative
method satisfactory to the consent authority.
(b) The discharge of fluorine compounds from
the den scrubber stack shall not exceed 0.75
kg/hr expressed as fluoride, F, and on a one
hour average basis.
(c) In any period of 12 consecutive months no
more than 10% of test results shall exceed
0.5 kg/hr expressed as fluoride, F, and on a
one hour average basis.
(d) The consent holder shall measure the emission
of reduced sulphides in the den scrubber stack
over a one hour sampling period at least once
per week. The discharge of total reduced
sulphides shall not exceed 1 kg/hr.
4. Vents G and H Granulation Plant Hygiene
Ventilation
(a) The consent holder shall measure the emission
of fluoride, F, from the granulation plant
hygiene vents using wet chemistry methods
over a one hour sampling period at least once
per week. The measurement is to be carried
out during superphosphate manufacture and
no test may commence within one hour of
starting acidulation. The method of
measurements shall be USEPA Method 13B
(Total fluoride specific ion electrode) or an
alternative method satisfactory to the consent
authority.
(b) The total discharge of fluorine compounds
from the two granulation plant hygiene vents
G and H shall not exceed 0.5 kg/hr expressed
as fluoride, F, and on a one hour average basis.
5. Vents I Bradley Mills Nos. 1 & 2
(i) Discharge of phosphate rock dust shall be less
than 2.5 kg/hr. The consent holder shall
demonstrate to the consent authority at not
more than 6 monthly intervals, that these
levels are not being exceeded.
toluene, and heavy metal traces such as cadmium, it was

common ground between the two experts that there is no
likelihood of these being discharged in quantities that
would have a potential to cause adverse effects off-site,
either as individual contaminants or in combination. In
other words, it was indicated that if discharges of the
principal contaminants are suitably monitored and
controlled, with levels being set whereby no significant
adverse effect would be likely to occur off-site, then the
presence of other contaminants could reasonably be
regarded as of minimal import and of no off-site concern.
Acid Plant Discharges and ORCs Position
In granting consent at first instance, ORC limited the total
daily discharge of sulphur dioxide, sulphur trioxide and
acid mist to two tonnes per day. The peak discharge was
limited to 86kg per hour; and a limit was placed on the
concentration of sulphur dioxide in the acid plant stack.
The relevant limits are incorporated in the revised
conditions cited above.
Apart from the major S02 discharge component, discharges
from the acid plant include comparatively small amounts
of sulphur trioxide and sulphuric acid aerosols. There are
also discharges of hydrogen sulphide which are addressed
later under the head of odour. Although sulphur trioxide
is gaseous in form, it typically hydrates with water
molecules in the atmosphere and oxidises so as to form
sulphuric acid. During normal operation, the quantity of
acid mist is negligible by comparison with the S0 2
discharge. However, in start-up situations, more substantial
amounts of acid mist are liable to be released, resulting in
a visible plume. ORC considered that such a plume should
not be allowed to remain visible beyond one hour following
start-up in order to avoid any significant off-site effects.
The requirement for non-visibility to be attained within
such a period was regarded as sufficient to ensure that any
off-site effect from start-ups would be of relatively short
duration and of minor consequence bearing in mind the
constant peak discharge limit of 86 kg per hour of S02, S03
and acid mist (expressed collectively as S02).
On the issue of on-site monitoring, the Council considered
two types of discharge monitoring to be necessary
continuous instrumental monitoring of sulphur dioxide and
weekly manual measurements of both sulphur dioxide and
acid mist. For the latter, an international standard
measurement technique (USEPA) Method 8 was specified
as an appropriate means of measurement for activities of
the present nature. As to the former, continuous
measurement of sulphur dioxide was stipulated because,
in quantity, that contaminant is the most significant item
of discharge.
It will be recalled from the description of the plant and

operations earlier given, that two significant activities
within the works involve discharges to air, namely, the acid
plant and the superphosphate manufacturing plant.
Discharges from the acid plant include sulphur dioxide,
sulphur trioxide, acid mist and hydrogen sulphide. Those
from the superphosphate plant include fluoride, dust and a
range of reduced sulphur compounds. The two air pollution
control experts who gave evidence, Dr T J Brady, a
consultant in private practice called for Ravensdown, and
Mr P E Millichamp, Senior Air Resource Officer for ORC,
were in agreement that the foregoing represent the principal
contaminants in the discharges to air from the works. While
other contaminants are liable to be discharged, including
some hazardous chemicals such as formaldehyde, benzene,
Downwind ambient air monitoring for sulphur dioxide was

also required at three named sites. The monitoring method
comprises what Mr Millichamp described as a relatively
simple wet chemistry technique. It is capable of measuring
141
24-hour average concentrations only. That gave rise to

concern on Mr Millichamps part about the accuracy and
suitability of the monitoring regime. In stressing the
importance of ambient air monitoring as the most reliable
method of determining any potential for downwind effects
on human health, he went on to recommend introduction
of continuous ambient air monitoring by instrumental
methods. He considered that at least one instrumental
monitoring site downwind of the acid plant should be
provided. We refer to and discuss his evidence bearing on
this aspect below. Suffice it to say here, Ravensdown is
agreeable to the introduction of instrumental monitoring
equipment at Mr Smiths property (or at an adjoining
property) for 12 months as recorded in proposed condition
1(c) of Schedule One above.
sulphuric acid, the discharge limits imposed by the Council

were viewed as reasonable and realistically attainable. The
question now is whether those limits are such that residents
within Ravensbourne may reasonably be assured that no
adverse effect of any significance will be caused to them,
or their properties, through the acid plants continued
operation as a single absorption facility. Lower discharge
limits would effectively mean that the acid plant would
either have to be altered at considerable cost or operate
below maximum capacity.
Alternative methods have been considered for the purpose
of achieving an additional slight margin of mitigation.
Possible options would involve replacement of the present
converter catalyst with a more reactive type, such as a
caesium-promoted catalyst, or modulation of the sulphur
feed to catalyst mass and installation of in-stack control
equipment. ORC accepted the companys evidence that
such alternatives would be similarly expensive. Because
of the high cost of attaining any further reduction in
sulphide dioxide discharges, coupled with evidence on
behalf of the company that adverse effects downwind from
the discharges were unlikely, it was concluded that the limit
of 86 kg/hr was supportable against the background of
relevant considerations under the Act.
Under proposed condition 1(e) of Schedule Two, a one

hour limit is intended to be placed on the presence of a
visible plume during acid plant re-starts, having regard to
the discussion above. As noted, when such starts occur,
the plant has the potential to discharge larger quantities of
acid mist contaminants than normal. Although this may
bring about a visible plume, both Dr Brady and
Mr Millichamp were of the view that the one hour
limitation in the condition would be suitably restrictive,
and, taken in conjunction with other limiting conditions,
would serve to minimise any potential for adverse effects
off-site.
According to atmospheric dispersion modelling results

presented for Ravensdown at the original hearing, a
discharge of 86 kg/hr was anticipated to produce maximum
downwind concentrations (beyond the works) below 290
micrograms (mg) per cubic metre for 1-hour averages and
below 60 mg/m 3 for 24-hour averages. Those predictions
were below the Ambient Air Quality Guidelines (AAQG)
published by the Ministry for the Environment (MfE) in
July 1994. It thus appeared to the Council that SO 2
discharges below 86 kg/hr would not cause adverse effects
downwind of the plant. Nevertheless, as Mr Millichamp
pointed out, local meteorological data were not available
at the time. Moreover, it was appreciated that the
Ravensbourne area was difficult to model, given the nature
of the terrain. The Council therefore decided to impose a
requirement for ambient air monitoring downwind so that
model predictions could be checked against actual
measurements. That approach was certainly desirable,
indeed essential. With the benefit of the considerable
volume of evidence presented on appeal, against the
background of modifications agreed to between
Ravensdown and ORC under the set of conditions abovequoted, this Courts judgment must be applied to
determining whether the consents should be upheld by
adoption of the said conditions, or whether (if upheld) the
conditions should be made more stringent or
comprehensive.
Disputation emerged during the hearing over the acid

plants single absorption capability. As explained in
Mr Clarks evidence (see earlier), in order to produce
sulphuric acid, heat is applied to sulphur. In the combustion
process sulphur dioxide gas is produced which, in turn, is
converted through oxidisation to sulphur trioxide in a
catalyst tower. The proportion of SO 2 oxidised to SO3 is
known as conversion efficiency. When converted, the SO3
is absorbable in sulphuric acid solution, thus facilitating
further acid production by increased absorber acid
concentration. It is common ground that a single absorption
plant will generally display a lower conversion efficiency
than one featuring double absorption units. Conversion
efficiencies of 99.7% and higher are achievable in double
absorption plants, whereas, for single absorption plants,
the efficiencies range from 95% to 98%. Hence, as
Mr Millichamp put it, sulphur dioxide discharges from
single absorption plants are higher when compared on a
production rate basis.
To convert the present plant would involve provision of
an extra absorption tower, two additional heat exchangers
and an additional acid cooler. A cost of the order of $3m
was indicated. As matters stand, with the application of
careful management, a typical conversion rate of 98.5%
has been attained at Ravensdown. Against that standard of
performance, ORC decided to impose discharge limits that
could realistically be complied with by the company, given
the acid plants single absorption capability. At a full
production rate of the order of 200 tonnes per day of
Atmospheric Dispersion Modelling

Both Dr Brady and Mr Millichamp gave evidence of
modelling results using AUSPLUME, a model commonly
used in New Zealand and Australia and comparable to the
142
Hill Ridge. Predictions on the isolated and very

steep parts of the hill were also ignored as the
plume is likely to be deflected away from these
areas.
USEPA ISCST (Industrial Source Complex for Short

Times) model. Dr Brady also used the USEPA model
SCREEN 3 to investigate potential effects due to inversion
fumigation (later referred to); and Mr Millichamp, for his
part, ran the screening version of the CTDMPLUS
(Complex Terrain Dispersion) model known as
CTSCREEN.
With this adjustment, the model gives more accurate results

but remains conservative.
After comparing the ten highest model predictions with
the ten highest monitoring results for monitoring years
1995, 1996 and 1997, the model was said to have underpredicted at Ravensbourne Road, slightly over-predicted
at Adderley Terrace and significantly over-predicted at
Matai Street (being the three locations where ambient air
monitoring was undertaken with the consent of relevant
property owners). Against that background, Mr Millichamp
continued:
For Dr Bradys initial modelling work, data from Dunedin

Airport consisting of hourly observations of wind speed,
wind direction, temperature, cloud cover and relevant
weather, were utilised. However, an automatic weather
station has since been installed by Ravensdown at the end
of the wharf ancillary to the works. That station was sited
in the light of advice obtained by the Company from a
meteorologist of repute. While that person was not called
as a witness, Dr Brady expressed the firm view that the
location was appropriate - despite reservations of a witness
called by the appellant, Dr M Legge, a Senior Lecturer in
Biochemistry with the University of Otago. The latter
witness questioned the reliability of meteorological data
gathered from the wharf-end station for incorporation in
modelling work designed to predict effects upon
Ravensbourne. On the other hand, Dr Brady regarded the
location as more suitable than an alternative location
pointed to by various submitters within the residential area
of Ravensbourne itself that site being described as the
Morrison site after its owner, Mr R Morrison, who had
made wind and weather recordings as a layperson. Dr
Bradys view was that the wharf-end station was well
located to obtain good representative sampling of weather
conditions throughout the year in the vicinity of the works
themselves. Consequently, in his view, the modelling could
be expected, with the use of such data, to give a reasonably
accurate picture of likely effects upon residential properties
within Ravensbourne, making due and proper allowance
for complexities of the areas terrain.
The apparently low predictions at Ravensbourne

Road are most likely explained by the presence
of other sources at low elevations causing high
monitoring results. In particular, it is possible that
diesel traffic travelling along Ravensbourne Road
contributes a significant amount to local sulphur
dioxide concentrations. Council monitoring at a
site near Anzac Avenue, a road carrying essentially
the same traffic as Ravensbourne Road, found
background concentrations of sulphur dioxide
average between 10 and 18 mg/m 3. When this
background is added to the Ravensbourne Road
predictions, there is much better agreement
between the model and monitoring. Hydrogen
fluoride discharges from the manufacturing
process may also be affecting the monitoring
results at this site.
The over-predictions at Matai Street, are probably caused

by AUSPLUMEs limited ability to deal with very complex
terrain. At these high elevations the adjusted model is very
conservative and over-predicts by a factor of 1.4 to 4.
Mr Millichamp stated that meteorological data, suitable

for use with the AUSPLUME model, were made available
to the Council for the period May 1994 to April 1995. He
considered the data gave a reasonable representation of
wind and stability conditions for this location. The data
were used to estimate downwind concentrations of sulphur
dioxide resulting from the acid plant discharge at seventysix elevated locations in the Ravensbourne area. His
evidence continued:
After tendering a summary of the results for the seventysix downwind receptor points using the adjusted model,
Mr Millichamp noted that both the maximum and the 99.9
percentile model predictions exceeded the AAQG for all
averaging times except the annual average. (The 99.9
percentile represents the 9th highest prediction from a year
of hourly meteorological data, and is commonly used as a
more reliable and preferred indicator than the maximum.)
Mr Millichamp continued:
Initial modelling results compared poorly with

monitoring data, particularly on the steeper terrain,
so the modelling was adjusted to give a better fit.
This was achieved by allowing for a small amount
of wind deflection caused by the steepest part of
the hill. This is a common occurrence, particularly
during stable atmospheric conditions, which
happen to be when the highest concentrations
occur. AUSPLUME is not capable of modelling
this effect, so an artificial wind shift of 200 was
input into the model to account for plume
deflection around the upper slopes of the Signal
This means there may be a potential for acute

effects on human health at those locations where
the guidelines are exceeded. However, two points
must be made when interpreting these results.
Firstly, all of the worst predictions occur high on the terrain,

or at least 100m above sea level. This is where the model
may be over-predicting by a factor of 1.4 to 4. It is possible
to use a less conservative adjustment for the terrain than
what I have used to give lower predictions. One way of
doing this is to alter the Egan half-height co-efficients for
143
and the amount of the plume which is allowed to

rise up over the hill. These two quantities are
controlled by a parameter called the Egan Half
Height which is normally set at 0.7 for stable
conditions. However this is not appropriate for
the situation where the plume is travelling along
the side of the hill and encountering rolling terrain
as in this case. To overcome this problem I re-set
the half height parameter to 0.5 on the advice of
Dr Bruce Egan who developed the parameter for
the AUSPLUME model and the USEPA.
stable conditions in the Model. These co-efficients are used

AUSPLUME to protect how much a plume is deflected
over the terrain. If the Egan co-efficients are adjusted so
the plume is deflected over the hill at a slightly greater
rate than is normally assumed, it gives predictions that are
below the guidelines for all receptors modelled. This is
the approach taken by Woodward-Clyde in their modelling.
Secondly, the model predicts that the highest concentrations
will occur on parts of the terrain where nobody is likely to
go. The higher steeper parts of the hill are covered in dense
bush and forest. At these locations we are more concerned
about potential effects on vegetation than human health.
Predictions on the areas where there is reasonable access
to people are significantly lower, with the 99.9 percentile
values for 10-minute and 1-hour averages all being below
their respective guidelines. On this basis there is unlikely
to be any adverse effects on human health.
Strong concerns were voiced by the appellant and others

as to the unpredictability of weather conditions in and about
Ravensbourne, including inversion layer phenomena.
Consequently, Dr Brady was pressed in cross-examination
over his confidence in the modelling results, with the
suggestion being put that the meteorological data and the
AUSPLUME model were inaccurate and unreliable, both
individually and in combination. In the event, he remained
firm throughout in maintaining his opinion to the contrary.
On the issue of inversion fumigation he had this to say:
Dr Bradys confidence in results obtained from use of the

AUSPLUME model was greater than that evinced by
Mr Millichamp. Dr Brady spoke of a reliability spectrum
for the models predictions of between 0.5 to 2. In other
words, the range of under-predictability/over-predictability
was said to lie between one-half to a multiplying factor of
two. Like Mr Millichamp, he confirmed that due
consideration needed to be given to the effect of
topography. As he put it:
In addition to the so called normal behaviour of

plumes some other phenomena occur which are
not easy to predict using the common dispersion
models. The most notable of these is the so called
inversion fumigation which relates to the way in
which an elevated plume is rapidly brought down
to ground level during the early to mid-morning
hours. This happens when the plume is trapped
either above or below an inversion layer (if
stability is typical of cold frosty nights with little
or no wind) during the night which is then broken
up by the action of the sunlight on the ground in
the morning. This causes the air mass to be rapidly
rolled over bringing the plume down to ground.
The only model capable of simulating this
phenomenon is the USEPA SCREEN 3 model
which is recognised as a screening model only
and gives significant over-estimates of predicted
ground level concentrations (some times up to 10
times those found in practice). This information
was not included in the original Assessment. The
maximum 1-hour predicted concentration during
inversion break-up fumigation was 270 mg/m3 at
about 3km from the main stack. It is not possible
to say with any certainty where this would occur,
but the most likely places would be either up or
down the harbour and would only last for about
15 minutes or so. I do not consider this to be
significant given the conservatism built into the
SCREEN model.
The manner in which the terrain affects the

dispersion characteristics is complex where there
is elevated terrain. In this case the terrain is
complex if one considers the whole of the harbour
and for elevations up to Signal Hill (about 330
metres). However terrain between the works and
the Ravensbourne residential area can best be
described as rolling. The terrain was gridded from
local maps for the AUSPLUME model.
Dr Brady maintained throughout his evidence that a good

co-relation between modelling results using AUSPLUME
and monitoring data had been obtained such that he felt
able to declare with conviction that no significant adverse
effect would be caused to residents and their properties
within Ravensbourne on the basis of the proposed
conditions agreed as between ORC and the Company. He
considered there to be essentially only two discharges
which are of concern in this application namely, sulphur
dioxide and fluoride. In his view, the model predictions
obtained through the work of his firm (Woodward-Clyde)
agreed very well with the monitoring results for both
sulphur dioxide and fluoride.
In discussing the complex terrain issue, Mr Millichamp

spoke of the AUSPLUME model as having limited ability
to take proper account of such terrain. He pointed to
CTDMPLUS as a better means of approach. Unfortunately,
it was not practicable to use that model in the absence of
more refined input data. However, it was possible to run
the screening version of the model (CTSCREEN), in terms
of which results similar to the highest AUSPLUME results
were obtained, the maximum 1-hour average being 1,494
mg/m3. According to Mr Millichamp:
In support of the AUSPLUME model, Dr Brady had this

to say:
One feature of the AUSPLUME model is that it
is able to account for the manner in which a plume
is affected by the rising terrain as it approaches a
hill. The model user is allowed to vary the amount
of the plume which impacts directly on the hill
144
This appears to suggest that AUSPLUME is

working well, but the CTSCREEN predictions are
likely to be even more conservative than
AUSPLUME because this model assumes
theoretical worst-case conditions can occur. The
worst-case conditions are very stable atmospheres
when the wind blows towards the hill and the
Companys meteorological data confirms that
these conditions are unlikely. It is not possible to
input more realistic conditions into the model. I
therefore believe that the CTSCREEN modelling
is less accurate than the above AUSPLUME
modelling for this location.
Compliance with these limits is designed to avoid health

effects for combined exposure to sulphur dioxide and
particulate matter. In the current instance, particulate matter
is without doubt present, with domestic fuel heaters and
motor vehicles assuming a material role. In fact,
Mr Millichamp expressed the view that the majority of
particulate matter in the area originates from the last two
sources. He pointed out that the main road through
Ravensbourne carries a large volume of traffic and a
significant proportion of this is diesel traffic travelling to
and from the port at Port Chalmers.
Mr Millichamp summarised his conclusions from the

modelling work he undertook as follows:
The 1987 WHO guidelines are under review. Indeed,

Dr Legge produced an updated set derived from the
Internet. Significantly, that latest information appears to
retain the sulphur dioxide levels above-cited. However, it
is worthy of note that the combined presence of particulates
is viewed in the AAQG and other literature as a matter of
particular consideration and concern warranting a
correspondingly careful approach overall. Mr Millichamp
stated that recent WHO research has indicated that most
health effects from exposure to sulphur dioxide alone
appear to relate to short-term exposures (less than 1-hour).
Where health effects are experienced with longer-term
exposures, combined exposure to other contaminants, such
as particulate matter, is usually the case. Plainly, as
Mr Millichamp stressed, it is very important that shortterm or peak concentrations of sulphur dioxide are
maintained within acceptable levels. Mr Millichamp also
noted that effects on vegetation from sulphur dioxide may
occur in time periods ranging over months. He spoke of a
20 mg/m 3 limit for annual average concentration having
been recommended in research literature for forest and
natural vegetation.
In summary, the recent modelling confirms that

the discharge limit imposed by the Council in 1994
is appropriate. Careful interpretation of the results
indicates that a discharge of 86 kg/hr of sulphur
dioxide is unlikely to cause any adverse health
effects downwind. However, it does indicate that
the New Zealand guidelines could sometimes be
exceeded at locations on the steep bush-clad parts
of the hill.
Furthermore, a high level of uncertainty in the model

remains, despite the availability of new meteorological and
monitoring information. In particular, we have relief on
the monitoring information to calibrate the model to give
more realistic predictions, but I believe the monitoring
method employed by the Company may not be sufficiently
reliable for this. If this monitoring were upgraded, we
would have more certainty about the level of protection
against adverse effects.
Downwind SO 2 Effects and Measurements
Mr Millichamp was critical of the current monitoring

programme, inasmuch as 24-hour averages have alone been
measured, with no information on 1-hour or 10-minute
average concentrations. In his view:
Sulphur dioxide is a colourless gas with a pungent and

irritating odour the odour threshold being from some
1300 to 10,000 mg/m 3 in the ambient air. Nevertheless, it
is important to note that public health effects may occur at
lower concentrations with no detectable odour. Such odour
as occurs in the vicinity of the works is normally associated
with reduced sulphur compounds rather than sulphur
dioxide. Effects on human health from exposure to sulphur
dioxide are primarily related to the upper respiratory tract.
Groups more susceptible to risk include asthmatics and
elderly people, particularly those with respiratory or
circulatory problems.
This is a significant drawback because I believe

the shorter time periods are more important for
determining the potential for acute health effects.
Furthermore, while most of the monitoring results are

below the 24-hour guideline, I believe there is a significant
number of 24-hour readings that indicate there is at least a
potential for 1-hour and 10-minute concentrations to
exceed the respective guidelines.
The AAQG is based on 1987 World Health Organisation

(WHO) guidelines under which the following guideline
limits are specified:
500 mg/m 3
350 mg/m 3
125 mg/m 3
50 mg/m 3
Mr Millichamp went on to explain his reasoning for the

above view, not only in relation to information obtained
from another sulphuric acid plant operated by the Company
at Hornby, Christchurch, but by reference to research work
undertaken by the USEPA and from careful consideration
of the modelling results. In his opinion, both the modelling
results and the Companys 24-hour monitoring results
suggest that downwind concentrations of sulphur dioxide
10-minute average
1-hour average
24-hour average
Annual average
145
are high enough to justify a monitoring programme that

includes 10-minute and 1-hour average measurements.
Concern was expressed as to the accuracy of the current
monitoring method for SO2, in that other gases can affect
the measurement including nitrogen dioxide, carbon
dioxide, and hydrogen fluoride (discharged from the
manufacturing process). Reference was also made to the
difficulty of accurately determining whether a monitoring
site is actually measuring the impact from a given source
for consent compliance purposes. As Mr Millichamp
observed:
curing occurs; further, that the granulator features a

ventilation system which discharges directly to the
atmosphere, while diffuse fugitive emissions occur from
the storage areas via various roof vents.
In coming to its original decision, ORC was well aware of
the potential of fluoride to affect plants and grazing
animals. As to human beings, it is generally acknowledged
that health effects are quite unlikely in the absence of injury
to vegetation. In other words, evidence of injury to
vegetation is expected to be apparent well before a level is
reached affecting human health. Fluoride can affect plants
by damaging leaves, inducing change in metabolism,
decreasing growth and ultimately causing death. As one
would suppose, certain plant species are more sensitive
than others, with grapes, stone fruit and rhododendrums
being particularly sensitive. Again, grazing animals that
consume high fluoride vegetation can suffer skeletal and
dental fluorosis. High exposures can also cause bone
lesions, mineralisation of tendons, lameness, loss of
appetite and low milk production. In general, for humans,
however, these effects are comparatively unlikely because
of limited quantity consumption as part of a total diet intake
derived from a range of sources.
The wind can change direction many times during

a 24-hour period. If an individual source can be
assessed, it is necessary to continuously measure
10-minute averages at least at one site and relate
these to simultaneous wind direction
measurements.
We have weighed Mr Millichamps evidence against views

expressed by witnesses for the Company, particularly
Dr Brady and Mr Clark; also against other evidence particularly that of Dr Legge remembering his particular
ambit of expertise and the extent of his knowledge and
understanding of detailed chemistry and other relevant
factors. In our judgment the Companys agreement to
introduce instrumental monitoring at Mr Smiths property
(or at an adjoining property) for a 12-month period is
entirely appropriate; and, if consent is upheld, we would
hold that a second instrumental monitor should be installed
for the term of the consent, or such reduced period as ORC
may agree to in writing after not less than one year, at a
more elevated location within the Ravensbourne residential
area - the specific site to be selected by the Company with
the assistance of its consultant advisors and approved by
the Council.
Under the AAQG, limits are set in relation to effects on

vegetation as follows:
3.7 mg/m 3
2.9 mg/m 3
1.7 mg/m 3
0.84 mg/m 3
0.5 mg/m 3
12-hr average
24-hr average
7-day average
30-day average
90-day average
These limits of concentration are applicable to general land

use. More stringent levels are specified for specialised land
uses such as areas containing vineyards. Again, there is a
conservative 90-day average goal level indicated of 0.1
mg/m 3 HF(hydrogen fluoride)/m 3 for ecosystems of
important conservation value such as national parks,
wilderness or other significant areas. Various reserve or
open space areas exist as part of the wider backdrop of
Ravensbourne. It may be arguable, however, whether any
areas of sufficient proximity for present purposes qualify
under the high conservation category above. Even so, the
AAQG goal level for significant areas of natural character
is noteworthy.
Superphosphate Manufacturing Plant Discharges

As earlier mentioned, discharges from this part of the works
include fluoride, dust and a range of reduced sulphur
compounds. Fluoride is emitted in several forms, the
predominant forms being hydrofluoric acid and silicon
tetrafluoride. A small portion of the fluoride contained in
the rock under process is emitted, with the majority of
fluoride being retained in the fertilizer product itself. The
Company has learnt from experience that rock imported
from certain sources is less ideal for processing than that
from other sources. It need hardly be emphasised that every
care must be taken in ordering and importing suitable rock
for the plants purposes from overseas if the consents
granted by ORC are to be upheld and attendant conditions
complied with.
While some plants can be affected at lower concentrations

than those specified above for general land use, it was Mr
Millichamps opinion that, provided ambient air
concentrations fall within such levels, any effects are
likely to be small in terms of damage to local vegetation,
including residential gardens. We were also referred to
limits recommended by the Australian and New Zealand
Environmental Council (ANZEC) as to levels of fluoride
in forage for preventing adverse effects on grazing animals,
namely:
Much of the fluoride discharge derives from the Broadfield

mixer from whence it is withdrawn and transmitted via
ventilation equipment to the scrubber plant. The scrubber
process has previously been explained. It will also be
recalled that fluoride continues to evolve during the
granulation process, and in the course of storage while
146
40 mg/g of dry tissue

12-month average
2-month average
1-month sample
If consent is upheld, three monitoring sites are intended to be

employed at all times as far as practicable (as per present
arrangements) - the existing sites being at 18 Matai Street,
46 Adderley Terrace and 115 Ravensbourne Road. One sevenday average measurement is to be taken per calendar month
as at present. Mr Millichamp stated that he was satisfied with
the accuracy of recent fluoride monitoring results via the three
sites in question. However, we consider that ambient fluoride
levels should also be monitored at the further site to be selected
for instrumental monitoring of SO2 concentrations.
In Mr Millichamps view, compliance with the AAQG

levels should ensure fluoride in forage remains below (the
ANZEC) concentrations.
In its original decision the Council limited the discharge
of fluoride from the den stack to 0.5 kg/hr. At that stage,
the scrubber produced a very low discharge to air (0.02 to
0.14 kg/hr). On the other hand, with the use of seawater as
a scrubber medium, comparatively large quantities of
fluoride were discharged into the harbour. The relevant
consent, however, was made more restrictive under the
new coastal permit affecting Outfall 6a (refer Appendix
A). The Company appealed and sought modification of
the discharge to air limit.
We have reflected upon the evidence of fluoride monitoring

to date, as well as that in reference to modelling all against
the criticisms advanced by those in opposition. In the process,
careful consideration has been devoted to the evidence of Dr
Doley and Dr Kelly, whose evidence we address shortly under
separate headings. We also bear in mind Mr Millichamps
observation that there are no significant sources of fluoride
in the area apart from the works. Even if one accepts that
relevant modelling predictions appear to fit well with
current monitoring data, the provision of additional evidence
of ambient air fluoride levels via the total monitoring process
over the next 12 months in particular will be of prime
confirmatory significance.
In early 1997 an improved scrubber was installed, thus

reducing the total mass discharge of fluoride into the
environment. Under the upgraded system fluoridecontaminated water is recycled by utilising a cooling pond
system (later referred to), with a greater proportion of
fluoride being retained in the product. Hence, as
Mr Millichamp stated:
The phosphate rock grinding process has earlier been

described. Dust is discharged from the Bradley Mills
through the rock crushing process and from sources such
as vehicle movements over yard areas and product
handling. Potential dust distribution from the Bradley Mills
is controlled by bag filter equipment. The Council imposed
a 2.5 kg/hr limit on discharges from the mills which
condition is repeated in the latest agreed set (see Schedule
2, condition 5). Mr Millichamp commented:
This system achieves a reduction in total fluoride

discharges to the local environment of
approximately 90%, but gives rise to a higher
discharge to air. Consequently the Company
requested to change the discharge limit to 0.75
kg/hr, and allowing up to 1.0 kg/hr for less than
10% of the time.
The conditions controlling fluoride emissions from the den

stack as finally agreed between the Council and
Ravensdown are numbered 3(a) to (d) under Schedule 2
of the proposed set of conditions earlier cited. We return
to the issue of possible fluoride conditions after discussing
the issues of effects on human health and on vegetation
and animals under separate heads.
This limit reflects the very high control efficiency

expected from bag-filtration equipment and will
easily ensure there are no adverse effects from
these sources.
As to the discharge of reduced sulphur compounds from

the superphosphate manufacturing process, or the den stack
in particular, we reserve our discussion for the next two
headings.
The absence of specific quantification of fluoride

discharges from the granulation and storage areas was
strenuously pursued by Mr Smith and others during the
hearing. According to Mr Millichamp, the Council
overlooked imposing any condition as regards the
granulation plant hygiene vents discharge in its original
decision. The conditions now proposed between ORC and
the Company include a requirement for weekly
measurements over a one hour sampling period of emission
of fluoride from the granulation plant, with a total discharge
limit from the relevant vents of 0.5 kg/hr. Evidence for the
Company was to the effect that fugitive emissions from
the storage areas are in all likelihood of minor significance,
having regard to available ambient air monitoring results
coupled with predictions gained from modelling work
undertaken. Be this as it may, the Company is willing to
undertake a study of the matter (proposed condition 5).
Effects on Human Health

Evidence was adduced for Ravensdown from Dr F Kelly,
a private consultant specialising in Public Health Medicine.
In discussing the effects of human exposure to sulphur
dioxide she stated:
The degree of exposure to sulphur dioxide that
is associated with bronchitis or asthma in humans
has been extensively studied both experimentally,
for example by measured exposures in a laboratory,
and epidemiologically, by looking at the effects
on populations who live in polluted cities. Both
types of evidence have been reviewed in the
process of establishing health based ambient air
quality guidelines.
147
Effects of concern to the health of existing

asthmatics have been demonstrated during
experimental exposure to short-term sulphur
dioxide levels of 1000 mg/m 3 . Evident
bronchospasm (a definite asthma attack) occurred
at concentrations of 2600-2700 mg/m3. Exercise
increases susceptibility to the atmospheric
exposure, through movement of air through the
mouth, bypassing the protective mechanism of the
nose, and increasing respiratory volumes. The 10minute guideline levels recommended by the
Ministry for the Environment (1994) and World
Health Organisation (1987) are set at half this level
of effect, based on the cited experiments.
extent, up the Harbour towards Dunedin City with a

particular potential in the former case for downwind
dispersal over various residential slopes of Ravensbourne.
As to sulphur trioxide and acid aerosols, Dr Kelly had this
to say:
Sulphur trioxide releases acidity within the
airways when inhaled, with similar types of
adverse effects to those associated with sulphur
dioxide. However, the concentration associated
with such effects is less.
The Ministry for the Environment (1994) refer to
experimental findings that exposure to 350-500
mg/m 3 of sulphuric acid was associated with
increased respiratory rate and decreased maximal
flow, with a lowest effect during exercise at 100
mg/m 3 in adolescents with asthma. The World
Health Organisation (1987) guidelines conclude
that situations that would be of concern for
monitoring purposes would be those where
humans were exposed repeatedly to concentrations
at or above 10 mg/m 3 for sulphuric acid or
equivalent acidity of aerosol.
For effects from exposure which is ongoing

through the day, both guideline reviews concluded
that the minimum level of sulphur dioxide likely
to produce health effects was a 24-hour mean
(average) exposure of 250 mg/m3. Both air quality
guidelines are recommended at 125 mg/m3, which
provides a protective factor of two.
After citing the AAQG recommended guidelines, Dr Kelly

pointed to the Councils Proposed Regional Plan: Air for
Otago (PRPA) under which a 2-tier system of air quality
has been adopted. The first tier comprises the AAQG levels
that are designed to protect the health of the population
generally. The second tier levels are viewed as appropriate
goals for Otago, because (as the PRPA states) much of the
regions air quality is well within national guidelines. For
short-term exposures, the PRPA goal levels are set at 66%
of the AAQG levels, the latter being presented as alert
levels. Hence, under the PRPA, the following guideline
limits are specified:
330 mg/m 3
230 mg/m 3
80 mg/m 3
The amounts of sulphur trioxide aerosols present

among the Ravensbourne discharges are at
approximately 1:1200 the concentration of sulphur
dioxide. At these amounts, the adverse effect
additional to that from the sulphur dioxide will
be minor.
In discussing the effects of exposure to particulates,

Dr Kelly again relied on evidence of Dr Brady as to the
likelihood of suspended respirable particulate matter being
emitted in conjunction with particulate of larger size
ranges; also on the evidence of Mr Clark as to overall
measures adopted as part of the works management in
the control of dust emanation from the site. On the basis
of those witnesses evidence, Dr Kelly perceived no likely
health problem to residents of Ravensbourne. She also
referred to evidence of low levels of inorganic material
obtained by the Company from dust deposition gauges
located at 115 Ravensbourne Road and 46 Adderley
Terrace. By contrast, a gauge located at a site in the vicinity
of a quarry within the wider industrial area preceding the
works, (as one approaches Ravensbourne), was said to have
indicated variable and sometimes high deposition rates of
inorganic material.
10-minute average
hourly average of 10-minute means
24-hour average
In advancing her opinion that discharges of SO 2 from the

works will not have adverse effects on the health of
residents, (including children and people with respiratory
problems), Dr Kelly made it plain that her evidence was
based on her acceptance of Dr Bradys evidence of
predicted levels for 10-minute and hourly averages; also
on annual average figures supplied by Dr Brady from
monitoring at Ravensbourne Road, Matai Street and
Adderley Terrace, for which figures were cited of 0.2 mg/
m3, 11 mg/m3 and 7.4 mg/m 3 respectively.
We accept that the two main sources of inhalable dust via

the works are, first, the Bradley Mills on account of the
rock grinding process, and secondly, fugitive dust
generated by on-site activity associated with truck loading
and truck movements - largely at the southern part of the
site. Dr Brady indicated that 25% of windblown
particulates from the Bradley Mills would be expected to
be 10 microns (mm) or less (that is, within the category
commonly referred to as PM10); also, that predicted ambient
24-hour average exposure levels within 100 metres of the
works lay at no more than 1 to 10 mg/m3. In this context,
From his modelling predictions, Dr Brady concluded that,

save for occasional instances, the PRPA guidelines would
be achieved, with the AAQG being achieved constantly.
While respecting Dr Bradys expertise and experience, we
found Mr Millichamps evidence compelling on the issue
of instrumental monitoring having regard, inter alia, to
difficulties pointed to in the modelling work based on the
irregular terrain and wind variability factors. In this context
we bear in mind that the prevailing winds were shown to
lie broadly up and down the Harbour, that is, down the
Harbour towards Port Chalmers, and, to a somewhat lesser
148
the important interrelationship with the control of dust

generation from truck movements and other general onsite activities must be borne in mind those matters being
dependent upon good staff management, as Dr Brady
pointed out and Mr Clark acknowledged.
methyl mercaptan will produce eye and mucus membrane

irritation, headache, dizziness, nausea and vomiting in
humans following exposure to concentrations of 4 ppm
(8000 mg/m3) for several hours. For present purposes we
accept the evidence for the Company that physical effects
of the kinds mentioned would not arise unless emission
levels were greatly higher than intended, with little or no
controls in place. In practical terms, it is the prevalence
and degree of odour which is the important test factor,
because different compounds have relatively low odour
thresholds at levels far removed from actual physical injury
of the kinds mentioned. However, the matter does not rest
there. Odour in itself may, depending on the circumstances,
including its nature and degree plus the characteristics of
the individual recipient, be annoying or irritating in some
cases to the point of causing actual physical effects in others
such as nausea, retching and sweating. As Dr Kelly
observed:
According to Dr Kelly, the main health effects of rock

phosphate dust would be general irritation of the respiratory
tract, the potential for those effects being dependent on
the degree of exposure. In general terms, she stated
dust exposure, or particulate, is of concern
as a possible cause of aggravator of lung diseases.
To produce effects on the human lung particulate
must be of a small enough size (less than 7 to 10
mm) to pass the protective barrier of the upper
respiratory tract. The deposition pattern for fine
particles (less than 2.5 mm) within the lungs
depends on whether the person is exercising, or
breathing through the mouth versus the nose.
Unpleasant symptoms are a result of sensory

stimulation and perception and therefore may vary
with each person. The severity of symptoms is
not necessarily related to the actual concentration
of the odour stimulant. Complaints of odour effects
can be more frequent in situations where variable
presence of low concentrations produces
intermittent odour.
Total suspended particulate PM 10 levels specified in the

AAQG for 24-hour and annual averages are 120 mg/m3
and 40 mg/m3 respectively. The PRPA, however, has
reflected increased international concern over the health
effects of PM10 by providing a 24-hour goal level of 50
mg/m3.
Dr Kelly discussed a particular concern of some objecting
parties in relation to cadmium presence in phosphate rock
and potential health effects. She acknowledged that
cadmium is present as a trace element in the rock and hence
minutely in the dust from the process. However, from her
own knowledge and researches she was unable to identify
any significant risk of harmful cadmium exposure through
inhalation of wind-borne phosphate dust. Dr Legge referred
to a report in which it was stated that the absorption of
cadmium by inhalation is of obvious significance for
humans in the industrial environment. But we accept Dr
Kellys evidence in rebuttal that, having consulted with
the author, the statement in question was not related to
phosphate dust. Neither did the report conclude that
fertiliser workers were unduly exposed to cadmium as a
working sector group. Dr Kelly stated that the main human
health interest in the presence of cadmium in rock
phosphate lies in the elements subsequent uptake from
soils into the food chain. Yet she made no suggestion,
neither was there any other cogent expert evidence to
indicate, that there would be any likelihood of an adverse
effect from such a source, given the framework of consent
conditions proposed by the Council and accepted by
Ravensdown.
We address the issue of odour under the next head.

On the question of health effects from fluoride discharges,
Dr Kelly observed that, under the AAQG, guidelines are
specified that are designed to avoid adverse effects upon
vegetation. Because plants are much more sensitive to
fluoride than humans, Dr Kellys straightforward view was
that, if the guidelines applicable to plants are met, then
human health effects would not be an issue. This view was
challenged by various opposing parties as over-simplistic.
It was contended that evidence for the Company failed
adequately to address the issue of potential effects on
humans from the consumption of food containing fluoride.
The general proposition that effects on humans are unlikely
because of a variety of food intake origin was said to
involve an assumption that ought not to be made for those
inhabitants of the Ravensbourne area who place high store
upon their vegetable gardens. Put another way, it was
suggested that the evidence of Dr Kelly, in combination
with that of Dr Doley (shortly to be discussed), failed to
acknowledge the importance of home-grown food to
various inhabitants of Ravensbourne. As to suggestions
made to Dr Kelly that animals could well be adversely
affected by fluoride intake from digested pasture, she
responded that if any animal owner were to entertain a
concern for his or her animals welfare, a urine test could
easily be sought through a veterinary adviser. But she also
disclaimed any likelihood of adverse effects being caused
to animals on account of fluoride discharges from the works
at contemplated levels of control. We return to discuss the
question of fluoride effects on animals and humans shortly.
In referring to effects from discharges of reduced sulphur

compounds, Dr Kelly referred to types of injuries that can
occur to humans from various substances. For instance,
dimethyl sulphide and dimethyl disulphide were said to
have been reported as skin and eye irritants in animal
experiments at doses more than a thousand fold above
odour thresholds. Again, research has indicated that
149
Odour
In past cases, hydrogen sulphide has been used as a prime

indicator for odour assessment purposes. Yet despite its
likely presence as a predominant chemical, co-relation
difficulties have been experienced with odour monitoring.
Since the time of ORCs first instance decision in the
present proceedings (as long ago as 30 August 1994),
developments have occurred in the field of olfactometry
that have aided assessment of odour impacts from industrial
processes. Those developments were summarised by Mr
Millichamp as follows:
Sources of odour include the superphosphate

manufacturing process, sulphur-handling operations,
sulphur melting, and fugitive emissions from
superphosphate storage and handling. In fact, all parts of
the works that emit reduced sulphur compounds are
potential odour creators. Nevertheless, viewed realistically,
we agree with Mr Millichamp that the principal source of
odour is very likely the den stack.
Despite extensive research and trial work, there is no

current technical solution available to achieve 100% odour
reductions. However, there are means available to achieve
notable reduction. With the use of alkaline hypochlorite
solution, the Company achieves around 85% reduction
efficiency. With the plant as it exists with its current
scrubber system, that approach appears to be the most
practicable option. Mention has earlier been made of the
new scrubber that was installed in 1997, thus facilitating
an obvious improvement in efficiency levels. Any
significant improvement beyond present conditions could
only be achieved at major additional cost with installation
of a still better system.
Whether an odour is offensive and adversely affects the

environment is subjective and not easily assessed. The MfE
publication, Odour Management under the Resource
Management Act (June 1995), is a worthwhile source of
initial reference. In that document, detection and recognition
thresholds are pointed to as factors in appraising an odour the detection threshold for odour being the lowest
concentration at which 50% of the population can detect
the smell. A critiqued review of odour threshold units
published by the American Industrial Hygiene Association
is cited by the MfE as another useful source.
Ministry for the Environments Guidelines

for Odour Management in 1995, after
producing a discussion document in July
1994.
Two dynamic dilution olfactometry systems
established to comply with strict European
standards.
Odour dose-response studies undertaken near
major odour sources, including the Tasman
Pulp Mill near Kawarau in early 1996. These
used olfactometry measurements at source
and community odour survey techniques
borrowed from Dutch researchers.
Lincoln Environmental produced Guidelines
for Community Odour Assessment for the
Ministry for the Environment in early 1997.
We accept that in ensuing years since the ORC hearing an

improved understanding of odour and odour assessment
techniques has come about. Even so, there are still
significant difficulties in measuring ambient air
concentrations for odour effects. In fact, as Mr Millichamp
noted, downwind odour remains assessable on an indirect
basis only either by utilising an indicator chemical
approach for monitoring purposes such as hydrogen
sulphide, or by undertaking well organised scientific
surveys to gauge levels of annoyance in the local
population. We accept Mr Millichamps evidence that
ambient hydrogen sulphide monitoring would be unlikely
to provide a reliable indicator of odour effects for present
purposes. Rather, if consent should be upheld, statistically
accurate random surveys, employing sound protocols,
would need to be carried out at reasonable intervals at the
consent-holders expense. The conditions of consent
proposed as between the Company and ORC contain a
provision that would allow for the foregoing on a twoyearly basis.
When odour is experienced off-site from Ravensdown, a

major cause is doubtless attributable to hydrogen sulphide.
Nevertheless, as Mr Millichamp pointed out, other reduced
sulphur compounds such as methyl mercaptan and
dimethyl sulphide may at times be more significant than
hydrogen sulphide in causing odour effects. The extremely
odorous nature of these various chemicals is well-known.
As Mr Millichamp commented:
Odour effects occur at concentrations well below
those that cause any other effect on the
environment. For example, hydrogen sulphide has
an odour threshold that ranges from 0.7 to 10 mg/
m 3 and safe health exposure concentration
(workplace exposure standards) of 10,000 to
14,000 mg/m3. Methyl mercaptan has an odour
threshold of 0.04 to 80 mg/m 3 compared to
workplace exposure standards of 980 to 1000 mg/
m3. This shows that major odour problems will
occur long before any physical health risk. The
NZAAQG for hydrogen sulphide is 7 mg/m3 and
this is based on odour effects.
After weighing all the evidence bearing on the odour issue,

including the anecdotal evidence of various opposing
parties or their representatives, we find ourselves broadly
in agreement with Mr Millichamps evaluation and
conclusions. Additional to the survey requirements,
discharge monitoring for hydrogen sulphide will serve as
a useful basis for indicating odour discharge potential, as
Mr Millichamp noted. He also recommended that
occasional olfactometry measurements of odour discharges
be undertaken to complement those measurements.
However, the agreed conditions between the Company and
150
ORC do not contain such a requirement - bearing in mind

the obligation otherwise resting on the Company to
commission an independently reliable community survey
every two years. While we consider the survey approach
to be reasonable, if results from the procedure should point
to any significant level of community annoyance or
concern, we would expect ORC expeditiously to consider
the introduction of amended conditions under s.128 of the
Act, including possible specification of olfactometry
measurements.
Science at the University of Queensland. Previously he

was Head of the Department of Botany at that University.
His research interests in the area of air pollution were
outlined as follows:
The physiological and morphological effects of
gaseous pollutants, especially fluorides, on plants;
The plant and environmental factors affecting
fluoride uptake by leaves and its redistribution
in plants;
The influence of pollutants on plant growth and
ecological processes;
The development and application of air quality
guidelines, especially for fluoride and sulphur
dioxide, to protect Australian vegetation;
The biological monitoring of atmospheric
pollutants using plants, and the application of
plant physiological and ecological principles to
the management of vegetation in industrial
environment.
As we have noted, it is not possible for the Company to

achieve a position with the currently existing plant whereby
no off-site odour will ever be detected. In other words,
there will be a continuing situation of occasional odour
detectable beyond the works. Even so, we accept the
evidence for the Company and ORC regarding appropriate
measures to meet the legitimate concern of ensuring that
off-site odour effects will not be so noticeable and
unpleasant that a significant adverse effect could
reasonably be said to exist as regards Ravensbourne
residents. We would add, however, that if results of the
intended surveys should prove contrary to expectations,
then the Company, for its part, may have to face up to
installing enhanced scrubber equipment at commensurate
expense if operations are to continue at the site unabated.
On 14 and 15 January 1998, Dr Doley undertook a survey

of vegetation in the Ravensbourne area. The survey
embraced a number of representative sites, namely, the
Moller Park Bowling Club grounds, Black Jacks Point,
117 Ravensbourne Road, Adderley Terrace at its western
end, Mr Morrisons property at the corner of Matai Street
and Junction Road, and several other sites in the
Ravensbourne town area which were examined
comparatively briefly. Under cross-examination, Dr Doley
indicated that he had looked at the vegetation around
Moller Park and on the Companys own land.
Before leaving this head, mention should be made of an

odour survey undertaken in 1994 by Lincoln Ventures
Limited, known as the Tipler Report after its main author.
Mr Millichamp had this to say in reference to that report:
The survey was stated to be a visual survey using sensitive

indicators - that is to say, a visual appraisal of various
leaves or items of foliage from species particularly
susceptible to fluoride injury as located within different
areas examined. No material was gathered for chemical
analysis because that was deemed unnecessary, given the
apparent lack of any significantly widespread effect on
vegetation on visual examination. At each inspection site,
the number of trees inspected varied between one to ten.
At least twenty leaves were examined on each tree
investigated, with data being gathered from between fifty
to seventy locations overall. In selecting species for
examination, Dr Doley relied on his expert knowledge and
experience. Regard was had to the sensitivity of species
and their relative prevalence.
Dr Doley summarised his conclusions as follows
(paragraph nos. omitted):
This was primarily aimed at estimating emission

rate from the works by back calculating from
downwind odour observations with the use of a
model. The work is now out of date, partly because
the Company has since increased the height of
the den chimney. Furthermore, direct
measurements undertaken in 1996 appear to show
that those estimated by Lincoln Ventures Limited
were not correct. In any case, the Lincoln study
did not use methods that are now considered
necessary for a statistically reliable community
survey.
Considerable mention was made of the Tipler Report

during the hearing. While pointed to and relied on by
various opposing parties as evidencing a significant odour
problem associated with the works, it was criticised as to
its methodology and conclusions by Dr Brady and Mr
Millichamp. All in all, we were left unsatisfied that the
Tipler Report could be treated as a worthwhile source of
information in the absence of more recent survey results
employing recognised assessment techniques.
Visible effects of fluoride or other atmospheric

stresses associated with the operation of the
fertiliser works could be detected clearly within
the site, and much less pronounced symptoms
could be detected away from the site.
Effects on Vegetation, Animals and Humans

Injury to a sensitive individual of Pinus radiata
at 117 Ravensbourne Road was attributed to
fluoride. The extent of this injury was designated
as Category 3 at the time of inspection, but before
the commencement of the current seasons growth,
In addressing the question of effects on vegetation,

evidence was led for Ravensdown from Dr D Doley,
Chairperson of the Board of Studies in Environmental
151
the injury category would have been 4. This

represents a substantial and adverse effect.
However, an adjacent individual of the same
species was free from visible injury, and other
trees at about the same distance from the fertiliser
works were free from injury (Category 0), or
showed limited injury consistent with Category
1.
proposed by ORC and Ravensdown regarding vegetation.

His response was:
An inspection programme could be as detailed
as you wish to make it but if one of the
considerations is reasonable economy then I
suggest that the type of inspection that was carried
out for this hearing would be appropriate.
Garden plants in premises inspected at 117

Ravensbourne Road and at the corner of Matai
Street and Junction Road were considered to be
free from fluoride injury. The garden at 117
Ravensbourne Road had been tended carefully,
and all plants appeared to be healthy. The garden
at Matai Street was more exposed to wind injury,
and this would also have contributed to injury
attributed to water deficits at some period during
the summer.
A little later he advanced what he termed two principal

reasons for this view one being the scale and terms of
geographic extent and the relatively limited degree of
potential impact; the other that more quantitative study
such as physiological or ecological studies would be
enormously expensive and probably no more conclusive
than the survey that was conducted for this hearing. As to
potential effects of fluoride upon grazing animals, it was
noted that animals observed at 117 Ravensbourne Road
appeared not to be commercial in their orientation.
However, it was conceded that
The occurrence of injury attributable to fluoride

could be masked in some situations by the injury
caused by wind. However, the area in which wind
injury was most prominent was the Ravensdown
site itself and the roadway on the eastern shoulder
of Black Jacks Point, which is immediately
adjacent to the works.
if those animals are living continuously on

pasture in that location then it is possible there
may be effects on such animals (and) whether that
constitutes a sufficient justification for a fluoride
monitoring programme in pastures is something
that would need to be considered.
It is concluded that, with the exception of one

Pinus radiata tree at 117 Ravensbourne Road,
there were no examples of adverse effects of
fluoride emissions from the Ravensdown works
on vegetation outside the works perimeter.
Another question raised by the Court was whether a

monitoring programme should be aimed at investigating
potential adverse effects of sulphur dioxide on vegetation
as well as fluoride. In answer he stated:
In explaining what was meant by adverse Dr Doley

indicated that for normal purposes anything within
Category 3 or above (in a range of 1 to 6 for Pinus radiata
and 7 for Coprosma species) could be regarded as adverse.
More specifically, Category 4 was said to be representative
of the least severe symptoms that would be apparent to a
casual observer and could reasonably be judged offensive
or objectionable to such an extent that it has an adverse
effect on the environment. The average home gardener
would be likely to be offended by these conditions in
horticultural specimens. Category 3 injury, on the other
hand, might be offensive to a dedicated home gardener.
Again, if one were talking of a horticultural/nursery
activity, a plant injury falling within Category 1 might be
deemed adverse.
Ideally yes, but the difficulty is when both of

these agents are present at levels at or below the
air quality guidelines for separation of effects in
either visible or functional terms is very difficult.
We are bound to say that evidence of the survey conducted

by Dr Doley fell short in convincing us that the effects of
fluoride from the works upon vegetation in Ravensbourne
have been fully identified and assessed. As Dr Doley
himself acknowledged, a single observation of vegetation
may not provide a sensitive temporal description of
exposure to a fluoride source with varying rates of
emission, although a knowledge of the seasonal pattern of
vegetative growth and the pattern of foliar injury can assist
in the identification of periods of greater or lesser fluoride
exposure. Dr Legge, for his part, expressed concern at the
absence of long-term monitoring of the effects of
discharges from Ravensdown to prove whether or not there
have been any significant long-lasting effects on vegetation
in the Ravensbourne area. In his view, surveys of the kind
undertaken by Dr Doley serve only to demonstrate the
absence of immediate to short-term effects, without
elucidating the position as to long-term cumulative effects.
In response, Dr Doley asserted that plant response to
pollutant exposure is not simply a function of pollutant
concentration. Furthermore, visual injury symptoms in
plants may be caused by more than one agent, and the
distinction between those agents at any site is rarely
While there was no evidence to indicate the presence of

any significant horticultural or nursery activities in
Ravensbourne, there was nevertheless evidence indicating
that various landowners take a pride in their individual
outdoor areas, whether comprising gardens within
residential sites or more extensively within lifestyle blocks.
There is also the presence of Moller Park, Black Jacks
Point, and areas of bush reserve on the higher slopes of
Ravensbourne.
Dr Doley was asked in questions raised by the Court to
indicate what he considered appropriate by way of a
monitoring programme for the purpose of the conditions
152
straightforward. It was pointed out that long-term effects

of sulphur dioxide depend upon the concentrations
occurring over the relevant term. In Dr Doleys opinion, a
restricted geographic source with significant rates of
pollution emission spanning some 60 years would be
expected to be associated with a pattern of distribution of
effects consistent with the nature of the source and the
factors influencing pollutant dispersion. No such pattern
was discernible in the Ravensbourne area from his
inspection and investigation.
be permissible under the conditions proposed between

ORC and the Company), it was Dr Doleys evidence that
half a kilogram of say silver beet would need to be
consumed in order to get one milligram of fluoride per
day which is the normal healthy human dose.
Effects on Property
Considerable concern was raised by Mr Smith and other
opposing parties over actual and potential effects to
property via discharges from the works, including corrosion
or other deterioration of roof surfaces (including
undersides), car bodies and etching of windows. Concern
was also expressed at excessive presence of dust. From an
inspection of Mr Smiths and a neighbours properties,
carried out by consensus in the course of the hearing phases,
it did appear that there was evidence of some adverse effect
to roofing materials and window surfaces. A dust film was
also noted on electronic equipment within Mr Smiths
premises. Yet the Company has consistently disclaimed
responsibility and pointed to a lack of sufficient evidence
to prove causation. Mr Smith gave evidence of his having
sought the assistance of a scientist from the University of
Otago to investigate the cause of perceived corrosion
damage on his behalf. However, a causative link was not
satisfactorily established in our opinion, the person
concerned not being called to give evidence.
The issue of actual and potential effects on vegetation is

far from straightforward. The basic difficulty is that the
pursuit of significant additional information would involve
major expense, coupled with an attendant risk that in the
end no positively worthwhile conclusions could be drawn.
Hence, having anxiously considered all the criticisms raised
by or on behalf of the various opposing parties and the
evidence given by them or on their behalf, we feel driven
to conclude that the approach proposed in the conditions
tendered by ORC and Ravensdown as regards vegetation
would represent the best practicable option at this point,
provided other conditions controlling discharges of fluoride
and SO 2 are consistently met. In other words, applying
our best judgment at this stage, we are prepared to uphold
the relevant conditions if consent is granted, but on the
basis that the Companys performance as revealed in the
instrumental monitoring results proves to be generally to
a standard contemplated by the PRPA goal levels. Should
that level of general performance be lacking, then we would
expect ORC to give consideration to its powers of action
under s.128, against the background of the Acts purpose
and relevant regional planning policies and objectives
(shortly to be discussed).
We appreciate that Mr Smith and others are quite convinced

that chemical discharges from the works, particularly the
acid plant, have produced and are continuing to produce
adverse effects upon their properties. We also acknowledge
the sincerity of their views. Viewed objectively, we
consider there are at least grounds for suspicion of an interconnecting linkage via past levels of discharge. On the
basis of performance that would be anticipated if consent
should be upheld, any effects on property ought not to be
of significance or concern. This, nevertheless, is subject
to remarks later recorded in reference to the Companys
scrubber effluent cooling ponds. On the dust issue, we have
earlier emphasized the need for high standards in
controlling dust generation as a matter of good on-site
management, and for the covering of loaded trucks exiting
the works. Essentially, these are factors going to
responsibility in land use. We come to discuss the issue of
monitoring for particulates later on.
Evidence as to potential effects on animals was not of such

clear and apparent concern in our view, when assessed
overall, as to demand an approach to vegetation monitoring
beyond that contemplated by the Council provided, of
course, that the survey work is responsibly carried out by
a person duly skilled and qualified. On this score, we recall
the strongly-held convictions of Ms Gibb in the
presentation of her case, but also observe that no one was
called with a veterinary background to testify that any
grazing animal in the Ravensbourne area was actually
ailing from excessive fluoride intake. Finally, we accept
the basic thrust of Dr Kellys evidence that potential effects
on humans would not be of such significance as to raise
concern over matters relating to health, provided that the
instrumental monitoring results confirm the level of
performance in complying with relevant discharge limits
predicted by Dr Brady on behalf of the Company. We also
note Dr Doleys evidence that there would not be a need
for residents to pre-wash home-grown produce more
extensively than would normally be appropriate for
ordinary purposes of hygiene. As he observed, the critical
issue is the quantity of fluoride ingested in the course of a
day as part of a healthy diet. If an area were subjected to
elevated fluoride emissions, (exceeding those which would
Relevant Planning Provisions

We have earlier referred to the evidence of ORCs Director
Resource Management, Mr A J Avery, in reference to the
coastal permits. His evidence also embraced a
comprehensive summary of the planning framework for
managing Otagos air resource. This involved consideration
and discussion of relevant contents of the PRPS. He noted
that there are no outstanding appeals liable to affect the
present discharge to air applications. Again, we were
referred to the Transitional Regional Plan (TRP),
constituted by s.368 of the Act and operative since the Acts
153
the consents process and enforcement action to

avoid, remedy or mitigate adverse effects on the
environment.
inception. That plan underwent alteration by TRP Change

1: Air Discharges which was publicly notified in October
1994. The third relevant planning instrument alluded to
was the Proposed Regional Plan: Air for Otago (PRPA)
which was publicly notified on 28 February 1998.
In terms of the PRPA, Mr Avery cited objective 6.1.1:

To maintain ambient air quality in parts of Otago
that have high air quality and enhance ambient
air quality in places where it has been degraded.
Obviously, the planning framework in existence when the

Council heard Ravensdowns applications five years ago
has undergone notable change and development, in that
the TRP Change 1: Air Discharges was promulgated not
long after the Council made its decision re Ravensdown,
and later became operative in 1996; furthermore, the PRPA
was promulgated in February last year. Not surprisingly,
the various instruments contain a range of objectives and
policies relevant for present purposes. In terms of consent
requirements for the proposed activities, rule 3.5.2.1 of
the TRP Change 1 classifies the relevant discharges on a
discretionary activity footing. Rule 16.3.5.7 of the PRPA
makes similar provision.
Also objective 6.1.2:

To maintain a standard of local air quality which
avoids adverse effects on
(a) Human health;
(b) Cultural and amenity values;
(c) Ecosystems and the plants and animals within
them; and
(d) The life supporting capacity of air.
As Mr Avery noted, both objectives seek that air quality

be maintained; and, in the case of areas of poor air quality,
that that quality be enhanced. The following policies from
the PRPA were also cited:
Mr Avery identified one objective and two policies in the

PRPS, one objective and two policies in the TRP, and two
objectives and three policies in the PRPA of particular
relevance. He attached a complete list of the various plan
provisions referred to in the course of his evidence as an
appendix. We have had regard to all that material along
with those provisions set out in the body of his brief.
Policy 8.1.2:
To have regard to the Regional Ambient Air
Quality Guidelines in Schedule 1.1 in managing
the regions air resource.
Policy 8.1.3:
When considering the effects of any discharge of
contaminants into air when preparing an application
or making a decision on an application, particular
regard will be had to the following effects:
It will be convenient to mention Mr Averys identified

objectives and policies before proceeding further. In the
PRPS, Objective 7.4.1 reads:
To maintain and enhance Otagos existing air
quality, including visual appearance and odour.
(a) Any actual or potential effects of the discharge

on values of significance to Kai Tahu;
(b) Any cumulative effects;
(c) Any adverse effects from hazardous
contaminants identified in Schedule 1.3; and
(d) The sensitivity of the local environment,
including any actual or potential effects on
the health and functioning of ecosystems,
plants and animals, cultural and amenity
values, and on human health.
Policies 7.5.2 and 7.5.3, in turn, state:

To avoid, remedy or mitigate any discharges
which have adverse effects on the air resource
including effects on human health, the
environment, visual impacts and odour.
And secondly
Another policy mentioned was policy 11.1.1 reading:
To promote and encourage improvements to

existing discharges in order to reduce the amount
and toxicity of contaminants released.
To avoid or mitigate any adverse effects on human

health or amenity values resulting from the
discharge of offensive or objectionable odour
through employing:
(a) Good management practices (including the
use of Codes of Practice) and process
technology that has an inherently low odour
potential to ensure that the amount of odorous
contaminants generated by a process or
activity is minimised;
(b) Appropriate control technologies to reduce
the emission of odorous contaminants;
(c) Buffer zones, site planning mechanisms and
other land use management techniques to
reduce the potential for adverse off-site
effects; and
Under the TRP, objective 3.3.1 requires the Council

To maintain and enhance Otagos existing air
quality.
And under policies 3.4.1 and 3.4.2 the following appears:

To maintain Clean Air Act requirements while
alternatives are fully investigated.
And
To control the effects of discharges to air through
154
(d) Tools and techniques that provide an objective

assessment of odour, such as olfactometry,
odour dose response assessments and
community surveys.
framework of consent conditions proposed by ORC and

Ravensdown would be satisfactory.
We do not overlook that the regional levels are expressed
as goals, in the sense of being desirable levels to aim at
achieving. Counsel for the Company and ORC both urged
us not to adopt the regional levels as a fixed benchmark
whereby occasional exceedances would place Ravensdown
in a position of breach, despite such exceedances being
within the AAQG limits. We accept that the regional
guideline levels ought not to be resorted to on an inflexible
basis as though they were absolute limits requiring
continuous compliance. Rather, it is their spirit and intent
that is important. On that footing, we conclude that a very
respectable level of compliance ought reasonably to be
expected in the context of any consent. More specifically,
while 100% compliance with the regional levels is
unrealistic, we are tentatively of the view that achievement
ought reasonably to be expected at a 97% or 98% minimum
level of compliance for 24-hour mean results for SO2, and
for 7-day fluoride averages, with the AAQG levels being
complied with constantly. It is noted that such a general
standard of performance for SO2 is consistent with the
predictions of Dr Brady proffered on behalf of the
Company. We invite submissions on the basis stipulated
in the final evaluation head below as to whether compliance
percentages should be specified for other time period
averages, and if so, at what figures; also as to the percentage
level to apply in the circumstances above.
We have earlier referred to the PRPA ambient air quality

guideline or goal levels contained in Schedule 1.1 of the
Plan. Those levels equate to 66% of the AAQG levels,
except in relation to particulates (PM 10) where an even
lower guideline level has been adopted in order to reflect
increased international concern over the health effects of
PM10. The 66% level has been adopted to reflect alert
levels advocated by the MfE under a publication
Environmental Performance Indicators: Proposals for Air,
Fresh Water and Land, 1997.
When one has regard to the various objective and policy
provisions above-cited, a clear intent emerges that the good
air quality of the region is to be protected and maintained;
and in areas where the quality is less satisfactory than the
norm, the aim is to seek that that deteriorated quality be
improved. In the present instance, there exists a substantial
and long-standing industrial operation alongside the
Harbour, and a local residential community on the
hinterland slopes nearby, also of long-standing. The
manufacturing operation cannot function without consent
under the Act to discharge contaminants to air, with
dispersion occurring over a wide area that inevitably
includes the airspace above the residential area concerned.
That being so, having regard to the size and nature of that
operation, its location in relation to the residential area of
Ravensbourne, and relevant considerations under the RMA
as later discussed, the Company must accept responsibility
for achieving a high standard of mitigation of off-site
effects - and the conditions of any consent must, in turn,
reflect that.
The time averages and compliance percentage levels that

should apply for fluoride monitoring are matters upon
which we do not have a firm view. Whatever the basis
adopted, we anticipate that fugitive fluoride discharges
from the storage areas (whatever their total volume) will
be reliably captured by the monitoring off-site aimed at
identifying total levels of fluoride in the ambient air. We
again invite submissions on the basis indicated in our
concluding evaluation; also as to the practicalities and
implications of the instrumental monitoring for SO 2
concentrations at the additional site to be selected
embracing the recording of ambient temperatures, wind
speeds and direction.
It is, we think, significant that the PRPA contains goal levels

in the form of guidelines that are more stringent than the
AAQG, and which are designed to encourage good
environmental outcomes appropriate to the Otago region.
In coming to assess discharge to air applications such as
those now in issue, the various planning provisions, looked
at in combination, envisage (where avoidance is not
possible) a level of mitigation based on quality
performance, both in terms of technology employed and
management systems.
No condition is included in the suggested conditions of

ORC and the Company directed to ambient air
measurement of PM10 levels. It will be recalled that Dr
Brady predicted maximum 24-hour downwind
concentrations of PM10 material at between 1 and 10mg/
m3 within 100 metres of the works. That represented a
minimal range of predicted effect, bearing in mind the
PRPAs 24-hour goal level of 50 mg/m 3. We observe that
consent is sought in relation to particulate discharges from
the vents associated with the Bradley Mills as well as
fugitive dust from product storage and dispatch facilities.
On the basis of the maximum hourly discharge limit
proposed from the Bradley Mills (2.5kg/hr), ORC is
satisfied that there will be no off-site effect of significance.
For present purposes, we consider that the regional goal

levels should be looked to for guidance in reference to
SO2 and fluoride levels in the grant of any consent, rather
than the AAQG where cited levels are more in the nature
of trigger points. (By that we mean that beyond those
points, effects upon ambient air quality are likely to be
viewed as unsatisfactory from a general public health
standpoint.) For the Otago region the PRPA envisages a
higher standard than simple compliance with the AAQG.
And, in the circumstances of this case, it is the PRPA
standard which warrants attention in deciding whether the
155

(c) Avoiding, remedying or mitigating any
environment.
No compelling evidence was adduced, in our view, to show

that adequate measures had not been introduced to guard
against any significant off-site effect from the relevant
vents.
According to Dr Brady, the only source of fine solid
particulate material, (excluding fugitive and wind-blown
material which, in Dr Bradys opinion, is mostly of coarse
nature), that has a potential to produce excessive rates of
deposition or cause health effects, relates to the Bradley
Mills. But that proposition is reliant on the premise that
on-site activities are consistently managed on a basis that
avoids off-site generation of fine particulates irrespective
of the Bradley Mills. All in all, on the issue of dust
generation, we are not wholly convinced, despite the
Companys assurances of careful management, that fugitive
dust emissions incidental to general on-site activities have
not caused, or at least contributed to causing, an off-site
effect at Mr Smiths property. In the circumstances, we
are of the tentative view that monitoring at Mr Smiths
property over the next 12 months should include a regime
for the monitoring of particulates. Submissions are invited
on that possibility and the suggested form of an appropriate
condition.
The wide meaning of environment as defined in s.2 bears

remembrance as well:
Environment includes
(a) Ecosystems and their constituent parts,
including people and communities; and
(b) All natural and physical resources; and
(c) Amenity values; and
(d) The social, economic, aesthetic, and cultural
conditions which affect the matters stated in
paragraphs (a) to (c) of this definition or which
are affected by those matters.
The section also defines the term amenity values used

in the meaning given to environment, and in s.7(c) of
the Act, as follows:
As previously noted, the area of operational activity

involving mass handling of raw or manufactured materials
relates basically to responsible land use. If the monitoring
results should give rise for any concern, then ORC, possibly
in conjunction with Dunedin City Council, would need to
consider what steps should be taken by reference to the
various planning instruments, and to s.128 and perhaps
s.17 of the Act. An obvious difficulty would, of course, be
to identify the level of particulates originating from the
works themselves and to assess their cumulative effect in
relation to other ambient sources.
Amenity values means those natural or physical

qualities and characteristics of an area that
contribute to peoples appreciation of its
pleasantness, aesthetic coherence, and cultural and
recreational attributes.
The wide definition of effect under s.3 is also pertinent:

In this Act, unless the context otherwise requires,
the term effect includes
(a)
(b)
(c)
(d)
Legal Considerations and Relevant Cases

Various background matters warrant recall before turning to
discuss relevant legal aspects. They include the environmental
interests and concerns of the Ravensbourne residential community,
the dual long-standing nature of the residential area and the
industrial activity comprising the works, the significant financial
investment in the works and their contribution to the community
and wider region. Uses within Ravensbourne include small-scale
horticultural and agricultural ventures, residential activities
(including home-gardening), and the fertiliser plant. We have also
referred earlier to areas of bush reserve and to Moller Park.
Any positive or adverse effect; and

Any temporary or permanent effect; and
Any past, present, or future effect; and
Any cumulative effect which arises over time
or in combination with other effects
regardless of the scale, intensity, duration,
or frequency of the effect, and also includes
(e) Any potential effect of high probability; and

(f) Any potential effect of low probability which
has a high potential impact.
Not surprisingly, various shades of viewpoint or emphasis

have emerged over time in reference to relevant aspects of
section 5 - all in pursuit of the common aim of conforming
to the Acts purpose in a vast range of fact situations. In
some instances it has been thought that the section
essentially demands a balancing exercise, with socioeconomic aspirations being considered in conjunction with
environmental outcomes, nevertheless giving appropriate
recognition to paras (a) to (c) of subs.(2). Again, the Acts
single purpose has been pointed to, the fulfilment of which
requires a broad judgment to be made involving assessment
Though familiar, it will be as well to record the Acts

purpose under s.5(1) of promoting the sustainable
management of natural and physical resources; also s.5(2)
which explains that sustainable management means
managing the use, development, and protection of natural
and physical resources in a way, or at a rate, which enables
economic, and cultural wellbeing and for their health and
safety while
156
natural and physical resources as defined, it is our

understanding that the duty entrusted to those
making decisions under the Act cannot be
performed by simply deciding that on a single issue
one or more of the goals in paras (a), (b) and (c)
is not attained.
of conflicting considerations, the scale or degree of them,

and their relative significance or proportion in the final
outcome. In other cases, it is has been stressed that integral
to the Acts purpose is the securing of environmental
outcomes meeting the bottom line dictates of the three
paragraphs mentioned.
Furthermore, as Williamson J pointed out in Elderslie Park

Ltd v Timaru District Council [1995] NZRMA 433, 444:
The first part of s.5(2) is commonly referred to as

enabling in terms of the provision intended to be made
for the social, economic, and cultural wellbeing of people
and communities. Even so, the wording incorporates
directional factors bearing on management and protection
of resources and provision for health and safety. Those
factors are clothed with openness (to use the expression of
Greig J in New Zealand Rail v Marlborough District
Council [1994] NZRMA 70, 86), in that the connecting
words in a way, or at a rate afford wide scope for
individual judgment. Nevertheless, that scope is channelled
by the subsections succeeding paras (a) to (c) in that
considerations relevant under those paragraphs must be
duly weighed and heeded. Whatever might be the result
from balancing different aspects under the first part of the
subsection, the end result must be one that reflects due
application of the qualifying paragraphs - even to the point
of refusal of an otherwise promising proposal. As was
stated by the Planning Tribunal (as this Court was formerly
named) in Campbell v Southland District Council
(Decision W114/94), s.5 does not seek that a balance be
achieved between benefits occurring from an activity and
the activitys adverse effects upon the environment. The
definition in subs.(2) specifically requires adverse effects
to be avoided, remedied or mitigated irrespective of the
benefits that may accrue.
To ignore real benefits that an activity for which

consent is sought would bring necessarily an
artificial and unbalanced picture of the real effect
of the activity. In determining whether an effect
is minor it is appropriate to evaluate all matters
which relate to the effect. These matters would
include counterbalancing benefits and possible
conditions.
In summary, the Acts purpose is not about exploring the

limits of the environment in the interests of development
and growth, but is concerned with seeing the environment
maintained and protected, both now and in the future, by
appropriate management. The Act supplies its own formula
as to what is appropriate in this context by stipulating that
physical resources is required to be managed in accordance
with the concept of sustainability predicated in s.5(2). That,
indeed, is the Acts cornerstone. And so the question that
falls to be asked is not so much What are the levels of
impact that the environment can withstand in
accommodating todays growth and development
demand?; but rather, How can the sustainable
management of natural and physical resources be promoted
for the benefit of present and future generations as change
occurs?.
Inevitably, in a case such as the present, many factors fall

to be weighed in the overall mix of relevant considerations.
In that process, as was observed in Mangakahia Maori
Komiti v Northland Regional Council [1996] NZRMA 193,
each of the lettered paragraphs of s.5(2) must be afforded
full significance and applied according to the circumstances
of the particular case, so that promotion of the Acts purpose
is effectively achieved (p.215). But as Grieg J made plain
in New Zealand Rail (supra), in determining how and on
what basis the Acts purpose may be suitably promoted in
the individual case, a broadly-based informed judgment is
necessary, commensurate with the openness of the
language used to express the purpose and principles. As
was stated by this Court (differently constituted) in North
Shore City Council v Auckland Regional Council [1997]
NZRMA 59, 93:
Economic effects have a bearing on sustainability,

inasmuch as economic considerations constitute part of
the wider meaning of environment. Section 5(2) also
refers to economic wellbeing of people and communities.
As will be seen, it has been held that all aspects of efficiency
in terms of s.7(b) contain an economic element. Probably
the most far-reaching analyses essayed by this Court to
date in reference to this area have been in Marlborough
Ridge Limited v Marlborough District Council [1998]
NZRMA 73; 3 ELRNZ 483 (involving consideration of a
proposed plan change to permit development of an
integrated tourist resort), Boon v Marlborough District
Council [1998] NZRMA 305 (another plan change case
where an altered zoning was proposed from rural to
industrial activity (forestry processing)), and Baker Boys
Limited v Christchurch City Council [1998] NZRMA 433;
4 ELRNZ 297 (a supermarket case).
A way of managing of natural and physical

resources which fails to sustain, to safeguard, and
to avoid, mitigate, or remedy the matters stated
in paras (a), (b) and (c) thereby also restricts the
extent to which that way of managing the resources
enables a community to provide for its wellbeing.
Where (as in this case) there are a number of issues
to be considered in deciding whether a proposal
would promote the sustainable management of
In the context of the efficient use and development of

natural and physical resources under s.7(b), it was indicated
in Baker Boys that a possible mode of interpretation of the
efficiency element is one bearing on utility rather than
wealth or value (p.464). Nevertheless, difficulties in such
a perspective were noted on account of the absence of
157
means of measuring utility beyond the criteria set out in

ss.5-8 and/or market value. Further, it was noted that
there is nothing in the Act which suggests that should be
the criterion of efficiency whereas there are the provisions
that suggest economic efficiency (defined shortly as
maximising value) is to be had regard to. (ibid)
for the purpose of importing raw materials. Nevertheless,

those factors relating to economic efficiency of land use
and economic wellbeing are assessable in the light of the
qualifying dictate of observing and applying those
considerations that are relevant under s.5(2)(a) to (c).
Paragraph (c) speaks of avoiding, remedying or mitigating
adverse effects, thus giving rise to the need for a value
judgment on how the Acts purpose ought to be fulfilled
by invoking one or more of those stated means for dealing
with adverse effects in the particular case. Here, as in the
Eden Park Trust Board case (Decision A 130/97), (which
concerned lighting for the well known and long-standing
rugby/cricket facility in Auckland), and in the Hornby case
referred to below, it is plain that mitigation must practicably
be applied if consent is to be granted. In such event,
however, the degree or level of mitigation must equally
plainly be significant, given the total circumstances and
background of the works, including their nature and
location. In this connection, we bear in mind all aspects of
s.5(2)(a) to (c), including the importance of safeguarding
the life-supporting capacity of air soil and water. We also
take cognizance of and apply relevant provisions within
sections 6 and 7 on the basis required under each section,
including aspects bearing on the coastal environment,
amenity values and the quality of the environment. Against
the background of those considerations, the various plan
provisions drawn to our attention in evidence earlier
discussed, and our evaluation of effects both actual and
potential, (including within the context of an effect, as
defined, past effects upon the residential area in earlier
decades when more recent environmental improvements
were not available), the mitigatory requirements
incorporated in any consent must be designed confidently
to produce a sustainedly good environmental outcome for
the residential area of Ravensbourne, and to avoid any
significant actual or potential adverse effects upon the area.
In Carter Holt Harvey Forests Limited and Another v

Tasman District Council 4 ELRNZ 93, another panel of
this Court explicitly declared that: We do not accept that
economic efficiency is not part of sustainable
management. Marlborough Ridge was referred to as
supporting the view that all aspects of efficiency are
economic by definition. Hence, it was suggested that the
role of s.7(b) in assessing the efficiency of methods leading
to efficient use of a resource (in that case water) might
make it a particularly powerful tool. And further: The
provision qualifies the more general direction in s.5(2) of
the Act which requires managing the use, development and
protection of the water resource to achieve among other
matters economic wellbeing. (p.141)
In Boon it was held that the proposed zone should not be
upheld for a variety of reasons stemming (inter alia) from
perceived cost-related inefficiencies, including allocative
inefficiency by preventing markets reflecting the true
social opportunity cost of the Kaituna land, and increased
transaction costs by increasing costs of complying
activities who chose to locate elsewhere and increasing
costs of non-complying activities which would otherwise
use the Kaituna land more efficiently than a wood
processor. (supra, 334)
For present purposes, one cannot ignore the fact that the
activity is in being and that the works represent a substantial
and long-standing physical resource. So it is not a matter
of choice of land use and provision of establishment
opportunity as was the case in the plan change cases of
Boon and Marlborough Ridge. Again, it is not a case with
a background obviously similar to the well known Te Aroha
Air Quality Protection Appeal Group (No.2) case where
the applicants sought to establish a new beef by-products
rendering plant near an existing export beef plant at Te
Aroha. In that case it was found on the merits that odour
from the proposed rendering plant was potentially offensive
and that occupiers of nearby properties and other people
having business in the Rural zones neighbouring the site
should not have to experience an introduced effect of that
kind. In the present case the works are well established
and fully operative. Whether they are less efficient on
account of their age and upgrading modifications over the
years than would be the case were the same capital invested
in the development of a new complex elsewhere is a matter
of debate. Be that as it may, the works certainly represent
a substantial and continuing operation in the face of other
competition in the region and elsewhere. They play a
notable role in the manufacture and supply of fertilizer to
the farming community of the region and to a degree
beyond. They also enjoy the advantage of the wharf facility
In determining suitable conditions in the event of consent,

s.108(8) is important. That provision states:
Before deciding to grant a discharge permit or a
coastal permit to do something that would
otherwise contravene section 15 (relating to the
discharge of contaminants) [or 15B] subject to a
condition described in subsection [(2)(e)], the
consent authority shall be satisfied that, in the
particular circumstances and having regard to (a) The nature of the discharge and the receiving
environment; and
(b) Other alternatives, including any condition
requiring the observance of minimum
standards of quality of the receiving
environment -the inclusion of that condition
is the most efficient and effective means of
preventing or minimising any actual or likely
adverse effect on the environment.
Section 108(2)(e), in turn, provides:
158
A resource consent may include any one or more

of the following conditions:
(e) Subject to subsection (8), in respect of a

discharge permit or a coastal permit to do
something that would otherwise contravene
section 15 (relating to the discharge of
contaminants) or section 15B, a condition
requiring the holder to adopt the best
practicable option to prevent or minimise any
actual or likely adverse effect on the
environment of the discharge and other
discharges (if any) made by the person from
the same site or source.
In our view the proper approach is for the consent

authority to consider all of the relevant evidence
and relevant statutory criteria and to decide
whether or not to grant the application. (p.28)
In our view, these passages are helpful and relevant for

present purposes, and we adopt them accordingly.
Final Evaluation and Determination
At a relatively late stage of the hearing, shortly before
conclusion of the hearing phase in the second week of
February this year, Mr Williams presented a submission
that ORC had acted unlawfully by purporting to grant
Ravensdown a discharge to air permit in respect to the den
stack. It was submitted that the Companys application was
based on the den stack being at a height of 15 metres and
that jurisdiction was lacking for ORC, and in turn this
Court, to grant a consent based on a higher stack.
Best practicable option is defined in s.2(1) in relation to

a discharge of a contaminant as
the best method for preventing or
minimising the adverse effects on the environment
having regard, among other things, to
(a) The nature of the discharge or emission and
the sensitivity of the receiving environment
to adverse effects; and
(b) The financial implications, and the effects on
the environment, of that option when
compared with other options; and
(c) The current state of technical knowledge and
the likelihood that the option can be
successfully applied:
The following statement in the Assessment of Effects

submitted with the application in 1994, (having been compiled
by the Companys consultants, Woodward-Clyde in 1992),
was pointed to under the heading Increase Stack Heights:
The Ravensbourne Works is located in complex
terrain (not flat) and the maximum levels
experienced at ground level are often high because
of the effect of the plume impinging on the side
of a hill. Raising the acid plant stack height
would merely shift the spatial distribution by only
a small amount. It would have little effect in
Ravensbourne unless it were raised to a height of
some 200 metres. This is clearly not practical. For
the manufacture (den) stack, the low height of
the stack actually causes maximum concentrations
to occur close to the works. If raised, it is likely
that ground level concentrations further away from
the plant would increase.
By decision delivered on 15 November 1994 regarding

Ravensdowns fertiliser works at Hornby near Christchurch
(The Medical Officer of Health v Canterbury Regional
Council (Decision W109/94)), it was pointed out that in
view of the Acts extended definition of environment
it is clearly more than just the receiving air
which must be considered in the context of s.108.
It is also relevant to the facts of this case that it is
amenity values and the social, economic aesthetic
and cultural conditions of the people of the
surrounding area which must be borne in mind.
That is particularly relevant in the case of odour
from the factory although it is not a danger to
health in any way. Clearly it is capable of adversely
affecting the amenity values of the district and
the social, economic, aesthetic and cultural
activities which take place there. Our duty is to
ensure that suitable conditions are imposed which
require the applicant to adopt the best practicable
option for preventing or minimising the
dissemination of that odour into the surrounding
community. (p.26)
The last sentence of this passage was said to conflict with

Ravensdowns case presented to us based on a 40-metre
high stack that being the height pertaining for most of
the time between the first instance and appeal hearings.
Evidence for the Company indicated that in the latter part
of 1994 and in early 1995 the den stack height was
increased to 30 metres and then to 40 metres. That was
done because those increases were believed appropriate
to enhance the degree of mitigation of off-site effects. ORC
was informed of the situation on each occasion and raised
no opposition. As Mr Clark stated -
And later:
the height of the den scrubber stack was

increased from 15 to 40 metres, to improve the
dispersion of the odours sulphur compounds.
Modelling of the effect of increasing the stack
height demonstrated a reduction in the maximum
predicted ground level concentration from 110 to
15.7mg/m3.
s.108expressly enjoins the consent authority

to consider conditions which require a consent
holder to adopt the best practicable option to
prevent or minimise any actual or likely adverse
effects on the environment of the discharge The
legislature clearly contemplates that there must
be circumstances where the best practicable option
will only be to minimise the adverse effects on
the environment. It will not obviate them entirely.
Because the companys case on appeal was based on the

den stack being 40 metres in height when the height at the
159
time the consent application was lodged was 15 metres,

Mr Williams suggested that the proceedings should be
adjourned for 6 or 12 months, on the basis of the Court
ordering Ravensdown to fund an updated environmental
impact report from an independent firm of consultants not
previously engaged. It was claimed by Mr Williams (and
indeed by others appearing) that previous consultants work
and impartiality could not be relied on; further, that the
Company could not be trusted to provide accurate
information and data. ORC was also subjected to criticism
for its performance at different times to the point that it
was contended that the Council had a mind-set favourable
to the Company and biased against residents complaints
and interests. Having listened carefully to all that was said
on all sides over many sitting days, we consider these
various criticisms to be excessive. We were not left with
an impression that Dr Brady, or his firm (until recently)
Woodward-Clyde, had acted unprofessionally at any stage.
Rather, as regards the stack height aspect, we accept that
in the early 1990s it was genuinely thought that a 15-metre
high stack was the best option, but that experience and
understanding of effects gained since has revealed
otherwise. As to the Companys trust-worthiness, we
consider that the view of Mr Williams and others of like
mind is reflective of personal attitudes stemming from
dealings with the Company or its staff over past years in
differing circumstances. We recognize that some people
within Ravensbourne resent Ravensdowns operational
discharges, but we do not find that the Company has
intended to create ill-will in the past, let alone provide
wrong information. There was a particular incident drawn
to our attention where incorrect monitoring data was
supplied to ORC, but we were satisfied after hearing from
the Companys relevant employee that she was a capable
and dedicated person who had made a genuine error and
was remorseful in consequence.
We have earlier noted that, pending resolution of the appeal

proceedings, Ravensdown is continuing to operate in
reliance upon its licence granted under the former Clean
Air legislation pursuant to s.124(1) of the RMA. No
restriction as to the stack height is contained in that licence.
Counsel for ORC submitted that this Court does not have
the power to order a further assessment of effects as such.
Rather, so it was contended, our function is to determine
whether there is sufficient evidence before the Court to
determine the appeals. If the answer to that question is
yes, then that is the end of the matter. On the other hand, if
we should consider that assistance would be gained by
receiving further information, then the proceedings may
be adjourned for that purpose. We accept Mr Pages
summation. Nevertheless, the question of jurisdiction,
(against the background of the original 15-metre stack
height which gave rise to the statement quoted above in
Woodward-Clydes assessment of effects), requires further
consideration.
On observing to counsel for Ravensdown and ORC that
the case presented on appeal (based on a 40-metre high
stack) appeared at least to raise an issue of conflict and
concern, given the way the den stack height issue was
viewed when the application was originally lodged, leave
was sought to call further evidence to demonstrate that the
off-site dispersal effects would not expose additional
residents of Ravensdown to effects that those residents
would not have experienced via the lower stack height. It
was claimed that the evidence would show that the raising
of the height to 40 metres was essentially a mitigatory
measure whereby any off-site effects would be reduced
for the benefit of residents within Ravensbourne, without
placing anyone in the position of receiving new or
increased effects. Leave was granted in the circumstances,
bearing in mind the late point in the hearing that Mr
Williams raised the whole issue. Mr Millichamp
consequently gave evidence confirming that, in his view,
the increased stack height was a beneficial option, resulting
in a decrease in ambient concentrations at any given point
down-wind of the stack. We accept his evidence and note
the absence of any convincing expert evidence to the
contrary that is, to the effect that raising the stack was
other than mitigatory and that adverse effects were created
that might have led other people within Ravensbourne to
lodge a submission originally.
While we acquit the Company of having in the past set out

to instigate dissension or complaints, we underline the need
to foster and maintain a good community liaison. If any
causes for community concern should arise in future, it
will be important to see that they are responded to
expeditiously, effectively, and on a user-friendly footing,
so that the polarisation that has apparently occurred in some
quarters hitherto can be avoided. We do not insist upon
constitution of a set group of representatives to act as a
liaison body as a resource consent condition in the absence
of prior agreement to that end, but invite the Company
and ORC to consider whether an informal group
incorporating local resident, Company, ORC and perhaps
Dunedin City Council representation might usefully be
established to assist better community relations.
In the light of Mr Millichamps assessment, we agree with

counsel for ORC that the matter of the stack height
effectively becomes a land use and building consent issue.
Nothing was drawn to our attention indicating that the den
stack was in breach of any planning or regulatory
requirements of the Dunedin City Council. We apprehend
that, in the event of our upholding consent, conditions
might be imposed restricting any further alteration of the
den stack (or the acid plant stack for that matter). The case
presented for Ravensdown and supported by ORC was
based on the heights of both stacks (40m and 55m
respectively) being well chosen for their respective
As regards ORC, we do not find that there has been an

intention to take sides without reasonably considering
and inquiring into concerns raised by residents. In fact it
is advantageous that an officer of Mr Millichamps
qualification, skill and practical background has been and
is available to assist as need be.
160
Regional Council are therefore not affected

by not taking into account this discharge.
(h) There is no need for urgent action to mitigate
any potential effect from the ponds and no
party would be prejudiced by waiting for the
company to apply for consent as soon as a
full assessment of effects is complete.
purposes. We accept that the respective heights are optimal

on weighing the expert evidence. Hence, if a variation in
height should later be sought, Ravensdown would be
expected to show how and why the need for that has arisen
having regard to our present findings.
Another issue pointed to by Mr Williams and various others
related to the scrubber effluent cooling ponds adjacent to
the premises of Ravensbourne Rugby Club on Moller Park.
The ponds were installed by the company as part of the
scrubber plant upgrade, the main purpose being to enable
the scrubber liquor to be recycled, with fluoride being
returned to the manufactured product.
The memorandum went on to state that a consent

application with an appropriate assessment of effects is to
be lodged on behalf of Ravensdown by the end of August
1999. While ORC would have preferred an earlier filing
of the application, in view of Mr Millichamps conclusions
from his preliminary assessment, insufficient cause was
believed to exist for taking enforcement action in the
meantime.
In delivering his final submissions for ORC, Mr Page stated

that
After careful reflection, we consider that there is enough

evidence before us to determine the present appeals,
notwithstanding that the discharge from the ponds is yet
to be considered by ORC. From our own inspection of the
rugby clubroom windows, the preliminary conclusion
drawn by Mr Millichamp under (f) above does not surprise
us. Whether on fuller inquiry a nexus is found to exist
between apparent etching of the windows and the nearby
cooling ponds will be a matter for ORC on hearing and
determining Ravensdowns further application. We
perceive no need to say more about the cooling ponds for
present purposes, seeing that the company has agreed to
seek consent for the relevant discharge.
On becoming aware of the existence of the ponds

the Councils officers formed the view that
discharges to the atmosphere from those ponds
were likely to be de minimus. The ponds have
not been an issue until recently, when two
complaints have been received, one by Mr
Williams and one by an associate of his. In
response to those complaints the Regional Council
has required the company to determine the nature
and extent of contaminants evolved to the
atmosphere from those ponds. If the Councils
assessment that discharges are likely to be de
minimus turn out to be mistaken then appropriate
action will be taken.
Turning once again to the coastal permit applications, it

will be recalled that evidence was received from two ORC
officers, Mr Milburn and Mr Avery. We have had regard
to the nature of the relevant discharges and the receiving
environment in the light of their evidence and to possible
alternatives. On the latter aspect, Mr Avery noted:
In view of the above, Mr Page was requested to file and

serve a memorandum setting out ORCs position in relation
to discharges to air from the cooling ponds following
further investigation. By memorandum dated 10 June 1999,
it was indicated that a preliminary assessment of the
fluoride discharges from the cooling ponds by
Mr Millichamp had led to the following conclusions:
The most obvious alternative method of

discharging is to use the reticulated sewerage
system, which I understand is unable to take the
discharges. Consideration was also given to
discharging to land but was not considered a viable
alternative. It is therefore considered appropriate
to use the coastal marine area provided the
discharges are consistent with the policy
framework for coastal management and there are
appropriate mechanisms to control and monitor
the effects of the discharges.
(a) That the principal contaminants evolved from

the surface of the cooling ponds are silicon
tetrafluoride (SiF 4) and hydrofluoric acid.
These contaminants are also found in the
discharges from the den stack and the hygiene
vents.
(b) Human health effects as a consequence of the
discharge are very unlikely.
(c) Council staff have been unable to detect odour
from the discharge at a distance greater than
25 metres from the ponds.
(d) Vegetation damage as a consequence of the
discharge is unlikely beyond 60 metres from
the ponds.
(e) There appears to be little sensitive vegetation
in the area.
(f) Glass windows in the adjacent rugby club
building may have suffered from etching
caused by the discharge from the ponds.
(g) Fluoride discharged from the ponds will not
add to the downwind impact of fluoride from
other sources from the applicants activity.
The original assessments undertaken by both
the company (Woodward-Clyde) and the
Taking the evidence of both witnesses in conjunction, we

confirm the view earlier expressed that that evidence was
appropriate to warrant our upholding the coastal permits
as sought on the basis of the conditions agreed between
Ravensdown and ORC. We are satisfied that the
requirements of s.107 of the Act are met, and having
applied other relevant provisions and given Part II of the
Act due primacy, we find that the relevant consents, on
the conditions proposed, will accord with the Acts purpose
and maintain the water quality of the Harbour. Those
consents are upheld on the terms proposed accordingly.
161
Returning to the discharge to air applications, we are

likewise of the view, on weighing all the evidence, that
consent should be upheld on ORCs and the companys
agreed terms, but with modifications indicated in the course
of this decision bearing on (1) a second instrumental monitor
for SO 2 concentrations (p.41); (2) further monitoring for
fluoride (pp.44-45); (3) significant compliance with regional
goal levels in reference to SO2 and fluoride (pp.63-64); (4)
suggested monitoring for particulates (p.64); and (5)
limitation on acid plant and den stack heights (p.76).
Counsel for ORC and the Company are to file and serve
memoranda within 14 days, dealing with matters on which
submissions are invited and setting forth proposed modified
conditions of consent. The other parties may file and serve
any comments in response within a further 14 days, with
ORC and the Company having a similar period beyond that
in which to lodge submissions in final reply. Following
consideration of the various memoranda, the proceedings
will be finally determined.
the intended consent conditions, given the limiting and

controlling nature of the conditions. In short, the visual
effect aspect will not reflect an inappropriate use in the
circumstances, bearing in mind the works long history at
their location.
Another matter on which our attention has focused is the
potential for gas leaks or other unforeseen difficulties with
the plant, given its longstanding nature and its continual
pattern of modification and adaption to modern needs and
demands. The evidence of Mr Clark satisfied us that the
company has in place a well-organised system for detecting
leaks or other deficiencies, and for acting properly in
response including advising ORC. An important aid in the
process has been the installation of a computerised system
designed to identify untoward signs or variations within
critical areas of the plant. Obviously, it is essential that the
high standards on which the companys case was based
are maintained, including a thorough on-going procedure
of plant inspection, maintenance and replacement.
As with the coastal permits, we have accorded Part II of

the Act due primacy in our overall assessment, and satisfied
ourselves that the framework of conditions will be
appropriate in controlling the discharges to air for which
consent was sought as to conform with the Acts purpose.
We consider that the conditions as formulated (with some
changes as indicated) will represent a combination of the
best practicable options for mitigating the various actual
and potential effects that have earlier been discussed and
evaluated in detail. In particular, the actual and potential
effects upon amenity values of the surrounding area and
the quality of the environment will be suitably heeded. At
the same time the substantial plant and resource represented
by the works will be able to be efficiently utilised.
As a final comment, if the results of impending monitoring,

instrumental and otherwise, should point to a need for
further plant modifications and upgrading, despite our
present judgment on the evidence before us, then the
company will have to make its own commercial judgment
on whether to outlay the additional capital required to
maintain full production levels while meeting required
environmental standards, or whether to reduce production
in order to achieve those standards. ORC, for its part, may
be expected to devote careful consideration in such
circumstances to what review of the consent conditions
should be introduced in the light of the instrumental
monitoring data.
In the course of our deliberations, we have directed our

attention to and applied relevant matters under the Act as
alluded to in the evidence of ORCs Resource Management
Director, Mr Avery, and are satisfied that, as in the Hornby
case, there will not be a danger to health via the discharges
from the works given the raft of applicable conditions;
further, that by reference to those conditions, due regard
has been paid to the nature and character of the surrounding
environment. In so concluding, we have accepted, by and
large, the views of the companys and ORCs expert
witnesses, but imported, nevertheless, various revised or
extra aspects in the course of our overall appraisal, against
the background of evidence and submissions of others, and
assisted by the two on-site and neighbouring area visits
that were undertaken. Both the discharge to air and water
consents have been considered individually and
collectively, and we are satisfied on the evidence that they
represent a realistic and satisfactory basis of approach to
sustainable management.
In case any aspect stemming from this interim decision

requires further explanation or elaboration in the interests
of clarity or practical effect, leave is reserved to apply.
Costs
At the request of counsel for Ravensdown and ORC, costs
are reserved. Our tentative view is that costs should lie
where they fall, particularly in view of the long period
between ORCs original decision and the hearing on appeal,
coupled with the additional background and altered
circumstances occurring over the interim period, including
alteration of the approach to the den stack height. If
notwithstanding, costs should be sought either by the
company or ORC, memoranda may be filed and served
within 28 days of issue of the final decision, the party or
parties from whom costs are sought having a similar period
in which to reply.
We have not overlooked that, apart from the air quality

effect aspect, the discharges will involve visual effects
within the coastal environment. We consider, however, that
those effects have been recognised and provided for by
R J Bollard
Environment Judge
162
2
Police Power and
Compulsory Acquisition
in Environmental
Management
163
56 WIS.2D 7
Ronald JUST and Kathryn L. Just,
His wife, Appellants,
v.
MARINETTE COUNTY, Respondent,
State of Wisconsin, Impleaded Respondent,
MARINETTE COUNTY, Respondent,
v.
Ronald JUST and Kathryn L. Just,
His wife, Appellants,
State of Wisconsin, Impleaded Respondent,
Nos. 106, 107.
Supreme Court of Wisconsin
Oct. 21, 1972
164
Consolidated actions wherein landowners sought a

declaratory judgement that shoreland zoning ordinance of
county was unconstitutional and county sought a
mandatory injunction to restrain landowners from placing
fill material on their property without first obtaining a
conditional use permit as required by ordinance. The
Circuit Court, Marinette County, James E. Martineau, J.,
entered judgements that were in favour of county, and
landowners appealed and state intervened on appeal as a
party respondent because of constitutional issue. The
Supreme Court, Hallows, C.J., held that shoreland zoning
ordinance of Marinette County which prevents with
exception of special permit situations changing of natural
character of land within 1,000 feet of a navigable lake and
300 feet of a navigable river because of lands interrelation
to contiguous water is not unconstitutional as being
confiscatory or unreasonable. It was further held that where
trial court dismissed action commenced by landowners,
though they sought a declaratory judgement and though
their rights were declared, dismissal was in conflict with
procedure which Supreme Court had made clear should
he followed, namely, that a complaint should not be
dismissed when contrary to plaintiffs contention, but rather
judgement should set forth declaratory adjudication.
4.
Securing or taking of a benefit not presently enjoyed by

public for its use is obtained by government through its
power of eminent domain.
5.
6.
7.
EMINENT DOMAIN / 2(1)
Whether a taking has occurred depends on whether

restriction practically or substantially renders land useless
for all reasonable purposes.
APPEAL AND ERROR / 326
8.
If damage is such as to be suffered by many similarly

situated and is in nature of a restriction on use to which
land may be put and ought to be borne by individual as a
member of society for good of public safety, health or
general welfare, it is a reasonable exercise of police power,
but if damage is so great to individual that he ought not to
bear it under contemporary standards, courts are inclined
to treat it as a taking of property or an unreasonable exercise
of police power.
9.
ZONING / 231
Necessity for monetary compensation for loss suffered to

an owner by a police power restriction arises when
restrictions are placed on property in order to create a public
benefit rather than to prevent a public harm.
Purpose of shoreland zoning ordinance of Marinette

County, which is designed to meet standards and criteria
for shoreland regulation which legislature required to be
promulgated by Department of Natural Resources, is to
protect navigable waters and public rights therein from
degradation and deterioration which results from
uncontrolled use and development of shorelands. W.S.A.
59.971, 144.26, 274.12(6).
3.
In the valid exercise of police power reasonably restricting

use of property, damage suffered by owner is incidental,
but where restriction is so great that landowner ought not
to bear such a burden for public good, restriction amounts
to constructive taking, even though actual use or forbidden
use has not been transferred to government so as to be a
taking in traditional sense.
On appeal from judgement entered on findings in

consolidated actions that shoreland zoning ordinance of
county was valid and that property owners had violated
ordinance by placing fill material on their property without
first obtaining a conditional use permit as required by
ordinance, state could properly intervene as a partyrespondent on issue of constitutionality, where state
considered appeal to be a challenge to underlying statutes
as well as its comprehensive program to protect navigable
waters through shoreland regulation. W.S.A. 59.971,
144.26, 274.12(6)
2.
Distinction between exercise of police power and

condemnation is the matter of degree of damage to property
owner.
Modified and,as modified, affirmed.
1.
EMINENT DOMAIN / 1
10. NAVIGABLE WATERS / 35

State of Wisconsin under trust doctrine has a duty to
eradicate present pollution and to prevent further pollution
in its navigable waters.
CONSTITUTIONAL LAW / 81
11. ZONING / 101
Protection of public rights may be accomplished by

exercise of police power unless damage to property owner
is too great and amounts to a confiscation.
Exercise of police power in zoning must be reasonable.
165
distinguished from old concept of provided for variances,

and is of some significance in considering whether a
particular zoning ordinance is reasonable.
12. ZONING / 110

It is not an unreasonable exercise of police power in zoning
to prevent harm to public rights by limiting use of private
property to its natural uses.
19. EMINENT DOMAIN / 2(1)

While loss of value is to be considered in determining
whether a restriction is a constructive taking, value based
on changing character of land at expense of harm to public
rights is not an essential factor or controlling.
13. HEALTH AND ENVIRONMENT / 25.5

Changing of wetlands and swamps to damage of general
public by upsetting natural environment and natural
relationship is not a reasonable use of that land which is
protected from police power regulation. W.S.A. 30.11,
30.12, 30.19, 30.195, 30.05, 59.971, 59.971(1, 6), 144.26.
20. DECLARATORY JUDGEMENT / 389

Where trial court dismissed action commenced b
landowners, though they sought a declaratory judgement
that shoreland zoning ordinance of county was
unconstitutional, and though rights of landowners were
declared in action, dismissal was in conflict with procedure
which Supreme Court has made clear should be followed,
namely, that a complaint should not be dismissed when
contrary to plaintiffs contention, but rather judgement
should set forth declaratory adjudication.

Laws and regulations to prevent pollution and to protect
waters of state from degradation are valid police-power
enactments, W.S.A. 30.11, 30.12, 30.19, 30.195, 30.05,
59.971, 59.971(1, 6), 144.26.
15. CONSTITUTIONAL LAW / 63(1)

NAVIGABLE WATERS / 29
21. CONSTITUTIONAL LAW / 45

Active public trust duty of state ion respect to navigable
waters requires state to promote navigation as well as to
protect and preserve those waters for fishing, recreation,
and scenic beauty; to further this duty, legislature may
delegate authority to local units of government. W.S.A.
30.11, 30.12, 30.19, 30.195, 30.05, 59.971, 59.971(1, 6),
144.26.
Practice of assuming constitutionally of an enactment, until

contrary is decided by an appellate court, is no longer
necessary or workable, and, when a constitutional issue is
presented to a trial court, it is better practice for that court
to recognize its importance, have issue thoroughly briefed
and fully presented, and to decide issue as any other
important issue with due consideration.

TAXATION / 24
ZONING / 11
22. CONSTITUTIONAL LAW / 48(1)

A regularly enacted statute is presumed to be constitutional
and party attacking statute must meet burden of proof of
showing unconstitutionally beyond a reasonable doubt.
Lands adjacent to or near navigable waters exist in a special

relationship to state, and are subject to special taxation,
public trust powers of state, and special zoning ordinances
for restrictive conservancy purposes. W.S.A. 30.11, 30.12,
30.19, 30.195, 30.05, 59.971, 59.971(1, 6), 144.26.
These two cases were consolidated for trial and argued

together on appeal. In case number 106, Ronald Just and
Kathryn L., Just, his wife (Justs), sought a declaratory
judgement staging: (1) The shoreland zoning ordinance of
the respondent Marienette County (Marinette) was
unconstitutional, (2) their property was not wetlands as
defined in the ordinance, and (3) the prohibition against
the filling of wetlands was unconstitutional. In case number
107, Marinette county sought a mandatory injunction to
restrain the Justs from placing fill material on their property
without first obtaining a conditional-use permit as required
by the ordinance and also a forfeiture for their violation of
the ordinance in having placed fill on their lands without a
permit. The trial court held the ordinance and valid, the
Justs property was wetlands, the Justs had violated the
ordinance and they were subject to a forfeiture of $100.
From the judgements, the Justs appeal.
17. ZONING / 110

Shoreland zoning ordinance of Marinette County which
prevents with exception of special permit situations
changing of natural character of land within 1,000 feet of
a navigable lake and 300 feet of a navigable river because
of lands interrelation to contiguous water is not
unconstitutional as being confiscatory or unreasonable.
W.S.A. 30.11, 30.12, 30.19, 30.195, 30.05, 59.971,
59.971(1, 6), 144.26.
18. ZONING / 101, 371

Use of special permits is a means of control in
accomplishing purpose of a zoning ordinance, as
166
1,000 feet of the normal high-water elevation of

navigable lakes, ponds, or flowages and 300 feet
from a navigable river or stream or to the landward
side of the flood plain, whichever distance is
greater. The state shoreland program is unique.
All county shoreland zoning ordinances must be
approved by the department of natural resources
prior to their becoming effective. 6 Wis.
Adm.Code, sec. NR 115.04, May, 1971, Register
No. 185. If a county does not enact a shoreland
ordinance which complies with the states
standards, the department of natural resources may
enact such an ordinance for the county, Sec. 59.971
(6), Stats.
[1] On this appeal the state of Wisconsin has intervened as

a party-respondent pursuant to see. 274.12(6), Stats.,
because of the issue of constitutionality. The state considers
the appeal to be a challenge to the underlying secs. 59.971
and 144.26, Stats., and a challenge to the states
comprehensive program to protect navigable waters
through shoreland regulation.
Evrard, Evrard, Duffy, Holman, Faulds & Peterson, Wayne
R. Peterson, Green Bay, for appellants.
James E. Murphy, Corp. Counsel, Marinette, for Marinette
County.
[2]
There can be no disagreement over the public
purpose sought to be obtained by the ordinance. Its basic
purpose is to protect navigable waters and the public rights
therein from the degradation and deterioration which
results from uncontrolled use and development of
shorelands. In the Navigable Waters Protection Act, sec.
144.26, the purpose of the states shoreland regulation
program is stated as being to aid in the fulfillment of ht
estates role as trustee of its navigable waters and o promote
public health, safety, convenience and general welfare.1
In sec. 59.971 (1), which grants authority for shoreland
zoning to counties, the same purposes are re-affirmed. 2
The Marinette County shoreland zoning ordinance in secs.
1.2 and 1.3 states the uncontrolled use of shorelands and
pollution of navigable waters of Marinette county adversely
affect public health, safety, convenience, and general
welfare and impair the tax base.
Robert W. Warren, Atty. Gen., Steven M. Schur, Asst. Atty,

Gen., Madison, for impleaded respondent.
McBurney, Musolf & Whipple, Carlyle H. Whippie,
Madison, amici curiae.
HALLOWS, Chief Justice.
Marinette Countys Shoreland Zoning Ordinance
Number 24 was adopted September 19, 1967,
became effective October 9, 1967, and follows a
model ordinance published by the Wisconsin
Department of Resource Development in July of
1967. See Kusler, Water Quality Protection For
Inland Lakes in Wisconsin: A Comprehensive
Approach to Water Pollution, 1970 Wis. L. Rev.
35, 62-63. The ordinance was designed to meet
standards and criteria for shoreland regulation
which the legislature required to be promulgated
by the department of natural resources under sec.
144.26, Stats. These standards are found in 6 Wis.
Adm. Code. Sec. NR 115.03, May, 1971, Register
No. 185. The legislation, ses. 59.971 and 144.26,
Stats., authorizing the ordinance was enacted as
a part of the Water Quality Act of 1965 by ch.
614, Laws of 1965.
The shoreland zoning ordinance divides the shorelands of

Marinette County into general purpose districts, general
recreation districts, and conservancy districts. A
conservancy district is required by the stastutory
minimum standards and is defined in sec. 3.4 of the
ordinance to include all shorelands designated as swamps
or marshes on the United States Geological Survey maps
which have been designated as the Shoreland Zoning Map
of Marinette County, Wisconsin or on the detailed Insert
Shorelands for the purpose of ordinances are

defined in sec. 59.971 (1), Stats., as lands within
144.26 Navigable waters protection law (1) To aid in the fulfillment of the states role as trustee of its navigable waters and to promote public
health, safety, convenience and general welfare, it is declared to be in the public interest to make studies establish policies, make plans and
authorize municipal shoreland zoning regulations for the efficient use, conservation, development and protection of this states water resources.
The regulations shall relate to lands under, abutting or lying close to navigable waters. The purposes of the relations shall be to further the
maintenance of safe and healthful conditions: prevent and control water pollution: protect spawning grounds, fish and aquatic life: control
building sites, placement of structure and land uses and reserve shore cover and natural beauty..
59-971 Zoning of shorelands on navigable waters (1) To effect the purposes of s. 144.26 and to promote the public health, safety and general
welfare, counties may, by ordinance enacted separately from ordinances pursuant to s. 59.97, zone all lands (referred to herein as shorelands) in
their un-incorporated areas within the following distances from the normal high-water elevation of navigable waters as defined in s.144.26 (2)
(d): 1,000 feet from a lake, pond or flowage: 300 feet from a river or stream or to the landward side of the flood plain, whichever distance is
greater. If the navigable water is a glacial pothole lake, the distance shall be measured from the high water-mark thereof.
167
Shoreland Zoning Maps. The ordinance provides for

permitted uses 3 and conditional uses. 4 One of the
conditional uses requiring a permit under sec. 3.42(4) is
the filling, drainage or dredging of wetlands according to
the provisions of sec. 5 of the ordinance. Wetlands are
defined in sec. 2.29 as (a)reas where ground water is at
or near the surface much of the year or where any segment
of plant cover is deemed an aquatic according to N.C.
Fassetts Manual of Aquatic Plants. Section 5.42(2) of
the ordinance requires a conditional-use permit for an
filling or grading Of any area which is within three
hundred feet horizontal distance of a navigable waster and
which has surface drainage toward the water ad on which
there is: (a) Filling of more than five hundred square feet
of any wetland which it contiguous to the water . (b)
Filling or grading of more than 2,000 square feet on slopes
of twelve per cent or less.
or ice heave, varying in width from one to three feet.

South of this point, the natural level of the land ranges one
to two feet above lake level. The land slopes generally
toward the lake but has a slope less than twelve per cent.
No water flows onto the land from the lake, but there is
some surface water which collects on land and stands in
pools.
The land owned by the Justs is designated as swamps or
marshes on the United States Geological Survey map and
is located within 1,000 feet of the normal high-water
elevation of the lake. Thus, the property is included in a
conservancy district and, by sec. 2.29 of the ordinance,
classified as wetlands. Consequently, in order to place
more than 500 square feet of fill on this property, the Justs
were required to obtain a conditional-use permit from the
zoning administrator of the county and pay a fee of $20 or
incur a forfeiture of $200 for each day of violation.
In April of 1961, several years prior to the passage of this

ordinance, the Justs purchased 36.4 acres of land in the
town of Lake along the South shore of Lake Noquebay, a
navigable lake in Marnette county. This land had a frontage
of 1,-266.7 feet on the lake and was purchased partially
for personal use and partially for resale. During the years
1964, 1966, and 1967, the Justs made five sales of parcels
having frontage and extending back from the lake some
600 feet, leaving the property involved in thse suits. This
property has a frontage of 366.7 feet and the south one
half contains a stand of cedar, pine, various hard woods,
birch and red maple. The north one half, closer to the lake,
is barren of trees except immediately along the shore. The
south three fourths of this north one half is populated with
various plant grasses and vegetation including some plants
which N.C. Fassett in his manual of aquatic plants has
classified as aquatic. There are also non-aquatic plants
which grow upon the land. Along the shoreline there is a
belt of trees. The shoreline is from one foot to 3.2 feet
higher than the lake level and there is a narrow belt of
higher land along the shore known as a pressure ridge
In February and March of 1968, six months after the

ordinance became effective, Ronald Just, without securing
a conditional-use permit, hauled 1,040 square yards of sand
onto this property an filled an area approximately 20 feet
wide4 commencing at the southwest corner and extending
almost 600 feet north to the northwest corner near the
shoreline, then easterly along the shoreline almost to the
lot line. He stayed back from the pressure ridge about 20
feet. More than 500 square feet of this fill was upon
wetlands located contiguous to the water and which had
surface drainage toward the lake. This fill within 300 feet
of the lake also was more than 2,000 square feet on a slope
less than 12 percent. It is not seriously contended that the
Justs did not violate the ordinance and the trial court
correctly found a violation.
The real issue is whether the conservancy district
provisions and the wetlands filling restrictions are
unconstitutional because they amount to a constructive
taking of the Justs land without compensation. Marinette
3.41 Permitted Uses.
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
Harvesting of any wild crop such as march hay, ferns, moss, wild rice, berries, tree fruits and tree seeds.
Sustained yield forestry subject to the provisions of Section 5.0 relating to removal of shore cover.
Utilities such as, but not restricted to, telephone, telegraph and power transmission lines.
Hunting, fishing, preservation of scenic, historic and scientific areas and wildlife preserves.
Non-resident buildings used solely in conjunction with raising water fowl, minnows, and other similar lowland animals, fowl or fish.
Hiking trails and bridle paths.
Accessory uses.
Signs, subject to the restriction of Section 2.0.
3.42 Conditional Uses. The following uses are permitted upon issuance of a Conditional Use Permit as provided in Section 9.0 and issuance of
a Department of Resource Development permit where required by Section 30.11, 30.12, 30.19, 30.195 and 31.05 of the Wisconsin Statues.
(1)
(2)
(3)
(4)
(5)
(6)
(7)
General farming provided farm animals shall be kept one hundred feet from any non-farm residence.
Dams, power plants, flowages and ponds.
Relocation of any water course.
Filling, drainage or dredging of wetlands according to the provisions of Section 5.0 of this ordinance.
Removal of top soil or peat.
Cranberry bogs.
Piers, Docks, boathouses.
168
county and the state of Wisconsin argue the restrictions of

the conservancy district and wetlands provisions constitute
a proper exercise of the police power of the state and do
not so severely limit the use or depreciate the value of the
land as to constitute a taking without compensation.
to prevent a public harm. Rathkopf, The Law of Zoning

and Planning, Vol. 1, ch. 6, pp. 6-7.
[10] This case causes us to re-examine the concepts of
public benefit in contrast to public harm and the scope of
an owners right to use of his property. In the instant case
we have a restriction on the use of a citizens property, not
to secure a benefit for the public, but to prevent a harm
from the change in the natural character of the citizens
property. We start with the premise that lakes and rivers in
their natural state are unpolluted and the pollution which
now exists is man made. The state of Wisconsin under the
trust doctrine has a duty to eradicate the present pollution
and to prevent further pollution in its navigable waters.
This is not, in a legal sense, a gain or a securing of a benefit
by the maintaining of the natural status quo of the
environment. What makes this case different from most
condemnation or police power zoning cases is the
interrelationship of the wetlands, the swamps and the
natural environment of shorelands to the purity of the water
and to such natural resources as navigation, fishing, and
scenic beauty. Swamps and wetlands serve a vital role in
nature, are part of the balance of nature and are essential
to the purity of the water in our lakes and streams. Swamps
and wetlands are a necessary part of the ecological creation
and now, even to the uninitiated posses their own beauty
in nature.
[3-8] To state the issue in more meaningful terms, it is a

conflict between the public interest in stopping the
desoilation of natural resources, which our citizens until
recently have taken as inevitable and for granted, and an
owners asserted right to use his property as he wishes.
The protection of public rights may be accomplished by
the exercise of the police power unless the damage to the
property owner is too great and amounts to a confiscation.
The securing or taking of a benefit not presently enjoyed
by the public for its use is obtained by the government
through its power of eminent domain. The distinction
between the exercise of he police power and condemnation
has been said to be a matter of degree of damage to the
property owner. In the valid exercise of the police property,
the damage suffered by the owner is said to be incidental.
However, where the restriction is so great the landowner
ought not to bear such a burden for the public good, the
restriction has been held to be a constructive taking even
though the actual use or forbidden use has not been
transferred to the government so as to be a taking in the
traditional sense. Stefan Auto Body v. State Highway
Comm. (1963), 21 Wis.2D 363, 124, N.W.2d 319; Buhler
v. Racine County (1966), 33 Wis.2d 319, 146 N.W.2d 403;
Nick v. State Highway Comm. (1961), 13 Wis.2d 511, 109
N.W.2d 71, 111 N.W.2d 95; State v. Becker (1934), 215
Wis. 564, 255 N.W. 144. Whether a taking has occurred
depends upon whether the restriction practically or
substantially renders the land useless for all reasonable
purposes. Buhler v. Racine County, supra. Th loss caused
the individual must be weighed to determine if it is more
than he should bear. As this court stated in Stefan, at pp.
369-370, 124 N.W.wd 319, p. 323, .if the damage is
such as to be suffered by many similarly situated and is in
the nature of a restriction on the use to which land may be
put and ought to be borne by the individual as a member
of society for the good of the public safety, health or general
welfare, it is said to be a reasonable exercise of the policy
power, but if the damage is so great to the individual tat he
ought not to bear it under contemporary standards, then
courts are inclined to treat it as a taking of the police
power.
[11, 12] Is the ownership of a parcel of land so absolute

that man can change its nature to suit any of his purposes?
The great forests of our state were stripped on the theory
mans ownership was unlimited. But in forestry, the land
at least was used naturally, only the natural fruit of the
land (the trees) were taken. The despoilage was in the
failure to look to the future and provide for the reforestation
of the land. An owner of land has no absolute and unlimited
right to change the essential natural character of his land
so as to use it for a purpose for which it was unsuited in its
natural state and which injures the rights of others. The
exercise of ht police power in zoning must be reasonable
and we think it is not an unreasonable exercise of that power
to prevent harm to public rights by limiting the use of
private property to its natural uses.
[13] This is not a case where an owner is prevented from
using his land for natural and indigenous uses. The uses
consistent with the nature of the land are allowed and other
uses recognized and still others permitted by special permit.
The shoreland zoning ordinance prevents to some extent
the changing of the natural character of the land within
1,000 feet of a navigable lake and 300 feet of a navigable
river because of such lands interrelation to the contiguous
water. The changing of wetlands and swamps to the damage
of the general public of upsetting the natural environment
and the natural relationship is not a reasonable use of that
land which is protected from police power regulation.
Changes and filling to some extent are permitted because
the extent of such changes and fillings does not cause harm.
We realize no case in Wisconsin has yet dealt with
[9] Many years ago, Professor Freund stated in his work

on The Policy Power, sec. 511, at 546-547, It may be said
that the state takes property by eminent domain because it
is useful to the public, and under the police power because
it is harmful . From this results the difference between
the power of eminent domain and the police power, that
the former recognizes a right to compensation, while the
later on principle does not. Thus the necessity for
monetary compensation for loss suffered to an owner by
police power restriction arises when restrictions are placed
on property in order to create a public benefit rather than
169
shoreland regulations and there are several cases in other

states which seem to hold such regulations
unconstitutional; but nothing this court has said or held in
prior cases indicate that destroying the natural character
of a swamp or a wetland so as to make that location
available for human habitation is a reasonable use of the
land when the new use, although of a more economical
value to the owner, causes a harm to the general public.
court held if damages to plaintiffs property were in fact

caused by flooding from a dam constructed by a public
utility, those damages constituted a taking within the
meaning of the condemnation statues. In Bino v. Hurley
(1955), 273 Wis. 10, 76 N.W.2d 571, the court held
unconstitutional as a taking without compensation on
ordinance which, in attempting to prevent pollution,
prohibited the owners of land surrounding a lake from
bathing, boating, or swimming in the lake. In Piper v. Ekern
(1923), 180 Wis. 586, 593, 194 N.W. 159, 162, the court
held a statute which limited the height of buildings
surrounding the state capitol to be unnecessary for the pubic
health, safety, or welfare and, thus, to constitute an
unreasonable exercise of the police power. In all these cases
the unreasonableness of the exercise of the police power
lay in excessive restriction of the natural use of the land or
rights in relation thereto.
[14, 15] Wisconsin has long held that laws and regulations
to prevent pollution and to protect the waters of this state
from degradation are valid police-power enactments. State
ex rel. Martin v. Juneau (1941), 238 Wis. 564, 300 N.W.
187; State ex rel. LaFollette v. Reuter (1967), 33 Wis. 2d
272, 168 N.W.2d 304; Reuter v. Department of Natural
Resources (1969), 43 Wis. 2d 272, 168 N.W.2d 860. The
active public trust duty of the state of Wisconsin in respect
to navigable waters requires the state not only to promote
navigation but also to protect and preserve those waters
for fishing, recreation, and scenic beauty. Muench v. Public
Service Comm. (1952), 261 Wis. 492, 53 N.W.2d 514, 55
N.W.2d 40. To futher this duty, the legislature may delegate
authority to local units of the government, which the state
did by requiring countries to pass shoreland zoning
ordinances. Menzer v. Elkhart Lake (1971), 51 Wis.2d 70,
186 N.W.2d 290.
Cases holding the exercise of police power to be reasonable

likewise provide no assistance to Marinette county in their
argument. In More-Way North Corp. v. State Highway
Comm. (1969), 44 Wis.2d 165, 175 N.W.2d 749, the court
held that no taking occurred as a result of the states
lowering the grade of a highway, which necessitated
plaintiffs reconstruction of its parking lot and loss of 42
parking spaces. In Wisconsin Power & Light Co. v.
Columbia County (1958), 3 Wis.2d 1, 87 N.W.2d 279, no
taking was found where the county, in relocating a
highway, deposited gravel close to plaintiffs tower,
causing it to tilt. In Nick v. State Highway Comm., supra,
the court held where property itself is not physically taken
by the state, a restriction of access to a highway, while it
may decrease the value of the land, does not entitle the
owner to compensation. In Buhler the court held the mere
depreciation of value was not sufficient ground to enjoin
the county from enforcing the ordinance. In Haslinger v.
Hartland (1940), 234 Wis. 201, 290 N.W. 647, the court
noted that (a)ssuming an actionable nuisance by the
creation of odors which make occupation of plaintiffs farm
inconvenient and impair its value, it cannot be said that
defendant has dispossessed plaintiffs or taken their
property.
[16, 17] This is not a case of an isolated swamp unrelated

to a navigable lake or stream, the change of which would
cause no harm to public rights. Lands adjacent to or near
navigable waters exist in a special relationship to the state.
They have been held subject to special taxation, Soens v.
City of Racine (1860), 10 Wis.271, and are subject to the
state public trust powers, Wisconsin P. & L. Co. v. Public
Service Comm. (1958), 5 Wis.2d 167, 92 N.W.2d 241; and
since the Laws of 1935, ch. 303, counties have been
authorized to create special zoning districts along
waterways and zone them for restrictive conservancy
purposes. 5 The restrictions in the Marinette county
ordinance upon wetlands within 1,000 feet of Lake
Noquebay which prevent the placing of excess fill upon
such land without a permit is not confiscatory or
unreasonable.
The Justs rely on several cases from other jurisdictions

which have held zoning regulations involving flood plain
districts, flood basins and wetlands to be so consficatory
as to amount to a taking because the owners of the land
were prevented from improving such property for
residential or commercial purposes. While some of these
cases may be distinguished on their facts, it is doubtful
whether these differences go to the basic rationale which
permeates the decision that an owner has a right to use his
preprty in any way and for any purpose he sees fit. In
Dooley v. Town Plan & Zon. Com. Of Town of Fairfield
Cases wherein a confiscation was found cannot be relied

upon by the Justs. In State v. Herwing (1962), 17 Wis.2d
442, 117 N.W.2d 335, a taking was found where a
regulation which prohibited hunting on farmland had the
effect of establishing a game refuge and resulted in an
unnatural, concentrated foraging of the owners land by
waterfowl. In State v. Becker, supra, the court held void a
law which established a wildlife refuge (and prohibited
hunting) on private property. In Benka v. Consolidated
Water Power Co. (1929), 198 Wis. 472, 224 N.W. 718, the
In Jefferson County v. Timmel (1952), 261 Wis. 39, 51 N.W.2d 518, the constitutionality of a conservancy district use restriction was upheld as
being based on a valid exercise of police power. The purpose for this conservancy district, however, was for highway safety and not for the
prevention of pollution and the protection of the public trust in navigable waters.
170
(1964), 151 Conn. 304, 197 A.2d 770, the court held the
restriction on land located in a flood plain district prevented
its being used for residential or business purposes and thus
the restriction destroyed the economic value to the owner.
The court recognized the land was needed for public
purpose as it was part of the area in which the tidal stream
overflowed when abnormally high tides existed, but the
property was half a mile from the ocean and therefore could
not be used for marina or boathouse purposes. In Morris
County Land I. Co. v. Parsippany-Troy Hills Tp. (1963),
40 N.J. 539, 193 A.2d 232, a flood basin zoning ordinance
was involved which required the controversial land to be
retained in its natural state. The plaintiff owned 66 acres
of a 1,500-acre swamp which was part of a river basin and
acted as a natural detention basin for flood waters in times
of very heavy rainfall. There was an extraneous issue that
the freezing regulations were intended as a stop-gap until
such time as the government would buy the property under
a flood-control project. However, the court took the view
the zoning had an effect of preserving the land as an open
space as a water-detention basin and only the government
or the public would be benefited, to the complete damage
of the owner.
of special permits is a means of control and accomplishing

the purpose of the zoning ordinance as distinguished from
the old concept of providing for variances. The special
permit technique is now common practice and has met with
judicial approval, and we think it is of some significance
in considering whether or not a particular zoning ordinance
is reasonable.
A recent case sustaining the validity of a zoning ordinance
establishing a flood plain district is Turnpike Realty
Company v. Town of Dedham (June, 1972), 72 Mass. 1303,
284 N.E.2d 891. The court held the validity of the ordinance
was supported by valid considerations of public welfare,
the conservation of natural conditions, wildlife and open
spaces. The ordinance provided that lands which were
subject to seasonal or periodic flooding could not be used
for residences or other purposes in such a manner as to
endanger the health, safety or occupancy thereof and
prohibited the erection of structures or buildings which
required land to be filled. This case is analogous to the
instant facts. The ordinance had a public purpose to
preserve the natural condition of the area. No change was
allowed which would injure the purposes sought to be
preserved and through the special-permit technique,
particular land within the zoning district could be excepted
from the restrictions.
In State v. Johnson (1970), Me., 265 A.2d 711, the Wetlands

Act restricted the alteration and use of certain wetlands
without permission. The act was a conservation measure
enacted under the police power to protect the ecology of
areas bordering the coastal waters. The plaintiff owned a
small tract of a salt-water marsh which was flooded at high
tide. By filling, the land would be adapted for building
purposes. The court held the restrictions against filling
constituted a deprivation of a reasonable use of the owners
property and, thus, an unreasonable exercise of the police
power. In MacGibbon v. Board of Appeals of Duxbury
(1970), 356 Mass. 635, 255 N.E.2d 347, the plaintiff owned
seven acres of land which were under water about twice a
month in a shoreland area. He was denied a permit to
excavate and fill part of his property. The purpose of the
ordinance was to preserve from despoilage natural features
and resources such as salt marshes, wetlands, and ponds.
The court took the view the preservation of privately owned
land in its natural, unspoiled state for the enjoyment and
benefit of the public by preventing the owner from using
it for any practical purpose was not within the limit and
scope of the police power and the ordinance was not saved
by the use of special permits.
[19] The Justs argue their property has been severely

depreciated in value. But this depreciation of value is not
based on the use of the land in its natural state but on what
the land would be worth if it could be filled and used for
the location of a dwelling. While loss of value is to be
considered in determining whether a restriction is a
constructive taking, value based upon changing the
character of the land at the expense of harm to public rights
is not an essential factor or controlling.
We are not unmindufl of the warning in Pennsylvania Coal
Co. v. Mahon (1922), 260 U.S. 393, 416, 43 S.Ct. 158,
160, 67 L.Ed. 322:
.. We are in danger of forgetting that a strong
public desire to improve the public condition is
not enough to warrant achieving the desire by a
shorter cut than the constitutional way of paying
for the change.
This observation refers to the improvement of the public

condition, the securing of a benefit not presently enjoyed
and to which the public is not entitled. The shoreland
zoning ordinance preserves nature, the environment, and
natural resources as they were created and to which the
people have a present right.6 The ordinance does not create
or improve the public condition but only preserves nature
from the despoilage and harm resulting from the
unrestricted activities of humans.
[18] It seems to us that filling a swamp not otherwise

commercially usable is not in and of itself an existing
use, which is prevented, but rather is the preparation for
some future use which is not indigenous to a swamp. Too
much stress is laid on the right of an owner to change
commercially valueless land when that change does
damage to the rights of the public. It is observed that a use
On the letterhead of the Jackson County Zoning and Sanitation Department, the following appears: The land belongs to the people a little of
it to those dead some to those living . But most of it belongs to those yet to be born.
171
[20] We note the lower court dismissed the action

commenced by the Justs, although it sought a declaratory
judgement and the rights of the Justs were declared. This
dismissal is in conflict with the procedure which this court
has made clear should be followed, namely, that the
complaint should not be dismissed when contrary to the
plaintiffs contention, but rather the judgement should set
forth the declaratory adjudication. City of Milwaukee v.
Milwaukee County (1965), 27 Wis.2d 53, 67, 133 N.W.2d
393; David A. Ulrich, Inc. v. Saukville (1959), 7 Wis.2d
173, 181, 96 N.W.2d 612; Denning v. Green Bay (1955),
271 Wis. 230, 72 N.W.2d 730.
The exercise of the power to declare laws unconstitutional

by inferior courts, should be carefully limited and avoided
if possible. The authorities are to the effect that unless it
appears clearly beyond a reasonable doubt that the statute
is unconstitutional, it is considered better practice for the
court to assume the statute is constitutional, until the
contrary is decided by a court of appellate jurisdiction.
172
173
DECISION NO. A25/98
IN THE MATTER
of the Public Works Act 1981
AND
IN THE MATTER
of an objection under section 23(3) of the Act by

P G HATTON and V C G HATTON
MIS 12/96)
To:
The Far North District Council

Kaikohe
And to:
P G and V C G Hatton
Taupo Bay
REPORT AND FINDINGS OF THE ENVIRONMENT COURT
174
to which the Hattons had objected. The other parts have

since been acquired by the District Council for road, by
agreement with the respective owners. 4 The District
Council only needs to acquire the pieces of land owned by
the Hattons which were the subject of its notice of intention
to take in order to complete legalisation of the Taupo Bay
Road on the alignment on which it has been formed and
used for many decades.
INTRODUCTION
1.
By notice dated 13 June 1996, the Far North District
Council gave notice to PAUL GUSTAV HATTON and
VIRGINIA CAROLINE GROSVENOR HATTON (the
Hattons) of its intention to take parts of their land1 at Taupo
Bay for road.
2.
By notice to the Registrar of the Planning Tribunal
dated 4 July 1996 the Hattons objected under section 23(3)
of the Public Works Act 1981 to the proposal by the District
Council to take that land.
7.
In their notice of objection, the reasons given by the
Hattons for their objection were
(i)
The land is sought to be taken to further private

interests rather than the public interest.
(ii) Alternative legal road access is available to that
which is sought to be taken.
(iii) The fact that an existing formed road crosses the
objectors land is irrelevant as such road has been
constructed without legal mandate.
(Iv) The objectors land is not required to provide a legal
link between existing legal roads as alternative legal
access is available.
(v) The land is sought to be taken by the Council to
remedy errors by it in approving land development
when no legal formed road access to such areas so
developed was in fact available.
(vi) The Council has failed to meet the statutory
responsibility imposed upon it to negotiate in good
faith to acquire the land now sought to be taken prior
to commencing this acquisition action.
(vii) The amount of land being sought to be take is
excessive.
(viii) The taking of the objectors land is inappropriate
and/or premature as such will not provide
unrestricted legal road access as claimed there being
other land to be acquired before that can be achieved
with no guarantee being available that such land can
in fact be acquired.
(ix) The process initiated by the Council through first
its notice of desire to acquire land and then its
subsequent notice of intention to take land is invalid
in that such documents do not correctly describe the
land sought to be taken.
3.
On 5 February 1997 the District Council sent to the
Environment Court 2 and to the Hattons a reply to the
objection.
4.
Pursuant to section 24(3) of the Public Works Act,
the Environment Court has inquired into the objection and
the intended taking, and for that purpose it conducted a
public hearing at Waitangi on 27, 28 and 29 January 1998.
The members of the Court who conducted that hearing
were Environment Judge D F G Sheppard (presiding),
Environment Commissioner P A Catchpole and
Environment Commissioner I G McIntyre. At the hearing
the District Council was represented by counsel, Mr M A
Ray, and the Hattons were represented by counsel, Mr G J
Mathias.
5.
Taupo Bay Road passes from State Highway 10 at
Akatere some 10 kilometres to Taupo Bay. It is the only
formed road access to Taupo Bay, the settlement at which
has a permanent population of about 90 people. The road
has been in existence since about 1910-1915, and it has
been maintained by the District Council and its predecessor
3
for many years. In about 1989 or 1990 the District Council
had the surface of a section of the road sealed. That section
was on the last hill into Taupo Bay, where the road had
been a problem for maintenance and for safety to road
users.
6.
In about 1995 the District Council proposed to seal
the road from State Highway 10 to the existing sealed
section on the last hill, and it also hoped to seal the last 1.2
kilometres from the bottom of the sealed hill into the
township at Taupo Bay. Preliminary surveys showed that
parts of the road which had long been formed and used
did not pass along the legal alignment for the road. Those
parts included sections of road on pieces of a property
which had been bought by the Hattons in 1991, and which
were the subject of the District Councils notice of intention
1
2
3
4
8.
In addressing the Environment Court at the hearing,
counsel for the Hattons stated their case in these terms:
(i)
(ii)
the objective of the local authority is to primarily

foster/enhance private rather than public interests;
inadequate consideration has been given to
alternative routes or other methods of achieving its
stated objective;
The pieces of land described in the notice are described in the Schedule at the end of this report.
The Environment Court is the same court as the former Planning Tribunal: see section 6(1) of the Resource Management Amendment Act 1996.
Taupo Bay, and the road to it, was in the district of the former Whangaroa County Council until the reorganisation of local government in 1989.
A gazette notice to give effect to a recommendation by the Maori Land Court for a declaration as road of a former Maori road line has not yet been
published, but it is not suggested that the delay arises from anything other than pressure of work in Land Information New Zealand; nor is there
any reason for doubting that the declaration will be gazetted in due course.
175
(iii)
it would not be fair, sound and reasonably necessary

for the land of the objectors to be taken; and
(iv) the Council has failed to negotiate in good faith such
being a pre-requisite before any compulsory acquisition
pursuant to section 18(1)(d) PWA.
Private interests of property owners
9.
Counsel announced that the nine grounds of
objection set out in the notice of objection would be
covered in the consideration of those four matters.
15. In support of the Hattons case that the District

Council is seeking to take the land for the private interests
of the owners and residents of Taupo Bay, they relied on a
passage in a report dated 9 June 1995 to the Councils
Operations Committee which recommended that the
Council commence procedures under the Public Works Act
for the acquisition, compulsorily if necessary, of the subject
land. The passage of the report referred to read:
Finally, by way of some background to this
process, Council has received numerous letters
[and phone calls] of support from the Taupo Bay
community [resident and non-resident],
encouraging Council to continue on with the
process of acquiring the land from the Hattons
for the road.
10.
Having inquired into the objection and intended
taking and having conducted its hearing for that purpose,
the Environment Court has to ascertain the objectives of
the District Council; enquire into the adequacy of the
consideration given to alternative sites, routes, or other
methods of achieving those objectives; and decide whether
in its opinion it would be fair, sound, and reasonably
necessary for achieving the objectives of the District
Council for the objectors land to be taken.5
While most of these are firmly focused on having

the remainder of the road into the Bay sealed, there
is a recognition from the population that their
properties are legally without access into or out
of the township, and that has caused considerable
consternation.
11. The Court has a discretion to send the matter back

to the District Council for further consideration in the light
of any directions the Court might give.6
16. Counsel for the District Council replied that the

Councils objective is to provide a public road for use by
the public at large. He sought to distinguish the case of
provision of an access lane across the rear of a property to
provide access to a neighbours property, as in Adams v
Hutt County Council 10 , and reminded us that the existing
road follows its legal alignment except for a few short
stretches which are required to complete it, and repeated
that the Council has a single agenda, to complete the legal
road.
12. The elements of the Hattons case stated by their

counsel are now considered in turn by reference to the
matters to which the Court has to give attention.
PRIVATE RATHER THAN PUBLIC INTERESTS

13. First we consider the claim that the District Councils
objective is to primarily foster/enhance private interests
rather than the public interests. It is well established that a
taking authority may not acquire more land than is
reasonably necessary for the work proposed7 ; that a power
given for promoting the public interest may not be used
for promoting a private interest8 ; and that a public authority
may not acquire land for a collateral objective 9 .
17. In Adams v Hutt County Council the Court of Appeal

held that it was not within the power to take land for a
service lane to do so if the purpose of the proposed service
lane is to provide an individual landowner with access for
his family and friends and others whose business with him
is of an entirely private nature, and there is no reasonable
prospect that it will be used by the general public.
14. There were two main limbs to the Hattons case in

this respect. The first was that the District Council is
seeking to acquire the land for the private benefit of the
owners and residents of properties at Taupo Bay, properties
which over a period of many years have been subdivided
and developed with the approval of the District Council
and its predecessor without legal road access. The second
limb was that the District Council is seeking to take more
land than the minimum amount necessary, for the collateral
purpose of giving adjacent properties frontages to the road
which they did not previously have. Each of those issues
is addressed separately.
5
6
7
8
9
10
11
18. Adams v Hutt County Council does not appear to

have been cited in Bartrum v Manurewa Borough 11, in
which the Supreme Court restrained a borough council
from taking land to provide a neighbour with sufficient
road access to enable him to subdivide his land, as
promoting the interest of the subdividing owner.
19. We accept the District Councils submission that
those cases are distinguishable from the present. We find
Public Works Act 1981, section 24(7)(a), (b) and (d).

Public Works Act 1981, section 24(7)(c).
Quinlin v Mayor etc of Wellington [1929] NZLR 491.
Bartrum v Manurewa Borough [1962] NZLR 21.
Municipal Council of Sydney v Campbell [1925] AC338.
[1957] NZLR 774 (CA).
[1962] NZLR 21.
176
will not now or ever be improved in any way,

without some form of widespread consultation
process, such as, for example, the District Plan
process which allows for public notification and
submissions on such proposals, so that what is
eventually adopted in the plan is reflective of that
Communitys desires.
that in this case the Councils objective is to make lawful

what has long since been formed and used as a public road.
The road is used and is intended to be used by the public
generally, and it is not confined to use by owners of land
at the Taupo Bay settlement. As an elected body, the District
Council could be expected to wish to be informed by way
of some background of expressions of the views of its
constituents. However the fact that the Council was
informed of views supportive of the proposal does not
cause us to doubt the finding we have made about the
Councils objective. We do not accept the first limb of the
Hattons case in this respect.
Mr and Mrs Hatton require that the above condition

be secured somehow, and I believe that
identification in the district plan would be the only
practical mechanism for a Council to covenant
to do not to do any thing.
Finally also, the state of formation of the Road is
not the important issue here - Council wishes to
secure legal public access into the Bay, by the
acquisition and gazettal of land for Road; and what
may happen to the road by way of maintenance,
upgrading, whatever, will be carried out by Council
in accordance with its statutory rights and
obligations under the Public Works, Local
Government and other Acts once that access is
secured.
Taking more land than needed

20. From the outset the Hattons had made plain to the
District Council their attitudes that if their land was to be
acquired, they should have a significant say in how the
access is to be constructed, and to limit it to the condition
it was in 1990 when they bought their land, or in 1994
before the sealing was carried out. In a letter to the District
Council dated 21 March 1995 Mr Hatton set out their
preliminary thoughts of their minimum requirements in
seven items of which the second was this
The Hattons have also been assured that the land

the Council requires is the minimum required for
the Road. While they wish to retain some of the
land under their control, I do not feel that Council
could be seen to be acting either fairly or
reasonably in agreeing to a situation where other
landowners are left in a situation where the access
to their properties, and their use and enjoyment
of their land, is left in the hands of a private
individual, when it is possible to legalise the area
[that has always been in use and generally
accepted] as a public road.
...
The Hattons have advised in discussions that their
desire is not for financial gain, but that it is their
basic philosophy that the road should never be
improved.
...
While negotiations on the compensation/land
exchange proposals mentioned above will
continue, it is unlikely that Council can meet their
primary condition of consent; ie that the road will
never be improved [realigned, widened sealed].
The land and/or easements that we would create

over the land ... would, first only include the area
reasonably required by the Council for a roadway
and, secondly would, as a minimum, retain in our
ownership a small strip of land, belonging to us,
on both the northern and southern edges of our
property. (This might involve a very minor
adjustment to the current road line, to retain
this strip on the Northern side in one piece for 10
metres or so).
21. The report of 9 June 1995 to the Councils Operations

Committee contained a summary of their position in that
respect in the following passages:
Mr and Mrs Hatton have so far declined to Consent
to the road, requiring the following conditions to
be met by Council ;
That Council covenant with them [in some way]
that the road from the top of the hill down to the
Bay will never be realigned, improved, widened
or sealed;
22. Counsel for the Hattons explained that they wanted

the area taken kept to a minimum, and to keep strips to
give them control, and submitted that there was nothing
in the report to the Council which provides justification
for the taking of the totality of the land owned by the
Hattons for road. He contended that any additional
purposes for which land, or the extent of the land, sought
to be acquired could not justify the taking now sought,
and that the extent of the land sought is excessive for that
purpose. By way of example he quoted the following
passages from a letter from the Council to the Hattons dated
1 June 1995
That Council will let the existing length of seal

going down the last hill to the Bay deteriorate
until it is no better than a metalled road;
That the land required for road be kept to a
minimum, leaving part of the land in the Hattons
ownership.
[This is a brief outline of their conditions; they
are spelled out in more detail in the Hattons letters
to Council.]
Specifically, the full width of land desired for road

from the Voyce property to the Motor Camp is
required, as access to the Owhero Stream is
Mr and Mrs Hatton have been advised that Council

has no mandate to arbitrarily decide that any road
177
title, 13 and a building could not be erected on it in

compliance with the required setbacks. The witness
suggested that if it is part of the road, the area could be
useful for a pull-off area for vehicles which break down
on the hill, and could be used to dispose of spoil if there is
a slip in the area, or for other road maintenance purposes.
necessary for present and future drainage and river

control works.
... I do not feel that Council could be seen to be
acting either fairly or reasonably in agreeing to a
situation where other landowners are left in a
situation where the access to their properties, and
their use and enjoyment of their land, is left in
the hands of a private individual when it is possible
to legalise the area [that has always been in use
and generally accepted] as a public road.
30. Mr Winch gave the opinion that in order to provide

for safe operation and maintenance of the road, and safe
and convenient access to it, taking those pieces of land for
road is reasonably necessary. The witness also expressed
the opinion that creation of separation strips to give the
Hattons control over access to other properties from the
road would be improper, because one of the reasons for
public roads is to provide access to properties. In crossexamination he confirmed that he had considered keeping
the amount of land required to the smallest amount
necessary, to the accuracy that the engineering plans had
been prepared, in order to contain the present road
formation and the road batters.
23. Counsel gave particulars of three respects in which

the Hattons contended that more land was proposed to be
taken than the minimum needed for the road.
24. The first was that part of the land proposed to be
taken at the eastern end of the Hattons property (described
in the Schedule to this report) is on the other side of the
Owhero Stream from the road itself, and that the only
justification for taking that part is to provide the full 20metre prescribed standard road width 12 , but the report of
9 June 1995 had not referred to the Councils power to
reduce the width where it is difficult or inexpedient to
provide the standard width.
31. It is our understanding that this second limb of the

Hattons case depends on whether the District Council is
correct in its attitude that providing road access to adjoining
properties is a proper purpose of a road, or whether the
Hattons are correct in claiming that provision of that access
is promoting the private interests of the adjoining owners,
and that intervening strips of land, not strictly needed for
the passage of traffic, should be left in their ownership. It
was not suggested that those strips would be capable of
being used by them in any way other than as a means of
controlling possible subdivision or development of
adjoining properties.
25. The second was that within the same area part of a
very steep bank was sought to be taken, and that this area
was the subject of an approval for subdivision.
26. The third was land at the western end of the Hattons
property where the width of the land proposed to be taken
is about 40 metres.
27. The District Councils response was in the evidence
of a consulting engineer Mr M J Winch. He deposed that
the first area there is insufficient width between the existing
legal boundary and the Owhero Stream to accommodate a
road without realigning the stream on to the adjoining
motor camp property.
32. Our understanding of the scope of the proper purpose

of a road is derived from the common law of highways. That
branch of law developed in England over centuries, but for
the present case we do not need to delve into history. In 1935
Lord Atkin described the legal position in this way 14
28. Mr Winch deposed that the second area (the bank)

is on the inside of a curve and needs to be part of the road
to ensure that a safe sight distance can be maintained.
The owner of land adjoining a highway has a right

of access to the highway from any part of his
premises. The rights of the public to pass along
the highway are subject to this right of access ...
the ordinary traffic on any highway is always liable
to be increased by the exercise by an adjoining
owner of this right of access. The passage of the
public along a footway is always liable to be
temporarily interrupted by adjoining owners right
of access, whether to the footway or the roadway
...
As was pointed out by the Lord Chief Justice, it
would be remarkable to find this well established
right of an adjoining owner taken away and without
compensation, especially in a local Act, unless
there were very plain words to that effect.
29. In respect of the land at the western end, Mr Winch

deposed that the legal road width would be increased to
40 metres to avoid leaving an unusable severance of
approximately 900 square metres. He accepted that it would
be possible to move the road over to reduce the area of
land required, and deposed that the realignment would cost
around $30,000 and would result in a lower standard of
alignment in order to save a relevant insignificant area of
land. The possible severance of about 900 square metres
is considerably smaller than could be allowed as a separate
12 Local Government Act 1974, 11th Schedule, clause 1.

13 The minimum site area prescribed by the proposed district plan is 1 hectare.
14 Marshall v Blackpool Corporation[1935] AC 16, 22.
178
33.
As recently as 1955 the Master of the Rolls said 15
exercising those rights. Therefore we hold that defining

the area of land to be take for road to extend to the adjoining
property boundaries, to accord the right of access to and
from those properties, is for the purpose of the road, and is
not for a collateral purpose of promoting their private
rights. For the District Council to have defined the land to
be taken in the way contended for by the Hattons, by
leaving strips of land in the Hattons ownership to give
them the power to control subdivision and development
on the neighbouring properties, would be to diminish the
public purpose of the road for the private benefit of the
Hattons, and we agree with Mr Winch that to do so would
not have been a proper exercise of public power.
The rights of members of the public to use a

highway are, prima facie, rights of passage to and
from places which the highway adjoins...
34. In Halsburys Laws of England the law is stated in

this way 16
At common law an owner of land adjoining a
highway is entitled to access to that highway at
any point at which his land actually touches it,
but he has no such right if a strip of land, however
narrow, belonging to another and not subject to
the public right of passage, intervenes.
38. We also accept the Councils attitude that in taking

land for road it may properly take not only the width needed
for a carriageway, but whatever additional width may be
needed for batters, for sight lines, for drainage and stream
control works, or other engineering requirements so that
the road can be safe for use by the public and can be
maintained in that condition. In summary, we do not accept
the second limb of the Hattons objection that the amount
of land proposed to be taken is excessive in that it is more
than may be needed for carriageway, or that allowing
adjacent properties frontages to the road is an improper
exercise of the Councils power.
35. Returning to New Zealand, we start with the

definition of road in the Local Government Act 1974
17
Road means the whole of any land which is

within a district, and which
(a) Immediately before the commencement of
this Part of this Act was a road or street or
public highway; or
(b) Immediately before the inclusion of any area
in the district was a public highway within
that area; or
(c) Is laid out by the council as a road or street
after the commencement of this Part of this
Act; or
(d) Is vested in the council for the purpose of a
road as shown on a deposited survey plan;
or
(e) Is vested in the council as a road or street
pursuant to any other enactment ...
ALTERNATIVE ROUTES
39. The second main element of the Hattons case was
that inadequate consideration had been given by the District
Council to alternative routes or other methods of achieving
its stated objective. In that respect, it was submitted that it
is not for us to decide which is the better route or method;
and that it is for the Council (and not its officers) to consider
the alternatives having regard to the advice of its engineers
and consultants. 20
36. It is well established in this country that the common

law rights of frontagers to access to adjoining roads apply
here. 18 Activities on roads which are ancillary to the main
purpose were discussed recently. 19
40. For the Hattons it was submitted that the Council

had given no consideration to alternative routes or methods,
as the staff report to the Operations Committee dated 20
June 1995 had contained no assessment of any alternatives
but had been confined to the taking of the Hattons land.
37. In this case the District Council proposes to take

the Hattons land for road. For this purpose, that means it
proposes to take it for road within the meaning given to
that word in the Local Government Act, a meaning which
includes a public highway. The authorities show that a
purpose of a public highway is for frontagers to have access
to and from the highway along the frontage of their
properties. The existence of a strip of land intervening
between their properties and the highway, as the Hattons
propose, would preclude owners of those properties from
15
16
17
18
19
20
41.
In his evidence Mr Hatton said

While it seems that there is no formal legal access
available, and that in the case of a road from Totara
North the gradient would be rather steep, there
does not appear to have been a serious let alone
Randall v Tarrant [1955] 1 All ER 600 (CA), 603, per Evershed, MR.
Halsburys Laws of England (4th ed) vol 21, paragraph 123.
Local Government Act 1974, section 315(1).
See for example Middleton v Takapuna Borough [1945] NZLR 434 and Fuller v MacLeod [1981] 1 NZLR 390 (CA).
See Paprzik v Tauranga District Council [1992] 3 NZLR 176.
Davis v Wanganui City Council (1986) 11 NZTPA 240.
179
any attempt made to acquire the pieces of land

which would provide for a roadway for the full
length of the roadline between Totara North and
Taupo Bay. Similarly no alternatives appear to
have been considered to acquire land to alleviate
gradient concerns.21
opinions that construction of a road through that area would

be very damaging to the environment, and that it is unlikely
to be agreed to by the owners of sections of land required
for the route beyond the legal road. He added that the
community of interest for Taupo Bay residents lies with
Mangonui, Taipa and Kaitaia, and that if a road from Taupo
Bay to Totara north could be formed, it would be 11.2
kilometres longer than the present road for motorists
travelling north. In addition, the Totara North road would
not bypass the pieces of land proposed to be taken at the
eastern end of the Hattons land.
... if the Council is entitled to compulsorily acquire

private land for the purpose of a road into Taupo
Bay then presumably the road could be relocated
on another property so as to avoid my property.
It would seem from the Councils evidence that
this is in fact the case.
44. Mr Winch had also considered a possible alternative

route to the north, also shown on cadastral plans, which
he referred to as the Tupou route. It forms a loop from the
Taupo Bay Road 3.8 kilometres long. The western 2.2
kilometres is formed as road, but the initial 1 kilometre
was never public road, and the central 0.9 kilometre, which
traverses a steep hillside, had not been formed and had
been closed as road and sold to the adjoining property
owners. Mr Winch deposed that the side slope of over 20%
and the unstable soils made that route impractical for
roading. The final 0.8 kilometre is legal road with an
existing track partly on the legal road and partly on
neighbouring properties. Mr Winch deposed that this route
would be expensive to form and would have high ongoing
maintenance costs and the risk of road severance due to
slips. If it could be formed it would be 1.7 kilometres longer
than the present Taupo Bay Road and, like the putative
road from Totara North, would not bypass the pieces of
land proposed to be taken at the eastern end of the Hattons
land.
Certainly to relocate would be more expensive

and our property may be the most convenient for
the Council to pursue but when we are not willing
sellers should our land be taken simply to suit
the convenience of the Council when it has brought
this situation on itself? From the evidence there
does not appear to have been any attempt to
actually investigate whether other landowners
would sell parts of their land to the Council for
the required road.22
42. In their original objection the Hattons had claimed

that alternative legal access is available. That assertion was
not made out by that or any other evidence. Mr Winch
testified that there is no continuous legal road connecting
Taupo Bay with the remainder of the road network, and
we find that to be so.
43. Totara North is a settlement on the northern shore
of the Whangaroa Harbour. The reference to an alternative
route from Totara North was addressed in Mr Winchs
evidence. He deposed that the cadastral plans show a road
between Taupo Bay Road and Totara North about 7.5
kilometres long, but that it is largely unformed. At one
point the route descends steeply at a gradient of 50% and
Mr Winch testified that it would not be possible to construct
a road to an acceptable gradient while keeping the road
and earthworks within the legal road boundaries in that
area. The continuity of the legal road is broken at the
Wairakau Stream where a section of Crown land severs
the road. There is a walking track generally on the road
from the Wairakau Stream to Totara North, but it does
deviate significantly in one place. The track has a gradient
of up to 20%. Mr Winch deposed that this is too steep for
normal vehicles and that reducing the gradient to an
acceptable grade could not be achieved without deviating
from the legal alignment. The route passes through land
which is almost entirely administered by the Department
of Conservation or Maori land and is covered in
regenerating native forest. The area is designated both a
Significant Natural Area and of Outstanding Landscape
Value on the proposed district plan. Mr Winch gave the
45. Mr Winch accepted that it is physically possible to

bypass the Hattons property by realigning and
reconstructing the Taupo Bay Road on other private
property adjoining the existing road. He had considered
three options for doing that.
46. Option A would realign the road to the south of the
piece proposed to be taken at the western end of the Hatton
property. Land from two private properties would be
required. The total area of that land would be 1.6120
hectares, more than the 1.0037 hectares required for the
present alignment of the road, because more extensive
earthworks would be required to cross a gully and spur.
The new alignment would be 625 metres long, compared
with the existing length of 610 metres between the same
points. The witness estimated that the cost of formation
and construction of a sealed road on that route would be
about $180,000, compared with the estimated costs of
$36,000 for sealing the 270 metres of existing road
(currently unsealed) which would be bypassed.23
21 Page 8, paragraph 3.2.

22 Page 9, paragraph 5.
23 The cost estimates do not include land purchase costs or GST.
180
47. Option B would realign to the south the existing road

at the eastern end of the Hattons land. Parts of three private
properties would be required instead of the Hatton land at
that end. Their total area would be 4,660 square metres,
compared with the 2,408 square metres to complete the
existing road at that end. The deviation would have to cross
the Te Owhero Stream and a tributary, requiring three large
box culverts. A 20-metre wide road reserve would come
within 1 metre of the Voyce house, and the road
construction would require removal of at least two rows
of pine trees on the Voyce property. Mr Winch gave the
opinion that the lack of screening and the proximity of the
road to the house would severely reduce the amenity value
of the Voyce house. The road reserve on the southern side
of the Te Owhero Stream would also encroach within 6
metres of a motorcamp building, and the witness
considered that the amenity value of the motorcamp would
be adversely affected. The new alignment would be 360
metres long compared with the existing road length of 330
metres between the same points. The estimated cost of a
sealed road on that route would be about $203,000,
compared with about $32,000 for sealing the existing
unsealed road.
50. Having heard Mr Winch crossexamined, we find that

he approached his tasks with the skill and integrity of a
professional consultant, and we accept his evidence and
opinions accordingly.
51. In these proceedings it is the duty of the Court to
enquire into the adequacy of the consideration given to
alternative routes or other methods of achieving the
Councils objective. 24 Insofar as that objective is cast as
legalising the existing Taupo Bay Road, it begs the question
of alternative routes. It should be understood to be the
provision of a legal public road to Taupo Bay.
52. A duty for the taking authority to give consideration
to alternative routes or methods is to be inferred from the
direction to the Court to consider the adequacy of that
consideration.25 In this case the evidence does not establish
that the Council gave consideration to alternative routes
or methods, as it should have done. The consideration of
the alternatives was done by Mr Winch, after the District
Council had given notice of its intention to take the Hattons
land, and after they had lodged their objection. In these
respects the process followed by the District Council was
deficient.
48. Option C would realign to the north the existing road

at the eastern end of the Hattons land. Parts of three private
properties would be required instead of the Hatton land at
that end. Their total area would be 4,610 square metres,
compared with the 2,408 square metres to complete the
existing road at that end. This option would also create
two severances, one of about 2,100 square metres and the
other of about 410 square metres. The deviation would
start at the western end at an existing track, climb over a
spur, and descend to rejoin the existing road across Lot 95
DP 56268. That property has a shed at the back but is
otherwise vacant. Although it is not as wide as the standard
road width of 20 metres, a road could be accommodated
on it because the land is completely flat. However purchase
of that property for road would deny the owners the use of
their property, and the road realignment would also result
in loss of amenity for neighbouring properties by changing
a side boundary to road frontage and opening up the rear
of the properties to view from the road.
53. It is important that all public authorities exercising

powers conferred by Parliament faithfully follow the
procedures prescribed by law. A public authority exercising
powers to take private property compulsorily is expected
to follow the processes intended with particular care.
54. We have considered whether the regrettable
omission of the District Council to do so in respect of
consideration of alternative routes and methods of
achieving its objective should be decisive of these
proceedings. However there are two reasons why we have
concluded that its omission should not lead us to allow the
objection on that ground alone.
55. The first relates to the provisions of the Public Works
Act. The Act does not directly and expressly impose a duty
to consider alternative routes and methods: that has to be
inferred from the duty imposed on the Court when an
objection is lodged. Further, the Act does not direct the
Court to send the matter back to the local authority in any
case when it finds that inadequate consideration has been
given to alternatives. Parliament has expressly provided
that the Court is to exercise a discretion whether or not to
send the matter back.
49. A box culvert over the Owhero Stream would be

required to provide physical access to the motorcamp at
the frontage with the legal road. The route would involve
extensive earthworks in crossing the spur. The new
alignment would only be 320 metres long, compared with
350 metres between the same points on the existing
alignment. Mr Winch estimated that the cost of forming
and constructing a sealed road on this route would be about
$160,000, compared with about $32,000 for sealing the
corresponding stretch of the existing unsealed road.
56. The second ground relates not to process but to the

substance of the alternative routes and methods. In that
respect, we find that on the evidence before us the case for
preferring the completing the legalisation of the existing
24 Public Works Act 1981, section 24(7)(b).

25 Davis v Wanganui City Council (1986) 11 NZTPA 240; Ngatikahu Trust Board v Mangonui County Council Planning Tribunal Decision A 57/89.
181
road, long since formed and in use, over all the alternative
routes and methods, is so overwhelming that it would be
empty pedantry to send the matter back to the District
Council with a direction that it consider them. The only
sensible outcome could be formation of an opinion that in
the public interest all the alternatives are inferior to the
current proposal. Such a process would be futile.
The second is that the road was formed along the present
route in about 1915; it has been maintained and improved
by successive local authorities since then; so that when
the Hattons came to buy their land in 1990 the course of
the road over pieces of the land which they bought was
already long established and clearly evident. On the basis
of those factors, and recognising that the law provides for
payment of full compensation for the land taking and for
any injurious affection or damage,27 it is our opinion that
the taking for road of those pieces of the Hattons land
would be fair.
57. In summary the result of our enquiry into the

adequacy of the consideration given to alternative routes
or other methods of achieving the District Councils
objectives is that the consideration was omitted, and in
the circumstances of these proceedings that is not decisive
against that proposed taking.
61. We have now to consider the fourth ground of the

Hattons case, their assertion that the District Council failed
to negotiate with them in good faith, and if so, whether
that made it unfair for their land to be taken.
FAIR SOUND AND REASONABLY NECESSARY
FAILURE
58. The third ground for the Hattons case is that it is

not fair, sound, or reasonably necessary for achieving the
District Councils objective for their land to be taken. That
language reflects the Courts duty to decide whether in its
opinion it would be fair, sound, and reasonably necessary
for achieving the objectives of the local authority for the
objectors land to be taken. 26
TO NEGOTIATE IN GOOD FAITH
62. The Hattons alleged that the District Council had

failed to negotiate in good faith with them in an attempt to
reach an agreement. They relied on section 18(1)(d) of the
Public Works Act 1981 which provides
Where any land is required for a public work the
... local authority ... shall, before proceeding to
take the land under this Act
...
Make every endeavour to negotiate in good faith
with the owner in an attempt to reach an agreement
for the acquisition of the land.
59. Counsel for the Hattons stated that the basis of their
case in that respect was the matters already considered
under the previous headings, namely that the Councils
objective was to foster private interests rather than the
public interest, and that inadequate consideration had been
given to alternative routes and methods of achieving its
objective. We have already given our reasons for not
accepting the Hattons case in those respects.
63. The District Council asserted that it had complied

with that requirement, and a fully detailed account of the
Councils dealings with the Hattons was contained in the
evidence of Ms L A Winch, the Councils former Property/
Legalisation Officer, and the evidence of Mr R P Manuel,
its Legal Services Co-ordinator.
60. In particular we rely on the evidence of Mr Winch,

which we summarised earlier in this report, for our opinion
that taking the Hattons land would be sound and
reasonably necessary for achieving the Councils true
objective of providing a public road to Taupo Bay. We have
also to decide whether it would be fair to take their land.
That is partly dependent on the fourth ground of the
Hattons case, that the Council had failed to negotiate in
good faith, an assertion which we consider next. Leaving
aside that question about negotiations, we have also to
consider the substantive question whether taking their land
for road would be fair. In that respect our opinion is
influenced by two factors. The first is that we are satisfied
that it is reasonably necessary that there be a public road
to Taupo Bay; that there is no realistic alternative to the
route which passes over the pieces of the Hattons land
which the Council proposes to take; and that those pieces
are no more than is reasonably necessary for the road to
be kept and maintained safe for use, and to allow access
from the private properties along its course as well as for
passage to and from Taupo Bay by the public generally.
64. The Hattons claimed that there had been a fixed

determination from the outset to take the land the subject
of these proceedings, even though the extent of that taking
was seemingly for collateral purposes, such as drainage
and river control work and provision of road boundaries
for adjacent property owners, and without intending or
wishing to consider the Hattons views.
65. From Mr Hattons evidence the heart of this ground
of objection was their preference that Taupo Bay remain
peaceful, quiet and secluded, and their opposition to
anything which might allow more people to visit Taupo
Bay.
66. That attitude underlay two main bases for this ground
of objection. The first was the Hattons wish to retain strips
of land between pieces of land which were to become road
26 Public Works Act 1981, section 24(7)(d).

27 Public Works Act 1981, section 60(1).
182
and the land of adjacent property owners. They wished to

retain those strips so that they could control future
subdivision and development of those properties. The
second was their opposition to sealing of the Taupo Bay
Road, because they supposed that a sealed road would
encourage more people to visit Taupo Bay.
inappropriate for the Council to be ordered to pay costs to

the Hattons. Accordingly, we consider that the costs of the
proceedings should lie where they have fallen, and we
make no order for payment of costs.
72.
67. It is true that the Council officials who were engaged

in negotiating with the Hattons were not willing to deal
with them on the bases of retaining the roadside strips,
and of the Council covenanting that it would not carry out
sealing work on Taupo Bay Road. That was because of the
officials understanding that it would not be proper for the
Council to assist in the creation of such strips for that
purpose, nor for it to fetter the judgment of future councils
whether sealing the road may be in the public interest. We
have found no basis for supposing that their understanding
on those matters was other than genuinely and sincerely
held.
68. Earlier in this report we have given our reasons for
upholding the attitude of the District Council and its
officials about the roadside strips. We also consider that
their attitude to the Hattons stipulation that the Council
covenant not to carry out further sealing on the road, and
to allow the existing sealing to deteriorate, was sound in
law.
(a)
That it has inquired into the objection by the Hattons

to the intention of the District Council to take pieces
of their land (described in the schedule to this report)
for road, and into the proposed taking of those pieces
of land, and for that purpose it conducted a hearing
at Waitangi on 27, 28 and 29 January 1998:
(b)
That it has ascertained that the objective of the

District Council is to provide a public road to Taupo
Bay:
(c)
That it has enquired into the adequacy of the

consideration given to alternative routes and
methods of achieving that objective, and has found
that the District Council omitted to give
consideration to those matters but that is not decisive
of the objection: and
That in its opinion it would be fair, sound and
reasonably necessary for achieving the District
Councils objective for the Hattons land described
in the schedule to this report to be taken.
(d)
69. It follows that in our opinion it was not lack of good

faith, nor was it unfair, for the Council to have taken those
stances in its endeavours to negotiate with the Hattons as
owners in an attempt to reach an agreement for the
acquisition of the land.
The Environment Court reports
THE S CHEDULE
The pieces of land described in the notice of intention to
take land and the subject of this report are in Block II
Whangaroa Survey District and comprised in Certificate
of Title 29A/1247 being
CONCLUSION
1 Part Taupo 2B Block, having an area of 1.0037

hectares, and marked as Area D on SO Plan 66203;
70. During the hearing, we enquired of counsel whether

the history of the formation and maintenance of the Taupo
Bay Road indicated the possibility of the doctrine of
implied dedication, or the provisions of section 110 of the
Public Works Act 1928 or a similar enactment, being
applicable. 28 We record that neither party took the
opportunity to make submissions on those questions.
2 Parts Taupo 4 and 5 Blocks, having areas of

17.6 perches, 33 perches and 1 rood 4.6 perches,
and shown on SO Plan 44975.
DATED at AUCKLAND this 24th day of March 1998.

71. The Court can award costs either in favour of or
against the objector or the District Council.29 We recognise
that it was the Councils action in giving notice of intention
to take the land which initiated the issue between the
parties, and that the Hattons lodged their objection to
protect their interest in their land from a procedure which
they opposed. We consider that it would be inappropriate
to order them to pay costs to the Council. However none
of their grounds of objection was made out so it would be
D F G Sheppard
Environment Judge
hatton.doc
28 See for example Auckland City Council v Man oWar Station (High Court Auckland CP1355/83; 19 August 1997, Anderson J).
29 Public Works Act 1981, section 24(13).
183
DECISION NO. A88/99

IN THE MATTER
AND
IN THE MATTER
of an objection pursuant to section 23(3) of the Public Works Act

1981
BETWEEN
CADE HUBERT DAROUX and CECILY KAY DAROUX

(MIS 13/98)
AND
TIMOTHY FOX FOWLER

(MIS 12/98)
AND
JOHN VICTOR IMPERATRICE and PATRICK JOHN HANNAH

(MIS 10/98)
AND
BETTY CROUDIS and STUART ALEXANDER COMBER

(MIS 21/98)
AND
BETTY CROUDIS, COLIN WILLIAM CROUDIS and STUART

ALEXANDER COMBER
(MIS 22/98)
Objectors
AND
THE MINISTER OF LANDS

Respondent
AND
COUNTIES POWER LIMITED

A Section 274 person
To
: Minister of Lands
And to
: The objectors
And to
: Counties Power Limited
184
REPORT AND FINDINGS OF THE

ENVIRONMENT COURT
have negotiated easements over some of those properties.

Over a number of the others, although Counties Power
has not yet been able to negotiate easements, it has
negotiated permission to obtain access to the lines for the
upgrading work. The objectors in these actions have not
allowed such access.
BASIS OF PROCEEDINGS
1.
Under section 23 of the Public Works Act 1981(the
PWA) the four objectors have objected to a notice of
intention to take an easement against the titles to the
applicants properties served on them by the Minister of
Lands. The notices were dated 10 June 1998.
8.
Counties Power is a network utility operator and, is
a requiring authority under the RMA. In that capacity, Iit
has asked the Minister of Lands (the Minister) to acquire
an interest in the objectors lands, namely an easement for
the conveyance of electricity, on behalf of Counties Power
pursuant to the Ministers powers under the PWA. The
Minister has agreed to the taking of the easement and has
issued notices of intention to take land under the PWA.
2.
The notices were issued following an application to
the Minister by Counties Power Limited (Counties
Power) in December 1996, pursuant to section 186 of the
Resource Management Act (the RMA). This application
requested that the Minister issue a notice taking an
easement over the title to each objectors land for the
purpose of allowing a 110 kilovolt electricity line and
associated poles to run through it.
9.
The objectors have lodged objections with this Court
against the compulsory taking as they are entitled to do
under section 23(3) of the PWA.
THE ENVIRONMENT COURTS JURISDICTION
3.
The Minister served the notices pursuant to his
power to do so under section 23(1)(c) of the PWA. These
proceedings have now been brought by the objectors who
object to the Ministers notice under section 23(3) of the
PWA. This report is made pursuant to section 24(7) of the
PWA.
10. The Courts jurisdiction with regard to these

objections is derived from section 24 of the PWA and in
particular from section 24(7). It states that:
(7) The Planning Tribunal (now the Environment
Court) shall
(a) Ascertain the objectives of the Minister or
local authority, as the case may require:
(b) Inquire into the adequacy of the consideration
given to alternative sites, routes, or other
methods of achieving those objectives:
(c) In its discretion, send the matter back to the
Minister or local authority for further
consideration in the light of any directions
by the Tribunal:
(d) Decide whether, in its opinion, it would be
fair, sound, and reasonably necessary for
achieving the objectives of the Minister or
local authority, as the case may require, for
the land of the objector to be taken:
(e) Prepare a written report on the objection and
on the Tribunals findings:
(f) Submit its report and findings to the Minister
or local authority, as the case may require.
BACKGROUND
4.
Counties Power is a company engaged in the supply
of electricity in the Counties area south of Auckland.
Relevant to these proceedings is the supply of electricity
to the town of Pukekohe.
5.
Counties Power commenced operations on 17 May
1993. The company was formed as a result of the Energy
Companies Act 1992 and is the successor to the Franklin
Electric Power Board, which provided electrical services
in the district from the 1920s. Whereas the Franklin Electric
Power Board engaged in both the retail sale of electricity
and the construction and maintenance of lines and
equipment for the supply of electricity, Counties Power
has now disposed of the retail side of the business.
6.
All of the shares in Counties Power are held in Trust
for the beneficial owners, who are the customers drawing
electricity through the companys network. The trustees
are elected by the beneficiaries.
11. Having inquired into the objections and intended

takings and having concluded its hearing for that purpose,
the Environment Court has to ascertain the objectives of
the Minister which are of course in reality the objectives
of Counties Power; inquire into the adequacy of the
consideration given to alternative sites, routes, or other
methods of achieving those objectives; and decide whether,
in its opinion, it would be fair, sound and reasonably
necessary for achieving the objectives of the Minister for
the easement to be taken.1
7.
These proceedings result from the need for the town
of Pukekohe to have a secure power supply. The option
chosen was to upgrade power lines that supply the town
from 33 kilovolts to 110 kilovolts. The existing 33 kilovolt
lines transverse a number of properties. Counties Power
Public Works Act 1981, section 24(7)(a), (b) and (d).
185
the Minister of Lands to exercise his powers under the

PWA pursuant to section 186.
COUNTIES POWERS LEGISLATIVE S TATUS

12. Counties Power is an electricity distributor as
defined by section 2 of the Electricity Act 1992. It is also
an electricity operator as defined by the same section, but
agreed to sell its retailing operations to Contact Energy on
31 March 1999 under the Electricity Reform Act 1998.
Section 2 of the Electricity Act 1992 states:
HEARING
20. Pursuant to section 24(3) of the PWA, the
Environment Court has inquired into the intended taking
and the objections, and for that purpose it conducted a
public hearing at Auckland on the 24, 25, 26 February 1999,
1 and 2 March 1999, 12 and 13 April 1999, 7 and 20 May
1999. The members of the Court who conducted that
hearing were Environment Judge R G Whiting (presiding),
Environment Commissioner J R Dart and Environment
Commissioner F Easdale. At the hearing the Minister was
represented by Ms B Arthur; Counties Power, which sought
audience under section 274 of the RMA, was represented
by Mr A McKenzie, Mr A Hazelton and Ms M Bromley;.
the objectors, Mr T F Fowler and C H and C K Daroux,
were represented by Ms D R Bates QC; and the remaining
objectors were represented by Mr R A Houston QC.
Electricity distributor means a person who

supplies line function services to any other person
or persons:
Electricity operator means
(a)
(b) Any body or person that, immediately before
the 1st day of April 1993, was the holder of a
licence issued under section 20 of the
Electricity Act 1968 and in force immediately
before that date;
13.
Section 166(c) of the RMA states:

Network utility operator means a person
who
(c) Is an electricity operator or electricity
distributor as defined in section 2 of the
Electricity Act 1992 for the purpose of line
function services as defined in that section.
14. The definition of line function services
within the Electricity Act 1992 is:
(a) The provision and maintenance of works for
the conveyance of electricity;
(b) The operation of such works, including the
control of voltage and assumption of
responsibility for losses of electricity.
15.
21. At the completion of the first 57 days of hearing on

2 March 1999 the proceedings were adjourned part-heard
to 12 April 1999. When the Court resumed on 12 April
1999 counsel advised the Court that in the intervening
period considerable negotiations had been undertaken
between the parties and it appeared that they were close to
settlement. They requested further time and most of the
allocated hearing time for 12 and 13 April was taken up
with the parties being involved in negotiations. Those
negotiations resulted in a resolution of all matters apart
from the duration of the easements. Consent memoranda
were filed with the Court on 15 April 1999 and the consent
memoranda are attached hereto and marked A, B, C and
D, respectively.
Counties Power undertake line function services.
16. Counties Power are therefore a Network Utility

Operator for the purposes of section 166 of the RMA.
22. Following the filing of those memoranda, the matters

were adjourned until the 7 May for a hearing on the one
issue remaining, namely, the duration of the easements. The
hearing was uncompleted on that day and was adjourned to
20 May. At the hearing on 7 May and 20 May, respectively,
Mr Houston QC acted for all of the objectors.
17. By a gazette notice dated 14 December 1993, the

Minister for the Environment approved Counties Power
Limited as a requiring authority for its network operation
of the supply of line function services. Counties Power is
therefore a requiring authority for the purposes of
section 167 of the RMA.
CONSENT MEMORANDA
18. Pursuant to section 186 of the Resource Management

Act 1991:
23. When the consent memoranda were presented to the

Court, we had already heard a considerable amount of
evidence. Consequently, the Court was in a position to be
able to consider the consent memoranda in an informed
way. As a result, we could see no reason to object to, or
question, their detailed provisions.
A network utility operator that is a requiring

authority in respect of a project or work may apply
to the Minister of Lands to have the land required
for the project or work acquired or taken under
Part II of the Public Works Act 1981 as if the
project or work were a Government work within
the meaning of that Act; and, if the Minister of
Lands agrees, the land may be so acquired or
taken.
24. In the circumstances, we do not consider it necessary

to discuss the evidence in detail. In our view, a brief
synopsis will suffice. From the evidence, we find that the
following was established:
19. As Counties Power is both a network utility operator

and a requiring authority under the RMA it can apply to
186
Counties Power takes the supply of electricity from

the national grid operated by Transpower.
Transpower delivers its electricity to Counties Power

via two substations located at Bombay and
Glenbrook, respectively. These are the only two
sources of electricity which are conveniently
available to Counties Power.
From the Bombay and Glenbrook substations the

power is distributed around the Counties Power
network via 33 kilovolt lines. The 33 kilovolt lines
are terminated at substations and from these
substations power is delivered via a local network
of lines at 11 kilovolts.
Pukekohe is supplied by two 33 kilovolt lines, the

north line and the south line, which come directly
from the Transpower substation at Bombay. They
were originally constructed in 1956. The objectors
lands lie along this route.
company access to existing works for the purpose

of inspecting, maintaining or operating those works.
It is not necessary for the purpose of this decision to
set out section 23 of the Electricity Act in detail.
The purpose of having two lines is to ensure security

of supply. In the event that one line is damaged, or
is out of action for the purposes of routine
maintenance, then the other line should be capable
of taking the full load required to be delivered to
Pukekohe. Also, having two lines reduces the risk
that the entire supply will be interrupted by a simple
accident or incident. In this way, security of supply
can be assured.
There has been an ever-increasing demand for the
supply of electricity to the Pukekohe area
commensurate with the areas growth. This increased
demand has put considerable strain on the existing
33 kilovolt lines. The risk to security of supply to
the Pukekohe area is unacceptable if it continues to
be supplied at 33 kilovolts.
Counties Power conducted a number of
investigations, over several years, to consider the
options available to improve the supply to Pukekohe.
It reached a decision in 1995 that the most suitable
solution to this problem was to upgrade the north
and south lines to 110 kilovolts.
It then commenced a programme of consult-ation
with landowners over whose land the north and south
lines ran. Unfortunately, that consultation
commenced on a view by Counties Power as to its
legal rights which was subsequently held to be in
error. Counties Power had received legal advice from
its previous lawyers which indicated that it was able
to exercise a right of entry to the objecting
landowners properties under section 23 of the
Electricity Act 1992. Section 23 allows an electricity
In reliance on that advice, Counties Power proceeded

to obtain the agreement of those landowners with
whom it had been able to reach agreement and, for
the majority of landowners properties, this was not
an issue. However, Counties Power, in furtherance
of its understanding that consent was not strictly
necessary, also proceeded with the work on the land
of those landowners who did not agree.
Some confrontation followed which ultimately

resulted in injunctive proceedings in the Pukekohe
District Court2. That Court found that upgrading the
lines to 110 kilovolts could not be classified as
inspecting, maintaining, or operating the works
and, accordingly, Counties Power could not obtain
the benefit of section 23 of the Electricity Act 1992
for the purpose of performing those works.
We were left in no doubt that commencing

construction of the line over the objectors properties
without their permission caused a great deal of
animosity between the parties. On the one hand,
Counties Power had been advised that they had
statutory authority to do this; on the other hand, the
objectors saw it as an infringement of their rights.
Following the case in the District Court, Counties

Power were faced with the situation of having to
einsure a secure supply to Pukekohe, but were not
able to take advantage of the alternative it had
selected of upgrading the north and south lines.
Further negotiations were, not surprisingly,
unsuccessful. Accordingly, Counties Power
requested that the Minister of Lands proceed to
acquire land, or rather an interest in land, belonging
to the objectors under the PWA.
On 17 December 1996, Counties Power applied to

the Minister of Lands seeking appropriate easements
against the properties of each of the objectors.
Further negotiations in consideration of alternatives
followed.
Over a year later, on 23 December 1997, the Minister

of Lands issued notices of desire to acquire
easements over the properties. There followed
further negotiations by the Minister and Counties
Power. A settlement was reached with one of the
objectors, a Mr Donovan.
2 Counties Power Limited v Betty Croudis & Ors District Court NP182/96 Pukekohe Registry, 29 August 1996.
187
On 10 June 1998, the Minister issued notices of

intention to take an easement under section 23 of
the PWA. Subsequently, objections were lodged
pursuant to section 23(3) of the PWA. Negotiations
(including formal mediation) continued. A
settlement was reached with another of the original
objectors, a Mr Kearney.
specialising in energy issues, and currently holding a

contract to administer the Electricity Network Association.
For the objectors, evidence was given by Mr JH Vernon, a
consulting electrical engineer, and Mr DR Smyth, a
registered valuer. We were able to assess the evidence of
these witnesses in the light of the evidence we had heard
from the many witnesses who had given evidence
previously.
25. The settlements now reached by the present parties

and set out in the consent memoranda filed is, in our view,
consistent with the evidence we heard. We congratulate
the parties oin resolving a large number of issues, some of
them complex because of their effect on one or more of
the parties. The settlement seemed, to us, to be a natural
evolution of events as the evidence unfolded. A synthesis
of the issues was achieved by the evidence-in-chief, crossexamination and re-examination. This synthesis brought
the parties from an apparent arms-length position to one
of accord in all matters but one.
29. Mr Hoskins concern as a planning engineer for

Counties Power, was that a finite term of 50 years for the
easement would be inadequate for the likely physical life
of the lines. He referred us to various distribution scenarios
to cope with increased demand, such as the construction
of a third line, the construction of further zone substations
and the possibility of local generation. In his view, those
different scenarios could extend, indefinitely, the need for
the existing sub-transmission system as allowed under the
easement.
30. Mr Jenkins also gave evidence on behalf of Counties
Power. He has had a long involvement with the electricity
industry in New Zealand. He told us that much of New
Zealands distribution infrastructure was built in the 1950s
and 1960s, using technologies and materials selected for
durability. This period of intensive line construction has,
in his view, created a need for a renewed cycle of
reinvestment, as aging equipment fails or is retired, or as
load growth places higher failure risks on lines. As an
example of the pressures for such reinvestment, he referred
us to the failure of supply to Aucklands CBD in the early
part of last year.
DURATION OF EASEMENT
The Issue
26. The sole issue to be determined by us by way of
recommendation is the duration of the easement. The
objectors original contention was that the easements
should have a finite life, of 50 years, and should come to
an end at that time, whether or not the lines are still in use.
Counties Powers contention was and still is that no
duration for the easements should be specified. The
easements are limited as to the type of line, and the capacity
of the line. Thus, they will come to an end when a line
coming within the terms of the easement ceases to be used
for the purpose of supply to Pukekohe. That may be earlier,
or later, than 50 years from now. No arbitrary limit should
be imposed.
31. He was concerned that imposing a fixed approval

period on line renewal and expansion programmes at the
end of this first major asset life cycle would mean that a
similar cycle would be repeated. If the easement was for a
finite period of 40 or 50 years, pressure for line renewal
will again emerge in 40 or 50 years time. This would have
the inevitable result, he said, of equipment being installed
with a comparable expected economic life. Perpetuating
such a cycle of standardised lives would not, in his view,
be in the best interests of the environment or the economy.
He made a parallel with the emerging pressures for renewal
of other key infrastructure assets such as water supply,
roads and sewerage. He opined that the approval processes
are likely to be overwhelmed as a raft of approval renewal
applications coame in, and simultaneous reinvestment
pressures will place stresses on funding and on developers.
The Legal Test to be applied

27. The starting point for this Court, in considering the
options, is the Ministers notices: they give notice of
intention to acquire an easement, without any specified
duration. Our task in respect of the duration of the
easement, is as set out in section 24(7)(d) of the PWA.
The Land is the land referred to in the notices, i.e., the
easement, of unspecified duration. Accordingly, we must
consider whether it would be fair, sound and reasonably
necessary for achieving the objectives of the Minister for
the easements to be unspecified as to duration.
32. Mr Jenkins also referred to technological changes

which, in his opinion, would easily prolong the life of the
lines well beyond 50 years. He said:
The Evidence
28. On that issue, we heard evidence from two expert
witnesses for Counties Power and two expert witnesses
for the objectors. The two who gave evidence for Counties
Power were Mr M Hoskins, the planning engineer for
Counties Power, and Mr AD Jenkins, a consultant
The last 50 years of power line investment have

been characterised by fairly standard technology:
while the quality of insulators, transformers and
switch gear has improved, essentially, lines on
poles built to standard specifications have
188
continued to do much the same job. (emphasis in

original)
Asset creation: The power supply company will

have an asset that can be sold and a power line
placed in an easement (and), with the added
security that brings, is an enhanced asset that will
be worth more to the company.
It would be presumptuous to assume that the same

core technologies will dominate the lines business
in another 40 to 50 years, or even in another 20
years. Just as mainframe computer technologies
have been supplanted by PCs, I believe that it is
likely we will witness the emergence of a range
of technologies that could well have the effect of
greatly reducing the pressures to replace lines as
load growth continues.
Income production: The line plays a pivotal role

in producing an income stream for the power
supply company. The certainty that this easement
brings is invaluable. This has been taken for
granted in the past.
Term of easement: The longer the term of the
easement the more valuable it must be for the
company and the worse it is for the landowner.
The converse also applies.
For example, new demand-side technologies such

as solar energy measures, heat pumps, etc, are
already available to shift load away from peak
times, meaning that the span of years before a
new lines loading reaches to peak capacity levels
is likely to become extended. Similarly, new
centrifugal storage and local small-scale peaking
generation technologies appear to be becoming
viable.
Contribution: The landowners co-operation is

needed to achieve each of the above. Yet the
landowners neighbours can rejoice that the line
is not in their backyard. The landowner therefore
finds that he has contributed substantially to the
prosperity of the power company and should
expect to be compensated accordingly. 4
With this increasingly varied and dynamic suite

of technologies it would seem to make sound
economic and environmental sense to avoid the
rigidities created by finite approval periods, and
to rely increasingly on market-driven investment
decisions to decide how long lines should exist
for.3
35. Mr Vernon then criticised the option taken by

Counties Power of upgrading the existing line along its
present route. He said:
It bisects some properties, intrudes into a number
of views, limits use of land, and is too close and
too prominent in some locations. Such a route, if
being chosen today, would not be countenanced.
33. Mr Jenkins further opined that it will not contribute

to sound electricity investment decisions to have
uncertainties about the future configuration of the
transmission/distribution system created by finite
easements. Further, he said that, if a precedent of applying
finite approvals is established, investors will face the added
risk that what starts as a 50-year approved period for one
line may become a 30-year period for another line and so
forth. Such a level of increased uncertainty would not make
any positive contribution to the electricity industry, an
industry where the electricity lines, like sewers, roads and
water pipes, make an essential contribution to the nations
economy, and to the quality of life of New Zealanders.
36. He then referred to other options available and then

discussed the financial considerations arising out of
Counties Power obtaining an easement over the objectors
land. He stressed the value of the 110 kilovolt lines to the
company and their financial importance by way of an asset
and the return of income that will accrue to the company
arising from that asset. He then said:In engineering terms the components of a power
line system will wear out and/or degrade over time
and will eventually be unserviceable. There will
generally be failures and breakages in a line which
will require maintenance from time to time but at
some point one or other of the components
generally used in the line will require replacement.
By replacing all the components as they wear out
the engineering life of the line can be extended
indefinitely. We have seen that the north line and
south line were installed in the 1950s and that
major replacement programs were undertaken
around 1986 and in the early 1990s. 5
34. For the objectors, evidence was given on the

question of the duration of the easement by Mr J H Vernon,
an experienced electrical engineer. He worked for the State
Hydro-Electric Department for 5 years and for the
Wellington Municipal Electricity Department for 34 years,
including being its general manager for over 17 years
before he retired in December 1989. He has been engaged
as a consulting engineer since then by various government
and other bodies. Mr Vernon referred to the legislative
changes in recent times resulting in the privatisation of
the electrical industry. He told us that in his view the
electricity reforms have resulted in:
3
4
5
37. Mr Vernon then referred to the difficulty of

predicting what will happen to the Pukekohe area over the
Allan Jenkins paragraphs 4.1-4.4.

Paragraph 8A.
Vernon, paragraph 58.
189
years 7 by not less than ten (10) years notice in

writing by the owner of the land.
next 25 to 50 years and what the electricity supply system

would be like at the end of that time. He opined that
Counties Power wanted to make provision for future
growth in this area, but that growth will force changes in
the land use, which, in turn, can be expected to result in
intensified land use and substantial residential development
in the areas affected by the lines well within 50 years. He
then concluded:
40. Mr D R Smyth, an experienced valuer and a member

of the Land Valuation Tribunal, also gave evidence in
support of the objectors. Like Mr Vernon, he referred to
the legislative changes which brought about the
privatisation of the electrical industry. He then discussed
the benefits that would accrue to Counties Power as a
consequence of a registered easement being obtained over
the objectors land. He opined that, broadly speaking, the
benefits that go with the easement can be summarized as,
firstly, the right to construct, maintain and operate a
transmission line of the size required to service Pukekohe
and to profit therefrom; and, secondly, the opportunity to
sell, assign, sublet or otherwise dispose of the property
right represented by the easement and to gain accordingly.
He stressed that the essential difference between the now
exhausted statutory authority that Counties Power had for
the now redundant 33 kilovolt power lines and the proposed
registered easement is that the former was vested in a
community-based authority for the communitys benefit
and the latter is an essential property right for the
establishment of a private commercial enterprise. He
concluded that, in his view, an appropriate term was
between 40 and 50 years as that length of time will give
the owners of the power line ample time to recover costs
and reap financial reward and to make long-term
commercial decisions. As for the owners of the land along
the power line route, there would then be the opportunity
for each generation to deal with the circumstances of its
time. He, too, modified his stance slightly in his
supplementary evidence to accord with the evidence of
Mr Vernon, when he said:
The electricity industry has had to accept the

concept of allocating all costs correctly. This has
caused the industry to examine in minute detail
how their various costs originate, and it has now
been discovered that easements represent real
value to them, and to the landowners. The value
that is placed on them, and the term of their lives
is a matter for negotiation in each case. I submit
that it would be reasonable, in the present case,
for the tenure and terms of the easement to be
reviewed after 50 years as I have suggested with
the future arrangements and their value being
determined by negotiation or by an appropriate
Court. 6
38. During the course of the cross-examination of him

by Mr McKenzie, what Mr Vernon meant by the words
for tenure in terms of the easement to be reviewed
after 50 years became clear. He was not advocating a
finite period of time for the easement following which the
lines would have to be taken down if successful
negotiations for the renewal of the easement were not
completed, but rather, a review of the various other
conditions of the easement at the end of a period such as
50 years. This conclusion to Mr Vernons evidence was
more in the nature of a submission than an objective
assessment of opinion by an expert for the benefit of the
Court.
It is not expected following from what Mr Vernon

said in evidence on 7 May 1999 that the power
lines must be pulled down and removed in 2049.
What the landowners seek by coming to Court is
a mechanism which allows them, or more correctly
future generations of landowners, to take part in
the decision-making process in 2049 as to the
future use of their land.
39. Mr Vernon s evidence, as clarified during the crossexamination of Mr McKenzie, was not in accord with Mr
Houstons contention that the easement should be of a finite
term, namely, 50 years. As a consequence, Mr Houston
was forced to change his stance slightly by suggesting a
holding over clause. Thus, the objectors position was
modified with the following clauses suggested in writing:
He emphasised that each generation of landowners

and of course the power company should have
the opportunity to deal with the circumstances of
their time.
Term
The term of the transmission easement shall be
fifty (50) years.
COUNSELS SUBMISSIONS
Holding over
Notwithstanding the term above mentioned the
grantee shall have the right to continue to use the
easement land and transmission easement in the
terms of the transfer which shall remain in full
force and effect after the expiry of the term until
or unless terminated after the period of fifty (50)
6
7
41. Mr McKenzie, on behalf of Counties Power,

addressed the three requirements in section 24(7)(d) of the
Act, namely, which of the two options would be fair, sound
and reasonably necessary for achieving the objectives of
Counties Power.
Vernon, paragraph 62.

The words underlined were added verbally by Mr Houston.
190
42. With regard to fairness, he submitted that the 50year option would impose an arbitrary cut-off with no
rational basis and which would have serious implications
for Counties Power and the consumers of Pukekohe. He
submitted that it would not be fair to impose a limit based
upon an assumption as to the likely life of the line, which
would be unnecessary to protect the position of one party
if the assumption is correct, but severely burdensome on
the other party if the assumption is incorrect. A
consideration of fairness, he contended, strongly favours
the unspecified option rather than one which seeks to
impose an arbitrary time limit based on what are, at this
stage, uncertain future events.
46. Since the purpose of the lines is to secure adequate

supplies of electricity to Pukekohe, he submitted that it is
clearly reasonably necessary that the easement should last
as long as the lines are achieving that purpose. He
emphasised that, on their terms, and, even if their duration
was unspecified, the easements are not available to
Counties Power in perpetuity to make whatever
arrangements it chooses to supply Pukekohe. They apply
only to the lines described, and are limited, in practice, to
the useful life of those lines. He submitted that, in
considering what is reasonably necessary from the
perspectives of both the landowners and the company, the
appropriate balance to be achieved is: the landowners
position is protected in that they have certainty that the
only lines permitted are those described and when those
lines cease to be the appropriate means of supply, the rights
under the easement will expire; and the companys position
is protected to the extent that it can make its planning
decisions in the knowledge that it will have the use of the
lines so long as they remain useful. He acknowledged that
technology may, within the next 50 years, change so
radically that the lines will be redundant. If that happens,
then, because of their restriction to lines of a particular
voltage and capacity, the easements will become redundant,
and will be able to be extinguished. He added the
cautionary note that it would be most imprudent to predict
that such a technological change rendering the lines
redundant will happen, or as to its likely timing.
43. With regard to soundness, he submitted that the test

on this element is of the technical soundness of the
proposed duration of the easement, which, in turn, involves
a consideration of what is sound from a technical point
of view, namely, whether the term of the easement will
provide a sound technical solution to the problem which
the easement is intended to address. He submitted that it
would not be sound to impose an arbitrary time limit which
may mean that a transmission line, which is still being
operated in an effective way and which still forms part of
a technically sound distribution and supply system, would
be rendered inoperable. That would be neither technically
nor commercially sound.
44. Mr McKenzie further submitted that the implications
of a decision to impose an arbitrary time limit on the
easements will extend far beyond this particular case and,
if a time limit is imposed for these lines, then it may well
become a precedent for other cases. Against that
background, time- limited easements, whether by
negotiations, or by compulsory acquisition, could be
expected to become the industry norm. This would severely
damage the ability to make sensible technical and
investment decisions, in areas which extend far beyond
the distribution system itself.
47. Mr McKenzie also submitted that it is appropriate

to compare what Parliament considered as appropriate for
the protection of existing lines when the statutory right of
access for lines in general was removed. He referred to
section 23 of the Electricity Act 1992 which preserves a
right of access to inspect, maintain and operate existing
lines, which are, essentially, the same rights as those
conferred by the easements settled between the parties.
Parliament did not see fit to impose an arbitrary time limit
on the exercise of those rights.
45. He then addressed the third issue, namely, what

duration of easement is reasonably necessary for
achieving the objectives of the Minister. He submitted
that, in the light of the settlement of all other matters, the
proper approach is upon the basis that achieving those
objectives involves:
48. Mr Houston cited Telecom Auckland Limited v

Auckland City Council 8 and the Court of Appeals
approval of the principle that a statute should not be read
to make it do more than is necessary to achieve its purpose.
Blanchard J, in delivering the decision of the Court of
Appeal cited with approval the English Court of Appeal
Judges when they said in Newcastle-under-Lyme
Corporation v Wolstanton Ltd.9
(a) The granting of easements for the lines;

(b) The lines are to conform with the descriptions
in the easements; that is, single or double
circuit lines of a 110 kilovolts;
(c) The rights under the easements are to
construct the lines and to inspect, maintain,
repair and operate the lines.
In these circumstances and bearing in mind

the general rule that no greater right or interest
rights or interests should be treated as conferred
on the undertakers than are necessary for the
fulfilment of the object of the statute .10
8 1999 1 NZLR 426 CA.

9 [1947] Ch. 92.
10 Ibid p. 435.
191
49. He submitted that the Court should not recommend

more than is reasonably necessary to fulfill the rights of
the utility, an electricity operator, to construct its 110
kilovolt transmission lines and to inspect, maintain, repair
and operate those 110 kilovolt lines. He referred to the
contents of the Ministers notices and submitted that the
Court cannot go outside the notices or expand or enlarge
their intent.
DETERMINATION
54. In recent times, particularly since 1987, the
electricity industry has been progressively restructured.
The initial reforms restructured the electricity generation
sector of the industry. On 1 April 1987, the Electricity
Corporation of New Zealand Limited was established as a
state-owned enterprise. It acquired the assets of the
electricity division of the Ministry of Energy. Hitherto,
the Minister of Energy had held responsibility for the
production, transmission and supply of electricity.
Regulatory barriers to entry into the electricity industry
were removed. On 1 April 1988, Transpower Limited was
established as a subsidiary of the Electricity Corporation
of New Zealand Limited. On 1 July 1994, Transpower
Limited was split from the Electricity Corporation of New
Zealand Limited and established as an independent stateowned enterprise. This split was intended to ensure open
and competitive access for all potential suppliers to the
transmission line.
50. Mr Houston stressed that Counties Power Limited

is a private utility company whose aim is to make a
commercial profit. He addressed section 24 of the Act as
to what would be fair, sound and reasonably necessary for
achieving the objectives of Counties Power. He submitted
that it is difficult for Counties Power to assert that an
easement in perpetuity is fair, sound and reasonably
necessary to enable them to do what they have always
claimed is but an upgrade of their lines. He also referred
to the fact that approximately one quarter of the existing
landowners over whose properties the lines traverse, have
not yet granted easements.
55. In addition to the reforms in the generation sector,

there has been restructuring of the electricity supply sector
of the industry. The Energy Companies Act 1992 provided
for the corporatisation of electricity supply authorities. This
has been complemented by the Electricity Act 1992 which
deals with the regulation of the electricity sector. Electricity
supply companies are now able to compete for customers
in each others geographic areas.
51. He reminded us that the route runs through some of

the most valuable and productive land in the country and
where closer settlement is already taking place. He pointed
out that the line runs close to large residential dwellings
and he cited the following head note from Dean v AttorneyGeneral:
The power of the Crown to acquire land
compulsorily arose from the ancient right of
eminent domain and was a draconian, but
necessary, power in a complex and collective
society. To the extent that the Crowns powers
were a direct interference with individual property
rights, those powers must be strictly construed
and must be exercised in good faith and even
handedly.
56. The effect of the recent restructuring and progressive

reform has been the privatisation of the electricity industry.
Power companies have significant and increasing private
ownership and the state-owned enterprises are now in a
position where they can be sold to the private sector. A
competitive or market-related return is expected on all
assets employed. This is in sharp contrast to the concept
of community benefit, which was part and parcel of the
old electricity boards constituted under the Electric Power
Boards Act 1925. Section 84 of that Act gave the boards
wide powers to enter upon private land for the purposes of
constructing, maintaining and repairing power lines. Those
wide powers were not transferred to the new entities and,
with regard to power lines, the statutory authorities were
restricted to maintaining and operating those lines that were
in place prior to, or at the time of, the passing of the 1992
Act 12 . It follows that Counties Power now requires
registered easements and in common with other new power
companies must rely much more on consultation and
negotiation with landowners then they have had to in the
past. If negotiation fails they may apply to the Minister of
Lands to have the land required for the project or work
acquired or taken under the Public Works Act 1981 as if
52. He referred to Hammond Js judgment at page 191

line 27 where the learned Judge said:
including due regard to the interest of the
person being dispossessed and fairness.
53. Mr Houston submitted that it is reasonable that each

generation of citizens should have an opportunity to deal
with the circumstances of the day. He contended that we
are dealing with competing requirements, wishes and
points of view of landowners and an electrical utility
company and the needs of the public generally for
electricity supply. The landowners are suggesting that, in
approximately two generations time, that is, 50 years from
now, the easements be re-negotiated. Fairness, he says
demands that the, then, landowners have their say.
11 1997 2 NZLR 180.

12 See Part III of the Electricity Act 1992 sections 22-29.
192
the project or work was a government work within the

meaning of that Act 13 . The effect of any proclamation
taking the land would be to vest the land in the network
utility operator instead of in the Crown. Accordingly, any
easement would become an asset of the utility operator, in
this case Counties Power, and, accordingly, could be
assigned, sublet or otherwise disposed of by it.
59. The importance of continuance of supply was clearly

recognised by Mr Vernon when he said, during the course
of Mr McKenzies cross-examination:
Yes, but I havent heard anyone say that the line
has to be pulled down after 40 years or 50 years.
Certainly it has been suggested and I support the
concept that the easement and the terms of it be
reviewed but perhaps it may be necessary to protect
the line itself .14
57. We are acutely conscious of the effect of the

legislative changes which have brought about the
privatisation of the electrical industry. We particularly note
what Mr Vernon stressed namely, that the essential
difference between the now exhausted statutory powers
for the redundant 33 kilovolt line and the proposed
easement is that the former was vested in a community
based authority for the community benefit and the latter is
a commercial property right. This significant difference is
however only part of the picture. Electricity still remains
and will continue to remain in the foreseeable future an
important public utility. The shift to privatisation does not
in any way diminish the importance of electricity as a
commodity necessary for many facets of modern day living
across the whole spectrum of human endeavour from
domestic to industrial. No doubt it is for this reason that
Parliament prescribed the right for a network utility
operator to apply to the Minister of Lands to take land
under Part II of the PWA. What is required is a proper and
fair sense of balance between the two interests.
60. Mr Vernons evidence was reflected in the amended

proposition, including a holding over clause, put to the
Court by Mr Houston on behalf of the objectors. It is that
amended proposition that now needs to be judged, against
an unspecified duration limited to the type and capacity of
the line.
61. The starting point is the principle enunciated in
Telecom Auckland Ltd.: that a statute should not be read
to make it do more than is necessary to achieve its purpose.
The notices of intention to take say:
1. Take notice that the Minister of Lands proposes
to take under the Public Works Act 1981 an
easement over your land described in the
schedule to this notice.
2. The easement is required for the transmission
of electricity and to permit the upgrading of
the existing Bombay to Pukekohe transmission
lines to 110 kv.
58. As we have said, the easement opted for by Counties

Power is an easement with no duration stated but which
would come to an end when a line coming within the terms
of the easement, ceased to be used for the purpose of
supplying electricity to Pukekohe. We find on the evidence
that the life of the line could exceed 50 years. The effect
of recommending the option of a finite term as first
contended by the objectors would impose an arbitrary cutoff which could have serious implications. A further period
of consultation and negotiation would be required and, in
the event of this being unsuccessful, some form of
compulsory acquisition would again have to be effected
depending upon the law at the relevant time. Such a task is
not insurmountable even taking in the worse scenario. But
if power companies were to be faced with a constant raft
of such incidents over a period of time we can see immense
difficulties not just for the power companies, but more
importantly, for the consumers of electricity. Continuity
of electricity supply is not a luxury, it is a necessity. It
takes little imagination to recognise the chaos that can be
caused to all sectors of the community arising out of an
inability to provide an adequate and continuous supply of
electricity to a district. As an illustration of that chaos, we
were referred in evidence to the consequences of the recent
loss of an adequate supply of electricity to the central
business district of Auckland City.
REASONS
FOR
TAKING L AND
The reasons why the Minister considers it essential

to take an easement over your land are as follows:
The existing 33 kv lines are no longer sufficient
to meet increasing demand for power and must
be upgraded to conduct 110 kv. The easement is
necessary because the statutory protection to the
existing lines will not extend to an upgrading.
62. Mr Houston urged us to take a narrow view of the

wording of the notices. He submitted that an easement of
unspecified duration was not reasonably necessary to
achieve an upgrade of the lines. It would be artificial to
put such a narrow construction on the wording of the notices.
The purpose of the lines is to secure adequate supplies of
electricity to Pukekohe. It follows that once the lines have
been upgraded then the lines require to be maintained in a
condition that will ensure a continuous supply.
63. It is at least implicit in Mr Houstons submissions
that the holding over clause will meet the concerns of
continuity of supply by giving the power company 10 years
(over and above the 50 years) in which to re-negotiate new
13 Section 186(1) of the Resource Management Act.

14 Page 16 of transcript.
193
terms or take alternative action. This brings us to a

consideration of what would be fair, sound and reasonably
necessary to achieve the objectives of the Minister.
is also protected. We therefore find that, in our opinion, it

would be fair, sound and reasonably necessary for achieving
the objectives of Counties Power for the easement to contain
an unspecified term but to apply only to the lines described
and limited to the useful life of those lines.
64. The starting point must now be that the lines should
not be removed until such time as they are no longer
required for the conveyance of electricity within the terms
of the contract. That was the clear import of Mr Jenkins
evidence. We found his evidence most helpful and he
impressed us with both his expertise and his objectivity.
It was also as far as Mr Vernon was prepared to go; he
could not envisage the lines having to be arbitrarily
removed. What emerged from Mr Vernons evidence was
that, not the duration, but the terms of the easement
be reviewed at a fixed period.
COSTS
69. The Court can award costs either in favour of or
against the objector or the other parties15. We recognise
that it was Counties Power, through the statutory procedure
of applying to the Minister to give notice of intention to
take the land, which initiated the issue between the parties.
The objectors lodged their objections to protect their
interests in their land from a procedure which they opposed.
We consider that it would be inappropriate to order them
to pay costs. Some of their grounds of objection were
resolved by consent. Their objection relating to the life of
the easement was not made out, so it would be
inappropriate for Counties Power to be ordered to pay the
costs of the objectors. Accordingly, we consider that the
costs of the proceedings should lie where they have fallen,
and we make no order for payment of costs.
65. No suggested wording of an appropriate review

clause was put forward. Such a clause would have to
provide for a complex disputes resolution procedure in the
event of the parties being unable to agree. However, as we
understand Mr Houstons submission, the holding over
clause is in lieu of the review clause and may well extend
the duration of the easement.
THE ENVIRONMENT CCOURT REPORTS
66. We have already stressed what we consider to be a

need for continuity of supply. With regard to the question
of fairness, we accept Mr McKenzies submission to the
effect that it would be severely burdensome on the power
company to be required to re-negotiate an easement in the
event of the lines being needed after the initial period of
50 years. Such a burden would be increased if easements
limited in duration became the accepted norm. While the
lines and their easements are valuable assets, the
commercial benefit to the company should not distract us
from the need to ensure continuity of supply to the
consumers. We emphasise that the commercial benefit to
the power company and the corresponding detriment to
the objectors, are matters to be considered more in the
award of compensation and therefore a matter that is
subject to a different jurisdiction.
(a)
(b)
(c)
67. Further, we consider it would not be technically

sound, when planning for an electricity supply system
which must provide for continuity of supply for an
undefined period, to impose arbitrary time restrictions on
the optimum structure of the network. Such restrictions
would severely damage the ability of a power company to
make sensible technical decisions.
(d)
68. In making those observations, we stress that the

easements, on their terms, and even if their duration was
unspecified, are not available to Counties Power in perpetuity.
They apply only to the lines described and are limited in
practice to the useful life of those lines, which may be more,
or may be less, than the sought for 50 or 60 years. To that
extent the landowners are protected. The companys position
That it has inquired into the objection by the

objectors to the intention of the Minister to take an
easement against the titles to the objectors properties
and into the proposed taking of those easements,
and for that purpose it conducted a hearing at
Auckland on 24, 25 and 26 February 1999; 1 and 2
March 1999; 12 and 13 April; and 7 and 20 May
1999.
That it has ascertained that the objectives of the
Minister at the request of Counties Power is to
upgrade the existing lines from 33 kilovolts to 110
kilovolts so as to secure an adequate supply of
electricity to Pukekohe.
That, having considered the adequacy of the
consideration given to alternative routes and
methods of achieving that objective, it has found
that the memoranda of consent filed by the parties
are appropriate in the circumstances and that the
easements should be for an unspecified term; and
That, to give effect to the memoranda of consent
would, in its opinion, be fair, sound and reasonably
necessary for achieving the objectives of the
Minister and that it would be fair, sound and
reasonably necessary for achieving those objectives
for the easements to be for an unspecified term.

R Gordon Whiting
Environment Judge
15 See for example Auckland City Council v Man OWar Station High Court Auckland CP 1355/83; 19 August 1997, Anderson J).
194
3
The Place of Culture in
Environmental
Management
195
DECISION NO. A73/2000

IN THE MATTER
AND
IN THE MATTER
of four appeals under section 120 of the Act
BETWEEN
KOTUKU PARKS LIMITED

(RMA 1655/98)
KAPITI ENVIRONMENTAL ACTION INC
(RMA 1672/98)
WAIKANAE ESTUARY GUARDIANS
(RMA 1673/98)
TE RUNANGA O ATI AWA KI WHAKARONGATAI INC
(RMA 1685/98)
Appellants
AND
THE KAPITI COAST DISTRICT COUNCIL

Respondent

Environment Commissioner IGC Kerr
Environment Commissioner J Kearney
HEARING at WELLINGTON on 4, 5, 6, and 7 October 1999, 31 January, and 1, 2, 3, 4, 7, 8, and 9
February 2000.
APPEARANCES
S L Bielby (on 4-7 October 1999), J S Ks (from 31 January 2000) and A J Beatson for Kotuku Parks
Limited
C M Stevens and K M Anderson for Kapiti Environmental Action Inc
A R Edwards and J L Topliff for the Waikanae Estuary Guardians
S Forbes and M Baker for Te Runanga O Ati Awa Ki Whangarongatai Inc
V Hamm and A Mahuika for the Kapiti Coast District Council
G Hulbert for the Minister of Conservation (in respect of Appeal RMA1655/98 only)
B Weeber for the Royal Forest and Bird Protection Society Inc
196
DECISION
preservation and protection of indigenous flora and fauna

and natural features of New Zealand, and advocating the
protection of indigenous species, their habitats and
ecosystems. Forest and Bird took part in the appeal hearing
in support of the appeals by KEA and the Guardians.
INTRODUCTION
[1] These appeals concern a proposal for subdivision
of land at the mouth of the Waikanae River for residential
development. Kotuku Parks Limited bought land there in
the 1970s, and has already completed subdivision and
development of considerable areas which are now occupied
by houses. The current proposal is called Stage IV, by
reference to a concept plan for staged subdivision of the
total area which was approved by the then Kapiti Borough
Council in 1989.
THE PROPOSAL
[8] The land proposed to be subdivided in Stage IV
contains 3.2 hectares, and lies to the south and east of the
Waikanae River and estuary. Most of that land is owned
by Kotuku Parks Limited, but the site also includes two
parcels of land owned by members of a family which has
been in occupation of it at least since the 1850s. The
proposed subdivision would create 31 lots (ranging in size
from 600 square metres to 1330 square metres) for
residential use, and four lots for road, reserve and reserve
access. The application also seeks consent for earthworks,
including borrowing about 65,000 cubic metres of
material from two areas of land to the east of the
subdivision site to build up ground level on the subdivision
site to a level equivalent to the 1-in-100 year flood level.
[2] The decisions by the Kapiti Coast District Council

which are the subject of the present appeals granted
subdivision consents and consents for the required
earthworks, and imposed conditions. By its appeal Kotuku
Parks Limited challenged certain of the conditions
imposed. By their appeals, Te Runanga O Ati Awa Ki
Whakarongatai Inc, Kapiti Environmental Action Inc, and
the Waikanae Estuary Guardians seek that the consents be
declined, or modified to substantially reduce the number
of residential lots to be created by the subdivision.
STATUS OF RESOURCE
[3] Te Runanga O Atia Awa Ki Whakarongatai

Incorporated (the Runanga) is the iwi authority for a
number of hapu who hold manawhenua over lands on the
Kapiti Coast, including the land the subject of the appeals.
The Maori people represented by the Runanga claim a
relationship with that land as ancestral land containing
waahi tapu, and a responsibility in respect of the area
generally as kaitiaki.
[9] By the District Councils operative district plan, the

subdivision site and the earthworks borrow areas are in
the Residential zone. Resource consent is required for the
subdivision and for the earthworks. Considered separately,
the subdivision would be a controlled activity, and the
earthworks a discretionary activity. There was an issue
between the parties about the status of the resource consent
application in the circumstances. Kotuku Parks Limited
contended that the application should be assessed as a
controlled activity; the District Council, KEA, the
Runanga, and Forest and Bird contended that it should be
assessed as a discretionary activity. The issue is significant
because if the application is to be assessed as a controlled
activity, consent has to be granted, and the Courts
jurisdiction is restricted to imposing conditions;1 but if it
is a discretionary activity, then the Court would have power
to refuse consent, as sought by other appellants.2 Therefore
we address that issue first.
[4] Kapiti Environmental Action Incorporated (KEA)

is an incorporated society. Its objects include preserving
and protecting the environment of the Kapiti district. It
has about 60 paid-up members.
[5] The Waikanae Estuary Guardians (the Guardians)
is an unincorporated group of about 70 people formed in
1997 to encourage appreciation of the Waikanae Estuary
and its occupants, and to lobby for their protection and
wellbeing.
[10] This issue calls for application of provisions of the

district plan, which describes various types of activity. We
quote the descriptions of permitted activity, controlled
activity and discretionary activity:
[6] The Minister of Conservation took part in the Courts

hearing of the appeals to the extent of opposing the appeal
by Kotuku Parks Limited against certain of the conditions
imposed by the District Council.
(i) A permitted activity is any activity which is

listed in the rules as a permitted activity and
which complies with all the permitted activity
standards or any activity not listed as any other
activity and which complies with all the
permitted activity standards. If the activity
[7] The Royal Forest and Bird Protection Society

Incorporated (Forest and Bird) is an incorporated society
which has around 38,000 members (the Kapiti Branch has
547 members). The objects of the society include
1
2
CONSENTS
Resource Management Act 1991, section 105(1)(a) (as substituted by section 55(1) of the Resource Management Amendment Act 1993).
Resource Management Act 1991, section 105(1)(b) (as substituted by section 55(1) of the Resource Management Amendment Act 1993, and
amended by section 22(1) of the Resource Management Amendment Act 1997 ).
197
meets all performance standards, there is no

need for a resource consent. The activity is
permitted as of right.3
(ii) A controlled activity is any activity which is
listed in the rules as a controlled activity and
which complies with the permitted activity
standards but which involves Council
specifying matters over which it reserves
control.
A resource consent is required for a controlled
activity but generally need not be publicly notified
Unless there are special circumstances, an
application for resource consent for a controlled
activity must be approved subject to the Council
exercising control over the matters specified in
the Plan.4
(iii) A discretionary activity is any activity which
is listed in the rules as a discretionary activity
and which complies with all of the
discretionary activity standards or any activity
which does not comply with any one or more
of the permitted or controlled activity
standards and is not otherwise listed as a
noncomplying activity.
A discretionary activity requires an application
for a resource consent which may or may not be
publicly notified and which may or may not be
approved. The matters to be taken into account
when deciding on an application are outlined in
section 104 of the Resource Management Act
1991. 5
(iv) SUBDIVISION
Subdivision (including boundary adjustments)
where:
Public roads, public water supply systems,

sanitary drainage systems and surface water
drainage systems are available to serve the
subdivision .
All the controlled activity standards for

subdivision are complied with (refer to
D1.2.2).
The matters over which the Council reserves
control are:
The design and layout of the subdivision

including earthworks.
The imposition of financial contributions in

accordance with Part E of this Plan.
The imposition of conditions in accordance

with Section 220 of the Resource
Management Act 1991.
7
The following are discretionary activities:
(i) All activities which are not listed as
NONCOMPLYING or PROHIBITED and all
other activities which do not comply with one
or more of the permitted activity or controlled
activity standards.
(vi) Buildings over 8 metres in height and up to

a maximum of 10 metres in height and which
comply with all the permitted and controlled
activity standards.
(vii) SUBDIVISION HIGH DENSITY
Subdivision where:
Public roads, public water supply systems,
sanitary drainage systems and surface water
drainage systems are available to serve the
subdivision .
All the discretionary activity standards for
subdivision are complied with (refer to
D.1.2.3).
8
[12] We also quote the relevant items from the
permitted activity standards and the controlled
activity standards:
[11]
The Residential zone rules identify various classes
of activity. We quote the items cited in counsels
submissions:
The following are permitted activities:
(i) One dwelling and one family flat and
accessory buildings on any lot provided they
comply with all the permitted activity
standards.
(ii) Additional dwellings on a lot (up to a
maximum of four dwellings per lot) provided
that each dwelling and overall development
meets all permitted activity standards (refer
to D.1.2.1) and controlled activity subdivision
standards (refer to D.1.2.2).
(xii)All other activities, excluding retailing, which

are not listed as CONTROLLED,
DISCRETIONARY, NONCOMPLYING or
PROHIBITED and which comply with all the
permitted activity standards.
6
The following are controlled activities, provided
they comply with the controlled activity standards:
3
4
5
6
7
8
PERMITTED ACTIVITY STANDARDS
EARTHWORKS
The following standards apply when carrying out
earthworks for any activity such as constructing
new buildings and relocating buildings, building
roads and access ways to building sites,
subdivision lots, parks and parking areas. These
standards do not apply, however, to road
maintenance activities within road reserves.
(i) Earthworks shall not be undertaken:
On slopes of more than 28 degrees.
Kapiti Coast District Plan, Part D.1.(B)(i).

Kapiti Coast District Plan, Part D.1.(B)(ii).
Kapiti Coast District Plan, Part D.1.(B)(iii).
Kapiti Coast District Plan, Rule D.1.1.1.
198
Within 20 metres of a waterbody, including

wetlands and coastal water, except cultivation
of a field and domestic gardening. This
standard shall also not apply to activities
associated with maintenance of the
watercourse or stormwater control.
(ii In any ponding area or overflow path no
earthworks shall:
involve the disturbance of more than 20 m3

(volume) of land; or
alter the existing ground level by more than

1.0 metre, measured vertically.
This standard applies whether in relation to a
particular earthwork or as a total of cumulative
earthworks.
(iii) In all other areas, no earthworks shall involve
the disturbance of more than 50 m3 (volume)
of land and shall alter the existing ground
level by more than 1.0 metre, measured
vertically.
Except that this standard shall not apply in respect
of earthworks associated with approved building
developments, subject to a building consent,
provided that the earthworks do not extend more
than 2.0 metres beyond the foundation line of the
building in any 12 month period.
A clause in the contract for any earthworks shall
contain the following:
Should a waahi tapu or other cultural site be
unearthed during earthworks the operator and/
or owner shall:
(a) cease operations;
(b) inform local iwi;
(c) inform the NZ Historic Places Trust (NZHPT)
and apply for an appropriate authority if
required;
(d) take appropriate action, after discussion with
NZHPT, Council and Tangata
Whenua, to remedy damage and /or restore
the site.
9
CONTROLLED ACTIVITY STANDARDS
SUBDIVISION
(viii) Building Sites

Each lot shall have a building site above the
estimated 1% flood event. All-weather access
should not adversely affect the flood hazard.
10
subdivision lots , is intended to apply to small-scale

activity rather than general subdivision. Counsel also
observed that subdivisions in the Kapiti Coast district
normally require substantial earthworks, in excess of 50
cubic metres.
[14] The thrust of the submissions for the respondent,
for KEA, for the Runanga, and for Forest and Bird, was
that the earthworks are a separate activity from the
subdivision, and are a discretionary activity, making the
whole proposal a discretionary activity.
[15] They contended that the control reserved over
subdivision earthworks is control over the design and
layout of the earthworks, and does not have the effect of
making subdivision earthworks a controlled activity. They
observed that the Council had not provided for subdivision
earthworks as a controlled activity; and that it had
prescribed standards for earthworks as a permitted activity,
none of which is complied with by the present proposal.
The rule describing discretionary activities includes
activities which do not comply with one or more of the
permitted activity or controlled-activity standards. They
submitted that because the earthworks do not comply with
the permitted-activity standards, they are correctly
classified as a discretionary activity.
[16] In reply to the submissions for Kotuku Parks Ltd, it
was observed that subdivision is a controlled activity
provided it complies with controlled-activity standards,
including the standard that each lot is to have a building
site above the estimated 1% flood level. However the
proposed subdivision cannot comply with that standard
without more earthworks than qualify as a permitted
activity, including earthworks in the borrow areas. Being
beyond the subdivision site, the subdivision rule does not
apply to the earthworks in those areas. If consent to those
earthworks is not upheld, the subdivision could not comply
with the controlled-activity standard and would become a
discretionary activity.
[17] Those parties also submitted that it does not follow
that because land is zoned Residential, the uses provided
for in that zone can be carried out on every part of every
parcel of land in that zone. Therefore the expectation that
subdivision of the site would involve earthworks in excess
of the permitted-activity standards does not have the effect
of treating the earthworks as part of the activity of
subdivision.
[13] Kotuku Parks Ltd contended that because the

subdivision is a controlled activity provided it complies
with the controlled activity standards, the earthworks for
that subdivision are part of the controlled activity because
the Council has reserved control over earthworks. Counsel
submitted that the general permitted-activity standard for
earthworks, which is stated to apply when carrying out
earthworks for any activity such as constructing
[18] Counsel for Kotuku Parks Ltd, Mr Ks, submitted

that the rule describing permitted, controlled and
discretionary activities is not a definition, but is provided
9 Kapiti Coast District Plan, Rule D.1.2.1,

10 Kapiti Coast District Plan, Rule D.1.1.2.
199
as a guide only. He also submitted that the introductory

words to the earthworks standards show that those
standards apply to earthworks for three classes of activity,
namely constructing new buildings, relocating buildings,
and building roads and accessways.
[24] The subdivision is not independent of the earthworks

in the borrow areas. Those earthworks are necessary to
provide filling so the subdivision can comply with the
standard about providing building sites above the 1% flood
level on each lot. 13 They are an integral part of the
subdivision project.
[19] It is correct that the provision describing the types

of land-use activity is placed under a general heading:
Guide to Part D Rules and Standards. However the
words which precede the descriptions of the types of
activity are
[25] The status of the earthworks in the borrow areas

controls the status of the activity as a whole, because there
cannot be a hybrid activity 14 . As those earthworks are a
discretionary activity, the effect is that the subdivision itself
(which would have been a controlled activity if it could
otherwise have complied with the flood-level standard)
becomes a discretionary activity too.
The following determines the type of activity in

the rules of this Plan.11
That prescriptive language, and the contents of
the succeeding descriptions of the types of activity,
show an intention that the descriptions are to be
given effect in applying the provisions of the plan.
The classes of activity are prescribed by the Act,
and it is necessary for the plan to apply them.
[26] Therefore, applying the provisions of the plan, we

hold that the proposal the subject of these appeals is to be
considered as a discretionary activity. It follows that the
scope of the Courts jurisdiction in these proceedings
enables it to grant consent and to impose conditions, or to
refuse consent. 15
[20] We have to decide on the classification of the

proposed activity in respect of the earthworks. The issue
is whether the earthworks makes the subdivision activity
a discretionary activity or a controlled activity.
PART II
[27] The resource consent applications the subject of
these proceedings have to be decided for the purpose of
the Resource Management Act as stated in section 5(1), 16
and elaborated in succeeding provisions of Part II of that
Act. We therefore address such of those provisions as are
apt to influence the decision of the applications.
[21] Even if the earthworks on the subdivision site could

be treated as part of the activity of subdivision, we do not
accept that the earthworks on the borrow areas beyond the
subdivision site can be so treated, merely because they are
to be carried out to obtain fill material for the subdivision.
The earthworks on the borrow areas are a separate activity.
Provision for wellbeing
[22] Those earthworks do not comply with the permittedactivity standards for earthworks in that they involve the
disturbance of more than 50 cubic metres by volume, and
would alter the existing ground level by more than one
metre, measured vertically. Therefore the earthworks in
the borrow areas are not a permitted activity.
[28] The meaning given to sustainable management

includes managing the use, development and protection
of natural and physical resources in a way which enables
economic, and cultural wellbeing and for their health and
safety. 17 We accept that the proposed subdivision and
development of the subdivision site for residential use
would represent management of the resources involved in
a way which enables Kotuku Parks Limited, and those who
benefit from its business activities, and purchasers of the
residential lots to be created, to provide for their social
and economic wellbeing, and for their health and safety.
Less directly, as residential development of land which
has been zoned Residential for over 20 years, in a locality
identified in the district plan for future growth, it may be
[23] The description of discretionary activity includes an

activity which does not comply with the permitted or
controlled activity standards, and is not otherwise listed
as a noncomplying activity.12 The earthworks in the borrow
areas do not comply with the permitted-activity standards
and are not listed as a noncomplying activity. We hold that
the effect of that provision of the district plan is that those
earthworks are a discretionary activity.
11
12
13
14
Kapiti Coast district plan paragraph D.1(B), p 199.

Ibid, clause (iii), p 200.
Kapiti Coast district plan, paragraph D.1.2.2(viii), p 227.
Aley v North Shore City Council [1988] NZRMA 361 (HC). The cross-boundary questions addressed in Contact Energy v Waikato Regional
Council (2000) 6 ELRNZ 1, 22 are not applicable.
15 Resource Management Act 1991, section 105(1)(b).
16 The purpose of the Act is to promote the sustainable management of natural and physical resources.
17 Resource Management Act 1991, section 5(2).
200
taken to enable the community to make similar provision,

responding to what we accept is strong demand for housing
opportunities in that locality. In those respects we find that
the proposal serves the purpose of the Act.
[35] Mr I M Prentice, a registered surveyor who had

designed the subdivision, testified that 70 % of the
subdivision site requires to be built up to the 100-year flood
level, that about 10,000 cubic metres of fill material can
be obtained within the site, and the balance from the borrow
areas. He calculated the amount of fill material required
as 51,000 cubic metres, and explained that the application
for 75,000 cubic metres was a contingency, and was the
parameter by which the Court was asked to judge the
application. He produced a plan showing two areas in the
subdivision site where the levels are proposed to be
lowered. The witness stated that his design criteria had
included retention of natural landform wherever practically
possible.
Goals of section 5(2)(a) (c)

[29] Paragraphs (a) to (c) of section 5(2) state goals to
be achieved while managing natural and physical resources
in ways and rates which enable provision for wellbeing
health and safety. The goals are stated in general language.
We can address the particular issues that they raise for these
proceedings by reference to other provisions of Part II.
We return to the application of those goals in making our
judgment on the applications.
[36] The original proposal had involved taking 19,750

cubic metres from the borrow area Cut A; and 45,000 cubic
metres from Cut B. The condition requiring that the sand
dune in Cut A is to be preserved in its natural state was
challenged by Kotuku Parks Limited, which urged that Cut
A be reduced to 15,000 cubic metres, with landscaping
and planting measures to mitigate any adverse effects. In
cross-examination Mr Prentice agreed that his revised
design of the dune at Cut A would involve modification of
the natural shape of that dune, in that it is proposed to be
lowered.
Natural character of the coastal environment

[30] By section 6, functionaries are directed to recognise
and provide for certain values as matters of national
importance. We quote the values listed in paragraph (a) of
that section:
(a)
The preservation of the natural character of the

coastal environment (including the coastal marine
area), wetlands, and lakes and rivers and their
margins, and the protection of them from
inappropriate subdivision, use and development:
[37] An environmental scientist, Mr M J Robertson, gave

the opinions that the dunes within the subdivision site have
less interesting form than others in the area, are not unique
in the district, and are of limited value compared with other
dune areas. He also gave the opinion that from a landform
perspective there would be little value in protecting specific
sand dunes on the site. The witness considered that the
foredune area identified as vulnerable is outside Stage IV.
Concerning the borrow areas, Mr Robertson observed that
they are zoned Residential, and gave the opinion that
borrow of sand from them would be achieved without
significant impact on the natural landform by avoiding
planar cuts and merging the cuts into the natural landform.
[31] There is no question but that the subdivision site,

and the borrow areas, form parts of the coastal
environment. It is not a pristine area. There is housing
development to the south and east of the subdivision site
and the borrow areas, and on higher ground to the north of
the Waikanae River mouth. The course of the river itself
has been constrained by an artificial cut, and by a groyne
or mole on the southern bank. However the subdivision
site and the borrow areas currently retain much of their
natural sand-dune landform.
[32] It was the case for Kotuku Parks Limited that the
design of the subdivision development incorporates some
recognition of, and provision for preserving the natural
dune-form character of the subdivision site, by retaining
at least some of the form of the most prominent dune on
that site.
[38] A landscape architect, Mr G C Lister, testified that

the dunes on the site that would be levelled are relatively
small and likely to be visually overwhelmed within any
conventional residential development. The reasons he gave
for his opinion that the proposed subdivision is appropriate
included that the natural character of the site is already
modified by the adjacent development, and that the
proposal and the conditions of consent reduce the inevitable
effects on natural character.
[33] The conditions imposed by the respondent required

redesign to allow for the retention of the dune formation
within Lots 140 to 144 in its current natural state, and
required that a sand dune in the borrow area referred to as
Cut A is to be preserved in its natural state.
[39] Mr Lister gave the opinion that low-density housing,

with building platforms among the existing landforms,
would still require substantial modification of the dunes
to provide a road into the site, and the effectiveness of that
approach would be compromised by the surrounding
conventional subdivision. He supported the Council
conditions for retention of the dune landform within Lots
141 to 144, and in Cut A.
[34] In cross-examination the Chairman of Kotuku Parks

Limited, Mr A A Fraser, agreed that the volume of fill
material to be taken from the borrow areas and imported
to the subdivision site would be about 65,000 cubic metres,
and that the most significant dune would be lowered in
height from 9 metres to 6 metres.
201
[40] In cross-examination Mr Lister agreed that the dunes

are very important in defining the natural character of the
site, and are its main feature. He agreed that the natural
character is highly sensitive to change, and that the
proposed flattening would be a complete antithesis of the
natural character. The witness also agreed that the
development would compromise the natural character of
the subdivision site, so that it would be irreversibly lost,
but considered that the development would be appropriate
because of the zoning and the adjacent development. The
dune to be retained would be a remnant of the dune system,
and would be diluted by the subdivision. He also agreed
that the foredunes within the site are the last remaining
ones on that coast for a considerable distance to the north
and to the south.
the modification of the face of the dune would be

insignificant in the context of the whole feature.
[44] A District Council Senior Resource Consents
Planner, Mr D A Rodie, deposed that the dunes within the
subdivision and borrow sites are prominent landscape
features within the area, and represent a substantial part of
the remaining small number of natural dune formations
that adjoin the Waikanae Estuary Scientific Reserve and
add to the natural character of the area. He also deposed
that the proposed lowering of the existing sand dunes, and
the filling of low-lying areas in the subdivision site, would
substantially alter the existing landform, although he
considered that some alteration of the landform was to be
expected, and the natural character compromised in any
case.
[41] A planning consultant, Ms S J Allan, testified that

the highest of the dunes on the site reaches 9 metres, other
dunes reach 6 metres in height, and the average elevation
is about 3 metres. She gave the opinions that the dune forms
are not unusual or particularly interesting in a landform or
geomorphological sense, are not performing a protective
function, and that the dune landform itself is not worthy
of protection. The witness also described the closest of the
borrow areas as hummocky, and stated that the main area
chosen for the borrow is the highest dune in the vicinity.
She gave the opinion that it has no particular merit as a
landform, and appeared to have been borrowed from in
the past.
[45] On the borrow areas, Mr Rodie gave the opinion

that lowering the ground level at Cut A would create
unacceptable adverse effects on the natural character of
the adjoining oxbow. He supported the Council condition
requiring that the sand dune at Cut A be preserved in its
natural state, and that the dune at Cut B is not to be lowered
further than the 9-metre contour.
[46] Another Senior Resource Consents Planner for the
District Council, Mr C R Thomson, deposed that the
existing dunes within the subdivision site represent a
substantial part of the small number of natural dune
formations remaining on the margins of the Waikanae
Estuary Scientific Reserve, and contribute to the natural
character of the area. He agreed that the dunes are a
significant natural element of the site, and to some extent
contribute to the natural character of the adjoining reserve.
Mr Thomson gave the opinion that lowering the existing
sand dunes and filling of low-lying areas within the
subdivision site would substantially alter the existing
landform. In cross-examination, he agreed that in terms of
change to the land contour, the revised design for the works
in Lots 141-144 would retain a significant portion of the
dune.
[42] Ms Allan deposed that substantial cuts are required

to provide suitable grades for the access road through a
dune at the entrance to the site, that other cuts are proposed
to reduce the highest dunes on the site to provide more
regular contours for building, and other parts are to be made
more regular by minor areas of cut and fill. The witness
stated that the overall effect of the proposed earthworks
would be that the maximum height of the tallest dune on
the site would be reduced from 9 metres to 6 metres,
involving cuts of up to 4 metres in depth; and that fill depths
generally would not exceed 1.5 metres, but in limited areas
would be up to 2 metres. Ms Allan acknowledged that this
smoothing process would alter existing landforms, and
gave the opinions that without disturbance of the natural
contour, the zoned purpose of residential subdivision and
development could not be achieved, and that the ability to
retain natural character through a residential subdivision
development in land of that type is very limited.
[47] On the borrow areas, Mr Thomson acknowledged

that they are significant landforms. He testified that the
oxbow is an outstanding natural feature, and that the dune
adjoining it has significant value. He considered that the
proposed earthworks in that dune (Cut A) were not
acceptable because of their proximity to the oxbow feature,
and potential effects on landscape and amenity values. In
cross-examination Mr Thomson accepted that the revised
proposal for those earthworks was a significant
improvement, depending on how that land is subsequently
developed. He also testified that the earthworks at Cut B
would result in alteration of the ground level of up to 12
metres, and gave the opinion that although the earthworks
would impact on the landform the effects would not be
significant because of other dunes of similar size, and
retention of a natural dune shape.
[43] In cross-examination, Ms Allan agreed that the

landform of every allotment on the subdivision would be
modified by cut and/or fill. She gave the opinions that
where land is zoned for residential or other urban use, it
becomes a matter of balance and compromise between
retaining aspects of landform and allowing for residential
development; and development would have to be at
extremely low density to retain the natural character of
the landform. Of the borrow area near an oxbow of the
Waikanae River (Cut A), Ms Allan gave the opinion that
202
[48] A consulting landscape architect, Mr J R Hudson,

gave the opinion that in considering the natural character
of the coastal environment, the estuary and the surrounding
dune formation are inextricably linked. He considered that
the estuary saltmarsh (to the north of the subdivision site)
is the dominant natural feature, and that it is dependent on
its context for its degree of natural character; and the
subdivision site makes a significant contribution to the
natural character of the area.
[53] In his evidence Mr Boffa gave the opinions that the

proposed Stage IV development would completely modify
the dunes to the extent that the foredune system would
largely be lost; and that the development would be quite
inappropriate and out of character with the natural character
of this important and significant coastal landscape. The
loss of natural character would be considerable, and would
tip the balance of the character values of the estuary away
from a predominance of natural character values to a
predominantly suburban-like character.
[49] In answer to questions by Mr Stevens, Mr Hudson

deposed that the dunes on the subdivision site are a
dominant feature of the site, and are the last foredunes not
levelled by development in the immediate vicinity of the
Waikanae River mouth. He agreed that the site warrants
sensitive development, and that the proposed smoothing
of the landform of the subdivision site is not a sensitive
approach to development of the site, and is inappropriate.
Mr Hudson also agreed that the conditions would not avoid
or remedy adverse effects of the proposal. In crossexamination by Mr Ks, the witness agreed that the existing
residential setting detracts from the high natural character
of the area.
[54] We have summarised the evidence bearing on the

extent to which the project would serve the values
described in section 6(a). Our understanding of the
evidence was enhanced by our observations in visiting the
site and its environs in company with representatives of
the parties. We now set out the findings which we make
on this issue on the basis of that evidence.
[55] The subdivision site and the borrow areas are not in
their pristine states. Even so, they still possess considerable
natural character. Their contribution to the natural character
of the coastal environment is enhanced by two features.
The first is the proximity of the sites to the Waikanae River
Estuary: the subdivision site being close to the mouth and
the adjacent saltmarsh in the scientific reserve; and the
borrow area called Cut A being close to the oxbow feature.
The second is that the sand-dune landform of the sites is a
remnant of the landform which once characterised the
Kapiti coast, most of which has been destroyed.
[50] A resource management consultant, Mr A A Aburn,

gave these opinions on the topic:
the foredune complex is a very important and significant
feature of the natural landform and an essential element in
the coastal environment. 18
it is one of the few remaining sites on this section of the
Kapiti Coast with unmodified coastal dunes.19
[56] The project involves earthworks which include

cutting earth from the borrow areas, moving earth within
the subdivision site, filling low-lying areas by up to 2
metres, and (with the exception of retaining some of the
form of the dune in Lots 140 to 144, which would be
reduced in height from 9 metres to 6 metres) creating a
generally smooth slope on the surface of the subdivision
site at a level of about 4 metres in place of the naturally
undulating dunes which reach up to 9 metres. The total
amount of earth to be moved would be between 51,000
cubic metres and 75,000 cubic metres. The amount of
material to be removed from Cut A would be 15,000 cubic
metres, and the amount from Cut B would be 45,000 cubic
metres. The removal of material from those areas would
modify their natural forms.
Given the magnitude of the proposed earthworks, if the

general landform is not completely lost it is very
substantially lost. Indeed, in my opinion the natural
character of the foredune complex is completely lost.20
[51] In cross-examination by Mr Ks, Mr Aburn agreed
that any form of residential development of that land would
be likely to result in some alteration to the natural landform.
[52] Mr F Boffa, another landscape architect, testified
that the coastal dunes of the Waikanae River estuary are
landforms that are an integral component of the coastal
environment; that the site displays a high level of natural
character; and that earlier stages of the development had
eliminated all evidence of the characteristic dune landscape
adjacent to the Waikanae River estuary. He observed that
natural character embraces more than appearance of natural
elements, and is also concerned with natural patterns and
processes.
[57] We find that earthworks of that extent conflict with

the preservation of the natural character of the coastal
environment. The conditions requiring retention of the
forms of the dune in Lots 140 to 144, and the dune at Cut
A would not be an adequate mitigation, as the works would
necessarily change their forms and scale. Overall the
18 Statement of evidence, paragraph 8.27, p 24.

19 Ibid, paragraph 8.41, p27.
20 Ibid, paragraph 4.6, p 6.
203
natural sand-dune character of the sites would be changed

for ever, and their contribution to the coastal environment
would be lost.
prominent than existing houses on the south-east and southwest perimeter of the reserve, because low dunes in the
estuary reserve would partly screen the housing,
particularly from the northern part of the reserve, and there
would be a margin of shrubland between the subdivision
and the estuary itself. He affirmed that the dune features
in the subdivision site are not outstanding features or
outstanding landscapes.
[58] Because the landform of the sites contributes so

much to the natural character of the coastal environment,
and is among the last representatives of it in the district, it
is our judgment that the development is inappropriate in
that respect. Whether it is justified by the longstanding
and current Residential zoning of the land and by the
creation of the scientific reserve, are questions to be
considered in the overall judgement of the applications.
[64] In cross-examination Mr Lister agreed that the

adjoining outstanding landscape has to be seen in context,
and that the context for the outstanding landscape includes
the Stage 4 site and the remainder of the perimeter of the
estuary. The witness also agreed that the compromise of
the natural character of the site should be considered in
the context of the estuary being an outstanding landscape.
Further he agreed that the proposal had not been designed
in sympathy or harmony with its neighbour.
Outstanding features and landscapes

[59] We now address the values listed in paragraph (b)
of section 6:
(b) The protection of outstanding natural features
and landscapes from inappropriate
subdivision, use, and development:
[65] Mr Hudson agreed that from a visual perspective

the site is sensitive to change, and warrants sensitive
development. He accepted that the design of the
subdivision development is not sensitive, that the proposal
is inappropriate, and that it would be possible to design a
more sensitive subdivision development of the site. Asked
about the revised design for the borrow area, Mr Hudson
would not agree that from a visual perspective, viewed
across the oxbow, the effect of the removal of material
from Cut A would be no more than minor.
[60] Our understanding of the meaning to be given to

the adjective outstanding is that to qualify, a feature or
landscape would need to be quite out of the ordinary on a
national basis, and calls for a comparison with other
features or landscapes.21
[61] Kotuku Parks Ltd contended that the subdivision site
itself is not an outstanding natural feature or landscape
(not being identified as such in the district plan), and
although it accepted that the wider context is relevant, it
contested that the proposal would impact on the
surrounding landscape because of the influence of existing
housing. The District Council submitted that the site is
not outstanding, and that the development would not
compromise the adjoining landscape and would not be
inappropriate. However the Guardians submitted that the
proposal does not provide for the values referred to in
section 6(b), and the Runanga submitted that the site is an
important cultural landscape.
[66] Mr Boffa deposed that visually, from most vantage

points, the site is seen as an integral part of the Waikanae
River estuary landscape; that the dunes on the Stage IV
site are visually important in the context of the wider
estuary landscape; and that the proposal would appear as
a spur of development intruding into the estuary landscape.
He considered it anomalous that the site is not identified
in the district plan as an outstanding landscape; and
remarked that the development makes no attempt to protect
outstanding or significant landscapes.
[67] On the evidence we are not able to find that the
proposal involves subdivision and development of
outstanding natural features or landscapes.
[62] We have already summarised the evidence about the

natural sand-dune features of the site. There is no evidence
that they qualify as outstanding natural features. We focus
on the evidence bearing on whether the subdivision
development would be inconsistent with protecting an
outstanding landscape.
Indigenous vegetation and fauna habitats

[68] Next we consider the values listed in paragraph (c)
of section 6:
[63] Mr Lister described the site as a remnant piece of

rural landscape, lying adjacent to the Waikanae River
estuary, which is a significant landscape. He gave the
opinion that the houses in the subdivision would be less
(c)
The protection of areas of significant

indigenous vegetation and significant habitats
of indigenous fauna:
21 Application for a Water Conservation Order in respect of the Mohaka River (Planning Tribunal Decision W20/92), page 49.
204
[69] Kotuku Parks Ltd asserted that the subdivision site

contains no significant indigenous vegetation, and that a
proposed purpose-built fence, and other proposed
conditions, satisfied the Department of Conservation
concerns about the flora and fauna of the adjacent scientific
reserve in the estuary. It contended that the defined extent
of the scientific reserve must be taken to incorporate its
own buffer zone. The company also contended that the
site itself is not a significant bird habitat, and that the
development (especially the proposed fence, and gates to
prevent vehicle access to the estuary) would be beneficial
for bird life on the estuary and beach.
cross-examination Ms Allan stated that she did know of

other areas of the Wellington region where residents look
after nearby coastal reserve.
[74] Mr I E Cooksley, a Department of Conservation
official responsible for management of the Waikanae
Estuary Scientific Reserve, deposed that disturbance to
birdlife, especially during nesting, is a problem that the
Department will try and address with existing and future
tracking. He considered that the proposed fencing, signage
and education would assist. In cross-examination he
accepted that the reserve is a nationally significant habitat
for various species of birds, some of which are classified
as threatened, and could be threatened by dogs, cats and
other feral animals. He also agreed that dogs in the reserve,
not on leads, are a major difficulty.
[70] Forest and Bird asserted that the adjacent scientific

reserve is an area of significant indigenous vegetation and
significant habitat of indigenous flora, being a nationally
significant wetland habitat for waders, seabirds and
waterfowl, some of which are nationally threatened species.
It maintained that these birds would be at risk from dogs
and cats from the proposed subdivision. Forest and Bird
and KEA contended that the more intense the development,
the greater the threat to birds inhabiting the estuary and
beach from cats and dogs. The Runanga generally
concurred with those claims.
[75] Dr G N Park, an ecological consultant with particular

professional experience of the Waikanae Estuary, deposed
that the subdivision site is in intimate ecological association
with the wetland in the scientific reserve. He testified that
a few native vegetation species are present in the high stable
backdunes (referring to flax, toetoe, karamu and manuka);
but other than some old cabbage trees, no native growth
survives around the dune lakes. Within the scientific
reserve he reported spinifex in the low foredunes, taupata
in the high foredune that abuts the estuary, flax and toetoe
dominating the wetlands, salt-meadow in the tidal sandflats, and raupo, pukio sedge, and harakeke and toetoe in
the estuarine wetlands. Dr Park described the subdivision
site as being part of a coastal system without peer in
ecological quality terms on the entire south-west North
Island coast. He stated that the coastal ecosystem is largely
within the scientific reserve, a nationally significant place
as a wader bird habitat.
[71] An environmental consultant with specific

knowledge of the Waikanae Estuary, Mr P C Kennedy,
deposed to there being spinifex on the dunes, native
vegetation close to the estuary and oxbow and behind the
sand flats, and a dune lakelet dominated by raupo. He
referred to the estuary as a wetland of national importance,
used for roosting, breeding and feeding by wrybill, eastern
bar-tailed godwits, turnstone, knot, banded dotterel and
variable oystercatcher. Mr Kennedy gave the opinions that
the proposed construction works would not result in loss
of any ecological resources of note, and would not have
any direct effect on the scientific reserve. He testified that
the subdivision development would result in some
restriction in the movement of people into the estuary, and
gave the opinion that with education and signage the
additional dwellings would not result in an increased level
of disturbance to birds in the estuary by pets.
[76] A zoologist with considerable experience of the bird

habitats of the Waikanae Estuary, Mr A J Tennyson,
described 64 native species of bird he had observed there,
and deposed that 15 of them are threatened with extinction.
Of them, variable oystercatchers and banded dotterel are
known to breed at the Waikanae Estuary. The witness also
testified that the estuary is an important stopover for
indigenous wading birds which are migrating. He gave
reasons for his opinion (which was not challenged) that
the Waikanae Estuary is one of the most significant
estuarine habitats for native birds in the lower North Island,
and one of the best opportunities to conserve threatened
species and to preserve the more common wetland birds
representative of the region.
[72] In cross-examination Mr Kennedy agreed that

ecologically the estuary is very important; and that light
development would have less potential risk for the
resources of the estuary than intense development, even
with education, signage and limited access. He confirmed
to the Bench that the estuary is significant for its biological
resources (referring particularly to bird species) and from
the scientific and educational point of view.
[77] Mr Tennyson gave the opinion that the increasing

number of people living close to the estuary has meant
that there are more horse riders, motorbike riders and
domestic pets in the estuary reserve. He reported having
seen evidence of white-fronted terns having been killed
by cat or mustelid, and eggs of wading birds having
disappeared overnight from otherwise undisturbed nests.
The witness observed that the subdivision site is adjacent
[73] Ms Allan gave the opinions that protection of the

significant wetlands adjacent to the site is assured through
its identification and zoning in the district plan; and that
the significant native vegetation in the ecological area (saltmarsh and dune vegetation) would not be adversely
affected by the subdivision. She considered that future
residents might assist with caretaking of the reserve. In
205
to the least developed and most isolated and remote part

of the estuary, and gave the opinion that increased human
disturbance is likely to have serious impacts on the ability
of birds to survive and breed there.
contended that it has to be exercised in accordance with

tikanga Maori, by which substantial decisions are only
made following hapu and iwi marae hui.
[85] Evidence on these topics was given by Mrs FTK
Goodman (who was called on behalf of Kotuku Parks
Limited) and Mr M Baker (who was called on behalf of Te
Runanga).
[78] On that evidence we find that the Waikanae Estuary

is a significant habitat of indigenous fauna; that the
indigenous vegetation there is a necessary part of that
habitat, and that the proposed subdivision development
would not be consistent with the national importance
ascribed to protection of significant habitats of indigenous
fauna.
[86] Mrs Goodman explained the succession of

ownership of the piece of the site which she currently owns,
and deposed that she and her aunt (Mrs Gayle Lopdell,
owner of another piece of the subdivision site) considered
themselves to be tangata whenua in the immediate area.
She confirmed that they are from Te Ati Awa. In full
consideration of all implications, including the familys
long association with the land, and Maori issues, they had
reached agreement with Kotuku Parks Ltd for their land
to be included in the development, and were happy for it
to proceed in the form proposed. Mrs Goodman testified
that she was not aware of any wider issues, such as waahi
tapu or other historic associations, which were contrary to
the proposal proceeding.
MAORI RELATIONSHIPS AND KAITIAKITANGA

[79] By section 6(e), functionaries are directed to
recognise and provide for the following as a matter
of natural importance:
(e) The relationship of Maori and their culture and
traditions with their ancestral lands, water, sites,
waahi tapu, and other taonga.
[80] Section 7(a) requires attention to a related matter:
[87] Mr Baker is Tumuaki of Te Runanga, which he

described as the iwi authority for the hapu that comprise
Te Ati Awa ki Whakarongatai. He testified that the
Waikanae River is a central feature in the tribal lands, and
produced numerous exhibits as evidence for kaitiaki
connection to the place, river and estuary. He deposed that
although they no longer own the land, tangata whenua still
have a demonstrable relationship with the area, in that it
has profound landscape and cultural associations, including
sites of ancestral occupation and of battles and burials
(which remain as waahi tapu). The witness also claimed
that their ability to be kaitiaki for the river and coastal
environment would be adversely affected. He explained
that the scale and nature of the development would have a
profound effect on the ecological integrity, natural
character and intrinsic values of the area for which they
are kaitiaki, to safeguard its wairua and mauri for future
generations. Mr Baker testified that the site of the Stage
IV subdivision contained old river paths, and places of
ancient ancestral occupation.
In achieving the purpose of this Act, all persons exercising

functions and powers under it, in relation to managing
physical resources, shall have particular regard to (a)Kaitiakitanga:
[81] In these respects it was the case for Kotuku Parks

Ltd that the Goodman family are tangata whenua of the
subject land, based on long and close association with the
site and the Waikanae Estuary, and that they exercise
kaitiakitanga over the area. They support the project (which
includes land owned by members of the family). Kotuku
Parks Ltd contended that the views of that whanau should
be given primary weight.
[82] Kotuku Parks Ltd informed the Court that it had
voluntarily protected known urupa on its land (near the
Stage IV site), and that a full archaeological survey carried
out of the site had discovered no significant sites or other
values. It maintained that kaitiakitanga is addressed by
involvement of the Goodman whanau in the project.
[88] The conditions imposed by the District Council

included Condition 39 which required the developer to
notify representatives of tangata whenua, including
Kapakapanui, at least 72 hours prior to commencement of
earthworks, and to advise the District Council of the
archaeologist to monitor the works. That condition was
accepted by Kotuku Parks Limited. The advocate for Te
Runanga, Ms Forbes, did not challenge or contradict the
contention by counsel for Kotuku Parks Ltd that Te
Runanga had advised it prior to the appeal hearing that it
was satisfied with those conditions, and that archaeological
concerns would not be raised at the appeal hearing. Ms
Forbes stated Te Runangas satisfaction that compliance
with the conditions imposed on authority granted by the
[83] It was also the District Councils case that the

Goodman whanau are tangata whenua, and claim mana
whenua over the land.
[84] Te Runanga did not seek to contest in this forum the
question who has mana whenua. It asserted that its hapu
have lived in that place since about 1818, and many tribes
before them; and that the estuary area in general has special
associations for the iwi and hapu of Te Ati Awa. Te Runanga
also submitted that kaitiakitanga had been misinterpreted
by Kotuku Parks Ltd and the District Council, and
206
Historic Places Trust for the earthworks would satisfy Te

Runangas aspirations for protection of heritage values.
Mr Baker did not identify any waahi tapu on the subdivision
or borrow area sites with any particularity that might enable
verification or otherwise by advisers to Kotuku Parks Ltd
or the District Council, and lead to a reliable finding in
that regard.
[94] It was Te Runangas case that the District Council

had not consulted adequately with it over Kotuku Parks
Limiteds Stage IV project, and Te Runanga had been
prejudicially affected. In particular it claimed that the
District Councils consultation with Te Runanga had been
limited to matters contained in the archaeological
assessment, and had not extended to resource management
issues. Te Runanga submitted that the consent authority,
as an agency exercising functions and powers under the
Act, has a duty to consult, and a duty to provide for active
protection.
[89] It is our understanding that neither section 6(e) nor

section 7(a) calls for a consent authority (or the Court on
appeal) to make any decision about ownership of land,
about the extent of the rohe of any iwi or hapu, about who
are tangata whenua, or who are kaitiaki, in respect of a
particular site or area.22 We decline to attempt any finding
on any of those points in respect of the subject sites.
[95] It was the case for Kotuku Parks Ltd that it had
consulted the whanau whose land comprises part of the
subdivision site; that the whanau had indicated that it held
mana whenua over the land; and that under Maori protocol
the whanau could, if they wished, involve other iwi such
as Te Runanga, but that they did not wish to do so. It was
also the companys case that during a six-month
adjournment of the primary hearing, it had met with Te
Runanga at Waikanae Marae; and that after the primary
decision had been given there had been a further meeting
of representatives of Te Runanga and the applicant, and
subsequent communications between them.
[90] Considering the subject of section 6(e), the evidence

establishes that Maori (including the Goodman whanau,
and other people of Te Ati Awa) have cultural and
traditional relationships with the subdivision site and its
environs, that those are ancestral lands of theirs, and that
the sites and their environs are places of past occupation
by their ancestors. The evidence is not sufficient to enable
us to find that there are burial sites or specific waahi tapu
or taonga within the sites of the Stage IV subdivision or
the borrow areas. In our judgment, Condition 39 is an
adequate response in the circumstances.
[96] The District Council reminded us that its hearing

committee had adjourned the primary hearing partly to
allow the applicant to carry out further consultation with
Te Runanga; and that the hearing committee had been made
aware of Te Runangas views about the project and took
them into account, as well as those of the Goodman
whanau, in determining the application.
[91] The evidence also establishes that the subdivision

site is the subject of kaitiakitanga. The Goodman family
claim to be kaitiaki, and so do Te Runanga. There was no
specific evidence about how the whanau or Te Runanga
have been accustomed to exercise kaitiakitanga in respect
of the sites in the recent past. However we accept that if
the proposed development occurs, it would inevitably limit
the capacity for exercise of kaitiakitanga in respect of
safeguarding the wairua and mauri of the sand dunes, and
their association with past occupation by their ancestors.
[97] We do not accept that a regional or district council,

acting in its capacity as consent authority under the
Resource Management Act to hear and decide a resource
consent application, itself has a duty to consult with Maori.
The general language of section 8 directs a consent
authority to take into account the principles of the Treaty
of Waitangi. It does not impose on a consent authority the
duties of the Crown under the Treaty. The Resource
Management Act 1991 contains clear directions about the
duty of consent authorities in regard to notification of
resource consent applications. It would not be consistent
with those specific provisions to impute to a consent
authority an additional duty to consult with Maori. Nor
would it be consistent with the quasi-judicial role of a
consent authority that it should itself consult with Maori,
who may end up as submitters in opposition to the
application which it has to decide.
TREATY OF WAITANGI PRINCIPLES

[92] Section 8 of the Resource Management Act
provides
In achieving the purpose of this Act, all persons exercising
functions and powers under it, in relation to managing
physical resources, shall take into account the principles
of the Treaty of Waitangi (Te Tiriti o Waitangi).
[93] It is well established that a principle of the Treaty

requires consultation with Maori in respect of projects that
may affect their cultural interests.23 A consent authority
has to take those principles into account in reaching its
decision.
[98] Our understanding of the consent authoritys duty

to take into account the consultation principle of the Treaty
is that it should be on enquiry that there has been
22 See Winter v Taranaki Regional Council Environment Court Decision A106/98.

23 NZ Maori Council v Attorney General [1989] 2 NZLR (CA) 42, 52.
207
consultation where that is appropriate. In that respect, a

report to the consent authority on the resource consent
application by officials or consultants of the Council should
address that issue. However consultation is not an end in
itself, but a way of taking relevant principles of the Treaty
into account.24 In practice, it is the applicant who will need
to consult with Maori, in cases where that is appropriate,
to avoid the risk of the application being postponed 25 or
refused by the consent authority if it is not satisfied that
grant of the resource consent would be consistent with its
duty to take into account the principles of the Treaty.
plan in place, they were not open to consultation, and he

observed that it would be difficult to progress discussions
without an indicative proposal. He had concluded that the
aspirations for the site of Kotuku Parks Ltd and
Kapakapanui were basically incompatible.
[103] Mr Rodie testified that after the applications were
received, the District Council had asked Kotuku Parks Ltd
to consult with Kapakapanui. Kotuku Parks Ltd had
expressed the belief that it would be appropriate to consult
with the Goodman whanau, and had presented a letter from
Mrs Goodman stating their claim to have manawhenua,
that they had no concerns about the development, and that
they had chosen not to involve iwi in matters relevant to
this development. Mr Rodie also reported that the Councils
hearing committee had adjourned the hearing of the
resource consent applications to enable completion of the
archaeological report and consultation with Kapakapanui
in relation to it. After that, the committee had found that
adequate consultation had taken place. In crossexamination Mr Rodie deposed that none of the Council
staff had met with Te Runanga over the proposal.
[99] This understanding of the way section 8 applies in

practice to consent authorities hearing and deciding
resource consent applications is, we believe, consistent
with the approach adopted by the Planning Tribunal in a
number of decisions when the question first arose.26
[100] Mr Baker testified that the Runanga had not been
consulted by the District Council staff, and that the only
discussions that happened were in the meeting that
occurred during the adjournment of the primary hearing,
not during the assessment of environmental effects stage.
He added that the adjournment meeting revealed that the
applicant had no expectation of modifying their proposal
or discussing the environmental effects of the subdivision
and earthworks. He urged that the Council, having
identified that the applicant did not wish to consult with
the iwi authority, should have discussed the application
with the Runanga. He regretted that no opportunity had
been given to discuss options for avoiding sites and
protecting heritage and ecological feature during the
application stage.
[104] Mr Rodies colleague, Mr Thomson, confirmed that

evidence, and gave the opinion that consultation had taken
place to the extent that the views of tangata whenua on the
proposed development were known in sufficient detail for
the Council to make a decision taking those views into
account. In cross-examination he agreed that the applicant
had not consulted with Te Runanga before the initial
hearing, nor had the Council. Mr Thomson also gave the
opinion that if an applicant chooses not to consult Maori,
Council staff have to seek information from them. He
explained that at the time the Councils practice in that
regard had been evolving.
[101] Mr Fraser gave evidence that Kotuku Parks Ltd had

had various communications with Kapakapanui (the
environment and heritage arm of Te Runanga), and that
Mrs Goodman had indicated that her whanau did not wish
to involve the iwi. The witness reported that at the meeting
during the adjournment, and at a later meeting,
Kakakapanui had indicated that from their perspective the
subdivision density was too high, but no specific proposal
had been put forward except in the broadest sense to reduce
the number of lots to about four.
[105] Initially Kotuku Parks Ltd had consulted with the

Goodman whanau, who discouraged consultation with Te
Runanga. However two pieces of land included in the
subdivision site are owned by members of the Goodman
whanau, who stand to gain from the subdivision
development proceeding. That could have been a
disincentive to their raising with Kotuku Parks Ltd any
Maori cultural issues about the development. Having been
asked by the Council to consult with Te Runanga, for
Kotuku Parks Ltd to confine its consultation to the whanau,
who were virtually co-proponents of the subdivision, was
not adequate to enable the Council to take into account
the principles of the Treaty as required by section 8.
[102] Mr Fraser deposed that Kotuku Parks Ltd had been

prepared to listen to Kapakapanuis concerns; that Kotuku
Parks were open-minded, although working to an existing
concept plan; that there had been plenty of time for
discussions; but they did not receive sufficiently detailed
feedback to choose an alternative. He understood that
Kapakapanui had felt that, because there was a concept
[106] We understand Mr Frasers point that ultimately it

turned out that the aspirations of Kotuku Parks Ltd and Te
24 Tangiora v Wairoa District Council Environment Court Decision A6/98.

25 See eg Purnell v Waikato Regional Council Environment Court Decision A85/96; Marlborough Seafoods v Marlborough District Council
Environment Court Decision W12/98.
26 See Ngatiwai Trust Board v Whangarei District Council Decision A7/94; Hanton v Auckland City Council Decision A10/94; Whakarewarewa
Village v Rotorua District Council Decision W61/94, and Mangakahia Maori Komiti v Northland Regional Council Decision A107/95.
208
following:
(a) Rules in the district plan:
(b) Conditions of a resource consent, either generally
or pursuant to section 220(1)(d):
(c) Other matters, including works.
Runanga for the site were so far apart that agreement could
not be reached. We also accept that Kotuku Parks Ltd
needed to have a concept to be the subject of consultation.
Even so, by the time the applications had been notified
and submissions received, the best opportunity for truly
fruitful consultation had passed. Greater gain may be
expected from consultation before the concept has been
developed to the stage necessary to define a resource
consent application. For those reasons the consultation that
occurred during the adjournment of the primary hearing
could not have had the same quality as consultation prior
to lodging the resource consent applications.
[110] It was the case for the Waikanae Estuary Guardians

that the land proposed to be subdivided, and future houses
on that land, are or are likely to be subject to material
damage by subsidence induced by earthquake, and by
inundation and erosion from the sea in conditions of storm
surge, tsunami, and sea-level rise. The Guardians called
Mr A R Edwards and Dr J R Goff to give evidence on
those topics. Evidence to the contrary was given by Mr R
B OCallaghan, called on behalf of Kotuku Parks Limited.
[107] Evidently the hearings committee was not satisfied

with the consultation that had occurred, and asked for more
during the period of the adjournment. That later
consultation, by being focused on (if not confined to) the
archaeological report, did not address Te Runangas
concerns in other respects.
[111] Mr Edwards is a senior geologist. He gave evidence

that the Kapiti coast plain has in geologically-recent time
suffered at least two catastrophic episodes of coastal
erosion; that the present foreland is likely to be geologically
ephemeral; and that the probability of another great
catastrophe occurring in this area in the geologically-near
future is high. He urged a precautionary approach to
ongoing urbanisation of the Kapiti District coastline.
[108] Taking those three weaknesses in combination, we

find that the consultation with tangata whenua was not
sufficient to enable the primary consent authority to be
confident that it had the understanding necessary to take
into account the relevant principles of the Treaty in
deciding the resource consent applications. However we
acknowledge that the Court has had the benefit of Te
Runangas case presented at the de novo hearing of the
applications on these appeals, so this Court is able to take
their concerns into account.
RESTRICTION
[112] In cross-examination, Mr Edwards agreed that there

is no peer-reviewed and published material supporting his
opinions. He accepted that the dunes adjacent to the site
have been subject to progradation since about 1950, and
that the scale of catastrophe he anticipated would have
effects along the entire Kapiti coast. He also stated that by
the geologically-near future, he meant a period of hundreds
of years.
ON SUBDIVISION CONSENT
[109] Section 106 of the Act restricts subdivision consent

in certain circumstances. We quote the section:27
[113] Dr Goff is a scientist specialising in Quaternary

geology, physical coastal processes, geohazards and coastal
management studies. He gave evidence that there have been
at least six catastrophic saltwater inundations of the Kapiti
Coast in the past 5300 years. Dr Goff reported some
evidence of wave heights of between at least 6 to 11 metres
above sea level, and of two metres in a tsunami in 1855
AD. He gave the opinion that events of that scale in this
region have a return period of at least one every 250 years,
and larger catastrophic saltwater inundation events about
one every 400 years.
106. Subdivision consent not to be granted in certain

circumstances (1) A consent authority shall not grant
a subdivision consent if it considers that either
(a) Any land in respect of which a consent is
sought, or any structure on that land, is or is
likely to be subject to material damage by
erosion, falling debris, subsidence, slippage,
or inundation from any source; or
(b) Any subsequent use that is likely to be made
of the land is likely to accelerate, worsen, or
result in material damage to that land, other
land, or structure, by erosion, falling debris,
subsidence, slippage, or inundation from any
source
unless the consent authority is satisfied that
sufficient provision has been made or will
be made in accordance with subsection (2).
(2) A consent authority may grant a subdivision
consent if it is satisfied that the effects
described in subsection (1) will be avoided,
remedied, or mitigated by one or more of the
[114] Asked in cross-examination about a Wellington

Regional Council assessment of tsunami risk, Dr Goff
responded that this assessment had been based on
information that did not include recent work on which he
had based his evidence. He did not accept that Kapiti Island
would protect the Kapiti coast from a tsunami parallel or
sub-parallel to the coast. The warning of a locally generated
tsunami would be only between 20 and 2 minutes. He also
gave the opinion that the site, being in an estuary by the
27 Section 106 as amended by section 56 of the Resource Management Amendment Act 1993.
209
side of a river, would be more susceptible to tsunami.
REQUIRED
[115] Mr OCallaghan is a consulting civil engineer with

a post-graduate qualification in hydraulics and coastal
engineering. He had assessed safe building levels for the
proposed subdivision based on achieving the minimum
level required for protection from flooding from the
Waikanae River and the sea. Mr OCallaghan had
considered two cases. The first was a 1% annual probability
flood-event in the river coinciding with a 5% annual
probability storm sea-surge event (including a 200millimetre allowance for future sea-level rise). The second
was a 1% annual probability storm sea-surge event, with a
similar allowance for future sea-level rise. It was on
consideration of those cases that he had adopted the
minimum building platform level of 3.4 metres RL on
which the subdivision development had been designed.
That allowed a freeboard for contingencies of 0.75 metres.
The District Council had recommended 3.6 metres RL for
roads, and 3.8 metres RL for houses, and Kotuku Parks
Ltd had accepted those greater safety factors as the design
levels.
[119] By section 104(1) of the Resource Management Act,

Parliament has directed consent authorities to have
regard to various matters when considering resource
consent applications. We quote the subsection
(omitting immaterial provisions)28
CONSIDERATIONS
104. Matters to be considered (1) Subject to

Part II, when considering an application for
a resource consent and any submissions
received, the consent authority shall have
regard to
(a) Any actual and potential effects on the
environment of allowing the activity; and
(c) Any New Zealand coastal policy

statement, regional policy statement; and
(d) Any relevant objectives, policies, rules, or
other provisions of a plan; and
(f) Any relevant regional plan or proposed

regional plan, where the application is made
in accordance with a district plan; and
(i) Any other matters the consent authority

considers relevant and reasonably necessary
to determine the application.
[116] Mr OCallaghan had considered the risk of

inundation from tsunamis. He deposed that the design level
adopted would create levels higher than those of
surrounding developed residential areas, and that the
available freeboard would exceed all recorded events on
the west coast of New Zealand over the last 150 years. Mr
OCallaghan gave the opinion that the proposed levels,
with their conservative allowance for freeboard, would
provide a sufficiently high platform to provide an
acceptably low risk from tsunamis.
[120] The opening words of the subsection Subject to

Part II indicate that the duty to have regard to the matters
listed has to yield in cases where to have regard to them
would conflict with Part II. 29 In this case, no party
submitted that any such conflict would arise, and we are
not aware of any reason why it might. We therefore proceed
to have regard to such of the matters listed as are material.
[117] In cross-examination, Mr OCallaghan confirmed

that even a 100-year event followed by a 20-year event
would not pose a risk at the design building platform levels.
He accepted that mean sea-level had already risen by about
0.06 of a metre since the datum was established in 1953.
Planning instruments
[121] Our consideration of the relevant provisions of Part
II of the Act shows that there would be effects on the
environment of allowing the proposed earthworks and
subdivision. There are planning instruments of some of
the classes listed in section 104(1), and we will address
material provisions of those instruments before returning
to the environmental effects. Many provisions of the
relevant planning instruments express similar objectives
as are contained in Part II of the Act, and apply them in
similar ways. So to avoid tedious detail, we identify the
main provisions which should influence the decision of
the applications before the Court.
[118] Having considered that evidence we consider that

the approach taken by Mr OCallaghan is consistent with
sound engineering practice. Although a rare major event
causing extensive inundation or erosion could occur on
this coast at any time, it is not standard practice to design
for such extreme events as those described by Mr Edwards
and Dr Goff. The Kapiti District Council was satisfied that
by raising the building platform levels sufficient provision
would be made to avoid or mitigate the likelihood of
damage, and we make the same judgment.
28 As substituted by section 54 of the Resource Management Amendment Act 1993.

29 Paihia and District Citizens Assn v Northland Regional Council Planning Tribunal Decision A77/95; Russell Protection Society v Far North
District Council Environment Court Decision A125/98.
210
New Zealand Coastal Policy Statement
adverse impacts on the natural and physical environment;

and protects the remaining habitats. On earthworks, the
plan stipulates avoiding adverse effects by taking into
account impacts on prominent or visually sensitive
landforms, including dunes, avoiding creation of unnatural
scar faces, and altering existing landforms. It adopts a
policy of maintaining the integrity and character of the
underlying landform and habitats.
[122] This instrument,30 consistent with section 6 of the

Act, seeks as a national priority to avoid adverse effects of
development on the landform, natural character, waahi
tapu, and fauna and flora along the coast. It recognises
that this need not preclude appropriate development in
appropriate places, and indicates that policy statements and
plans should define where subdivision and development
would be appropriate in the coastal environment.
[127] We have already stated our findings that by the

district plan the sites the subject of these applications are
zoned Residential, and that the applications for consent to
the proposed earthworks and subdivision have to be
considered as discretionary activities. Waikanae generally
is one of the areas identified for future growth; and the
proposal meets the standards for subdivision, such as the
size and shape of lots to be created. The site is among the
areas identified for urban subdivision, and is not among
the areas identified as an outstanding landscape or an
ecological area. However the plan plainly intends that the
areas for intensive residential subdivision to accommodate
the demand for population growth shall not include land
within the coastal environment.34
Wellington Regional Policy Statement

[123] Chapter 7 of this instrument 31 applies the Act and
the New Zealand Coastal Policy Statement to the coastal
environment of the Wellington Region. It recognises the
potential for development to cause significant adverse
effects, especially cumulative effects, loss of natural
character and damage to coastal ecosystems and landscape
features. There are policies for protection of significant
landscapes, landforms, and sand dunes. Some particular
examples are identified, and the Waikanae Estuary is not
among them, but the policy is not restricted to those
identified. The instrument calls for consideration of the
extent to which natural character has already been
compromised in an area, and the viability of alternative
sites for proposed activity which are outside the coastal
environment.
[128] Kotuku Parks Ltd submitted that policies about

buildings and earthworks in the coastal environment
showed that the district plan envisaged that there would
be new buildings and earthworks there. Its counsel also
made submissions based on subtle distinctions in the
wording of provisions for the Residential zone and for the
Rural zone.
Regional plans
[124] The only regional plans brought to our attention were
a regional soil plan and a regional coastal plan, neither of
which is applicable to the project the subject of these
proceedings.
[129] We are grateful for those submissions. Yet the

individual provisions need to be read in the context of the
plan to achieve the purpose of the Act (as elaborated in
Part II), and has not to be inconsistent with the Coastal
Policy Statement and the Regional Policy Statement.
Further we recognise that the plan will necessarily have
been prepared piecemeal and is not to be construed as
finished Chancery draftsmanship. 35 The plain meanings of
the provisions previously cited are consistent with the
provisions of section 6 we have already considered, and
also with the provisions of the Coastal Policy Statement
and the regional policy statement. So we do not accept
that inferences of the kind advanced on behalf of Kotuku
Parks Ltd should prevail over the plain meaning of the
words of the plan previously cited.
Kapiti Coast district plan

[125] The Kapiti Coast district plan32 is designed to assist
the District Council in achieving the purpose of the Act33
and implementation of the New Zealand Coastal Policy
Statement and the Wellington Regional Policy Statement
in that district. Accordingly it too identifies as important
issues the effects of residential subdivision on landform
and environmental features and values, particularly in the
coastal environment; and recognises that landscapes are
under threat from inappropriate development such as
flattening of sand dunes.
[130] The case for Kotuku Parks Ltd placed strong reliance
on the Residential zoning of the site as justifying
earthworks necessary to raise the proposed lots to the
[126] The district plan expresses objectives of ensuring

that subdivision and development avoids or minimises
30
31
32
33
34
35
New Zealand Gazette, 5 May 1994, p 1563.

Operative since 15 May 1995.
Operative since 30 July 1999.
Resource Management Act 1991, section 72.
Kapiti Coast District Plan, section C.7.2, page 133.
Rattray v Christchurch City Council (1984) 10 NZTPA 59 (CA); Sandstad v Cheyne Developments (1986) 11 NZTPA 250 (CA); Application by
Millbrook Country Club Environment Court Decision C45/97.
211
required safe level. In our opinion that approach would

place more weight on the zoning than it ought to bear. It is
a zoning which applies to substantial areas of the District.
Much of the zone that was not already developed at the
time the plan was made operative lies some distance from
the immediate coastal environment. Much of the zone could
be developed without the scale of earthworks needed in
the proposed subdivision. We hold that the true
interpretation of the district plan is that the earthworks and
subdivision for residential use of this site is to be so
designed that it serves the superior instruments (Part II of
the Act, the Coastal Policy Statement and the Regional
Policy Statement), and respects the provisions of the plan
which implements them.
and that it would be possible to design a more sensitive

subdivision development for the site.
[134] Mr Boffa gave the opinion that the proposal would
have major adverse visual effects, and that the mitigation
measures proposed are cosmetic and would not be effective
in avoiding, reducing or mitigating the adverse effects. He
confirmed that the development would be very visible and
prominent. In cross-examination he agreed that previous
urban development had caused substantial compromise of
the area.
[135] In our consideration of this issue, we assume that
the development would be carried out in accordance with
the consent conditions imposed by the District Council.
We accept that the required planting, the building height
restrictions, and restrictions on colour and reflective glass
would all contribute to mitigate the visual effects. Even
so, having considered the evidence we find that the totality
of the development, from earthworks replacing the natural
undulations with a mainly featureless landform, to houses
and accessory structures (including fences), would result
in a landscape that would be less attractive. The removal
of material from the borrow areas would alter their natural
shapes, and would also have an adverse visual effect. In
short, the proposal would have adverse visual effects that
would not be fully avoided, mitigated or remedied.
Effects on the environment

[131] As directed by section 104(1)(a) of the Act, we now
have regard to any actual and potential effects on the
environment of allowing the activity. We have already
considered the positive effects. Among the potentially
adverse effects we have already considered effects on the
natural character of the coastal environment. Although the
proposal does not involve development of outstanding
natural features or landscapes, it may still have visual
effects in a landscape, even though it is not an outstanding
one, so we will address that topic. We have already found
that the development would not be consistent with
protection of the nearby significant indigenous fauna
habitat. We have found that the effects on the relationship
of Maori with the site can be addressed adequately by a
condition which is acceptable to Kotuku Parks Limited;
and that the proposed development would limit the capacity
for exercise of kaitiakitanga.
[136] In summary, we find that the proposal would be

likely to have positive economic effects for Kotuku Parks
Ltd and those who benefit from its business activities, and
social and economic effects for purchasers of the residential
lots. We also find that it would have adverse effects on the
environment in that the natural character of the sand-dune
landform in the coastal environment would be lost; in
inconsistency with protection of nearby significant habitat
for indigenous birds, including some threatened species;
and in adverse visual effects in a sensitive landscape.
[132] We now consider the visual effects of the subdivision

development on the landscape. In that regard Mr Lister
deposed that that the design of the proposal and the
conditions of consent would reduce the inevitable effects
and soften the appearance of the subdivision from the
estuary. In cross-examination he accepted that the
subdivision had not been designed in sympathy and
harmony with the adjacent estuary area.
OTHER RELEVANT MATTERS

[137] A consent authority is also to have regard to any
other matters it considers relevant and reasonably necessary
to determine the application. 36 In that regard, we consider
the history of the total development of which this project
is Stage IV. That total development has been carried on
for a quarter of a century now, with Kotuku Parks Ltd
applying professional standards and co-operating with the
Council and other authorities, especially over creation of
reserves. The subject land has been zoned for residential
development over that period, and the subdivision is
generally in accordance with a concept plan accepted by
the District Council more than a decade ago.
[133] Mr Hudson gave reasons for his opinion that the

additional housing on the proposed subdivision would have
a significant adverse effect, although he considered that
the proposed conditions would mitigate the adverse effects.
In cross-examination he accepted that the site warrants
sensitive development, and agreed that features of the
project did not represent sensitive development, and would
be inappropriate. He also gave the opinion that the
conditions would not avoid or remedy the adverse effects
36 Resource Management Act 1991, section 104(1)(i).
212
[138] Even so, the current proposal has to be judged by

the purpose and provisions of the Resource Management
Act 1991, not those of the Town and Country Planning
Act 1977 and the Local Government Act 1974 by which
the zoning was originally set, and the concept plan
approved. The present regime introduces strong provisions
for sustainable management of environmental resources
that were not found in the earlier Acts. Even a developer
with a record of the quality of that which has been earned
by Kotuku Parks Ltd should not expect its reputation to
influence the application to its proposal of the matters of
national importance in section 6, or decision by reference
to the statutory purpose.
that every part of every piece of land in the zone may be

subdivided to the maximum permitted intensity,
irrespective of the environmental effects. Nor does it imply
that consent will be given to earthworks of the scale
proposed here, where they damage the natural character
of coastal dunes.
[142] In our judgment, giving as much weight as we can
to the positive benefits, the longstanding residential zoning,
and the concept plan approval prior to the present regime,
in respect of the particular proposal before the Court those
factors are outweighed by the cumulative effects of that
damage, of failing to protect the adjacent significant habitat
of indigenous fauna, the adverse visual effects, and the
impairment to kaitiakitanga. In short, in the circumstances
of the particular site the proposal is too intensive and would
have effects on the environment that are too great.
JUDGMENT
[139] Having followed the directions contained in the Act,
we have now to make a discretionary judgment whether
the consents required should be granted or refused.37 That
judgment has to be informed by the stated purpose of the
Act, the promotion of sustainable management of natural
and physical resources, as defined in section 5.
[143] That is not to conclude that no residential use of the

site should be permitted. But it is not appropriate for the
Court set limits, nor to offer the owners advice about how
to design development that deserves consent.
CONDITIONS
[140] The explanation of sustainable management in

section 5(2) ties enabling people and communities to
provide for their wellbeing, health and safety with
achieving the goals described in paragraphs (a), (b) and
(c) of that subsection. In this case consideration of the
extent to which the proposal fails to achieve those goals
overlaps consideration of the adverse effects of the
proposed activity on the environment. The outcome is to
connect the adverse effects to the statutory purpose itself.
Some adverse effects are to be given particular weight, in
that they represent failures to recognise and provide for
matters of national importance described in section 6. In
this case, the loss of the natural character of the sand-dune
landform of the coastal environment, and the exposure of
the adjacent significant habitat for indigenous birds
(especially threatened species), conflict with matters listed
in section 6(a) and (c) respectively. In addition there is the
adverse visual effect, and the duty to have particular regard
to the hindrance which the development would place on
the exercise of kaitiakitanga. The need to give weight to
these matters is confirmed by adoption of relevant values
in the Coastal Policy Statement, the Regional Policy
Statement and the district plan.
[144] In the circumstances, there is no point in the Court

addressing the issues raised by the parties in respect of
Kotuku Parks Limiteds appeal against the consent
conditions.
DETERMINATIONS
[145] For the reasons given, Appeals RMA1672/98,
RMA1673/98 and RMA1685/98 are allowed, the
respondents decision is cancelled, and the resource consent
applications are refused, without prejudice to the making
of further applications in respect of a different proposal.
Appeal RMA1655/98 is consequentially disallowed.
[146] The question of costs is reserved.

For the Court:
[141] To the positive effects already identified, there is

the recent confirmation in the district plan of the Residential
zoning of the site. However that is a general zoning
applying to large areas of the district. It does not imply
____________________________
D F G Sheppard
Environment Judge
37 Resource Management Act 1991, section 105(1)(b).
213
DECISION NO. A91/98

IN THE MATTER
AND
IN THE MATTER
of an appeal under section 120 of the Act
BETWEEN
ROBERT TE KOTAHI MAHUTA,

WAIKATO-TAINUI, TAINUI MAAORI
TRUST BOARD and NGA MARAE TOOPU
(Appeal RMA 662/97)
Appellants
AND
THE WAIKATO REGIONAL COUNCIL

and THE WAIKATO DISTRICT COUNCIL
Respondents
AND
ANCHOR PRODUCTS LIMITED

Applicant

Environment Judge D F G Sheppard
HEARING at AUCKLAND on 4, 5, 6, 8, 11, 12, 13 and 14 May 1998.
Counsel
Mr MLS Cooper and Mr G M Sandelin for the appellants
Mr J Milne for the respondent
Mr M C Holm, Ms H A Atkins, and Ms R V Keating for the applicant
214
DECISION
[5] By their notice of appeal those appellants sought

that the decision by the Regional Council and the District
Council be cancelled, and that the consents sought by the
applicant be denied. The notice of appeal raised nine broad
grounds. However as the appellants case was presented,
it was particularly directed to three matters: the special
relationship of Waikato-Tainui with the Waikato River, the
adverse effects on the river of taking water from the river
and of discharging contaminants to it, and the inadequacy
of consideration by Anchor Products and its advisers of
alternative methods of wastewater disposal.
A
THE PROCEEDINGS
[1] Anchor Products Limited (Anchor Products) wishes
to expand the capacity of its dairy factory at Te Rapa, and
to install a new gas-fired cogeneration plant (in place of
an existing coal-fired power plant) to supply energy to the
expanded milk-processing plant. The existing dairy factory
has capacity to process up to 3 million litres of milk per
day. The proposed expansion would increase the capacity
to 8 million litres per day. The cogeneration plant was
originally intended to generate up to 150 megawatts of
electricity, but Anchor Products has reduced the size of
the proposed plant to 45 megawatts, with consequential
reductions in the quantities of water to be taken from the
Waikato River, and of wastewater to be discharged.
[6] In the reply to the appeal lodged on behalf of the

primary consent authorities on 15 December 1997, the
Regional Council maintained that the conditions imposed
were appropriate to ensure that the potential adverse effects
on the Waikato River are avoided, remedied or mitigated.
However, by the time of the hearing of the appeal the
Regional Council took a different attitude. Having had
further technical advice, it maintained that a condition
imposed on the discharge permit for wastewater about the
limits on the concentration of phosphorus in the discharge
should be amended. An amended notice of reply to the
appeals was lodged 4 by the Regional Council proposing
an amended condition setting reduced phosphorus limits.
Anchor Products accepted that the limits on phosphorus
concentration in the discharge might be reduced, but
resisted the extent of the reductions involved in the
amended condition proposed by the Regional Council.
[2] Applications were made to the Waikato Regional

Council (the Regional Council) and to the Waikato District
Council (the District Council) for the resource consents
needed for Anchor Products project. The resource consents
that were granted by those primary consent authorities are
described in the appendix to this decision. Numerous
conditions were imposed on the consents granted.
[3] Four appeals to the Environment Court arose from
a joint decision of the Waikato Regional Council and the
Waikato District Council granting those resource consents.
Subsequently, an appeal by Mr RA Porter and Mrs Porter1
was withdrawn, as were appeals by Mr Tizard2 and by
Greenpeace New Zealand3 . That left Appeal RMA 662/97
to be heard and decided by the Court.
[7] During the course of the hearing of the appeal,

counsel for the appellants announced that the appellants
would not raise any specific challenge to the grant of the
land-use consent. Accordingly, there was no need for us to
call on the District Council to present its case in support
of the decision to grant that consent, and there being no
opposition, the District Council was dismissed from the
proceedings.
[4] In that appeal the appellants are Robert Te Kotahi

Mahuta, Waikato-Tainui, Tainui Maaori Trust Board and
Nga Marae Toopu. Waikato-Tainui are the descendants of
the Tainui Waka, referred to and defined in the definition
of Waikato in section 2 of the Waikato Raupatu Claims
Settlement Act 1995, which lists 33 hapu of Waikato. Sir
Robert Mahuta is principal negotiator on behalf WaikatoTainui in respect of a claim by them under the Treaty of
Waitangi Act 1975 for the Waikato River. Tainui Maaori
Trust Board is a statutory body incorporated under the
Maori Trust Boards Act 1955, and is the iwi authority of
the iwi of Waikato, mandated by the 61 Waikato marae.
Nga Marae Toopu is a body representing all marae in the
wider group of Tainui, and which has mandated Sir Robert
Mahuta to represent them on all matters concerning the
Waikato River.
1
2
3
4
5
B
THE PROPOSAL
[8] Anchor Products dairy factory at Te Rapa is 10
kilometres north-west of Hamilton, immediately to the east
of State Highway 1, and to the west of the Waikato River.
It is one of ten manufacturing sites of the New Zealand
Dairy Group (the Dairy Group). The proposal is to expand
the dairy factory to create what the Dairy Group calls a
megasite. The expanded Te Rapa factory would become
one of five megasites planned for the Group 5 . It was
indicated that, in the process of consolidation of the Dairy
Appeal RMA 668/97.

Appeal RMA 693/97.
Appeal RMA 693/97.
Amended reply lodged on 10 May 1998, pursuant to leave granted on 8 May 1998, replacing the reply lodged on 15 December 1997.
The others are Lichfield, Wairoa, Hautapu and Edgecumbe.
215
Groups manufacturing on the megasites, the Groups other

dairy factories will be closed by about 2009.
[15] The reduction in size of the cogeneration plant

(already mentioned) has resulted in corresponding
reductions in the use of water and wastewater (5,000 cubic
metres per day and 1,500 cubic metres per day less,
respectively), and consequential amendments to the
consents granted by the joint hearing can be made. The
reduction also meant that a 110 kilovolt transmission line
(for which resource consent would be needed) is no longer
required, as the plant could now use 33 kilovolt lines, for
which resource consent is not needed.
[9] The expanded factory would have capacity to

process 8 million litres of whole milk per day producing
primarily skim and whole milk powder for export, and
cream production would be increased from 650,000 litres
of cream per day to 2 million litres per day, making
products such as butter, milk fat, cream cheese and fat
blends.
[10] In the expanded factory, the use of steam would
increase by about 40%, and electricity demand would
increase by about 600%, from 5 megawatts to 30
megawatts at peak demand. The increased demand for
energy is proposed to be met by installing a 45 megawatt
gas-turbine cogeneration plant on the site.
[16] The proposal includes a partly land-based system

for disposal of wastewater. There would be a gully system
of rock-lined weirs, and a rock-lined conduit (enabling
some contact with the land). This system was proposed as
an alternative to a pipe discharging directly into the Waikato
River, in response to tangata whenua concerns about that
method of disposal. The proposal also includes recognition
and protection of the site on the river edge of the former
Mangaharakeke Pa.
[11] Mr R E Townshend, Group General Manager of

Anchor Products, deposed that there is demand for
additional capacity in order to meet projected milk flows
in the 1999 season. He testified that the volume of milk
had increased because of market conditions (such as the
international price for dairy products 1991/1992 season),
mergers, closures of smaller factories6 , weather, and other
variables. The overall volume of milk produced continues
to increase, the peaks can be sudden and variable, and the
shoulder period is also subject to variation in terms of
volume and length of period.
[17] Much of the evidence and argument in these

proceedings (both at the primary hearing and at the appeal
hearing) centred on the consents for wastewater discharge,
and in particular, the method of disposal and the volume,
heat, nutrient content of the wastewater, and the effects on
the river of the discharge. Hydraulic aspects of the disposal
system and the treatment station were also the subject of
extensive technical evidence.
[12] He observed that failure to provide capacity to

process the increasing quantity of milk produced could
lead to disposal of milk on-farm, with possible
environmental effects and adverse economic effects for
those farmers, and for Anchor Products.
[18] The Waikato District Council and the Waikato

Regional Council granted resource consents to take water
from the Waikato River, and to discharge water (treated
wastewater, cooling water, blow-down water, stormwater)
to the Waikato River7 .
[13] As part of the expansion, Anchor Products proposes

to construct an additional milk-powder drier; a new
evaporator hall; extensions to the existing drystores;
additional milk silos; an expansion to the tanker reception
area; an extension to the cream processing plant; additional
coolstores; a new separated access system from State
Highway 1 and a new internal roading pattern; and a new
wastewater treatment system for dairy factory wastewater,
cooling water and stormwater.
[19] In the appeal hearing, Anchor Products sought that

those consents be upheld, except to the extent of
consequential reductions arising from the reduced scale
of the cogeneration plant. It accepted that the limits on
phosphorus concentration in the discharge might be
reduced to an average of 57 kilograms per day, and a
maximum of 70 kilograms per day, but resisted the
reductions involved in the amended condition proposed
by the Regional Council to 25 and 35 kilograms per day
respectively.
[14] The cogeneration plant (which is to be constructed

and run by Contact Energy Limited) would be a new project
that would supersede the existing coal-fired plant on the
site. The plant would use a gas turbine generator to produce
both electricity and steam. The steam would all be used in
the dairy factory, and any excess electricity would be
exported.
6
7
C
CONTRIBUTION
TO
COMMUNITY WELL-BEING
[20] The relationship between Waikato-Tainui and

Anchor Products occurs within a complex set of social and
economic inter-relationships that characterise the primary
For example, that at Waharoa.

Details of the resource consents granted are set out in the appendix to this decision.
216
sector of New Zealand. One aspect of this is the positive

contribution that the dairy industry makes to the countrys
economy, and the particular contribution made by Anchor
Products, which (it was asserted) would be enhanced by
the proposed expansion at Te Rapa.
[21] The New Zealand dairy industrys exports represent
about 30% of the worlds total international free trade in
dairy products, and its total export revenue (about $6 billion
in 1996/1997) is equivalent to 20% of the countrys total
export earnings.
[22] Mr J D Storey (Chairman of the NZ Dairy Group)
estimated that the New Zealand Dairy Group will earn
approximately $3 billion of export revenue in 1997/1998.
He testified that approximately half of the Groups total
annual revenue is paid out to suppliers for milk, and that
the rest is used to run the business, and to pay for such
costs as wages, salaries, goods, and services.
[23] Recent research 8 suggested that the Dairy Group
employs some 4,000 people and contributes some $8 billion
annually to the economy of the greater Waikato and
Auckland regions.
2.
The expansion of the Te Rapa factory would have

economic benefits for the suppliers of milk and for
other businesses (and their suppliers in turn), as well
as for the company itself. The rural infrastructure
and associated service towns rely on the continued
viability of dairy businesses. There would also be
significant economic consequences for the
community if there is not sufficient capacity to
process for export all the milk produced.
3.
4.
6.
New plantings of native plants are proposed

alongside the gully project, available for traditional
medicinal use, and increasing river-edge
biodiversity.
7.
Anticipated savings from the cogeneration plant

would yield savings in costs of production which
may further enhance New Zealands reputation as
a low-cost dairy products producer while having
lower impact on the environment than that of the
current coal-fired power-house.
8.
The expansion would create 30 additional permanent

jobs on the site.
9.
Increased processing capacity at Te Rapa would

allow closure of older less-efficient dairy factories
in the region.
OF
APPLICATION
The issue
[26] The appellants questioned the adequacy of the
application, the assessment of effects on the environment
(AEE) and the technical data submitted with it. They
asserted that complete technical information had been
needed to enable their advisers to examine the proposal in
detail. Questions were raised about the volumes of elements
in the wastewater treatment and disposal system, and about
discrepancies in estimates of nutrient content in the
wastewater. A consulting engineer engaged by the
appellants, Mr R E Hedgland, questioned whether it would
be practicable to comply with the discharge permits.
Criticisms were made about alleged inconsistencies
between the application and the proposal as currently
described.
[25] Anchor Products pointed to various positive

community benefits which would result from the Te Rapa
expansion project, including the following:
Milk is an eco-toxic substance, and it is preferable
that it is processed and the products exported, rather
than disposed of to waste. This requires capacity to
process all the milk available.
Anchor Products is proposing a management plan

to preserve and enhance the remaining features of
the Mangaharakeke Pa site.
D
ADEQUACY
[24] The dairy industry as a whole is undergoing a period

of consolidation, including the trend to megasites
incorporating new technology, and the decommissioning
of older, small factories.
1.
5.
[27] In response Anchor Products submitted that the

function of the various application documents had been
misinterpreted by the appellants, and that there was no legal
requirement to provide the depth of technical detail
expected, or for the proposal to remain exactly as described
in the application documents throughout the application,
hearing and appeal processes.
About 20% of the workers at the Te Rapa factory

are Maori, and about 300 to 350 farms in Maori
ownership supply the company in this area.
[28] Counsel for the appellants, Mr Cooper, submitted

that to meet the requirements of section 88(4)(a), section
104(3)(b) and clause 1(b) of the Fourth Schedule, the actual
effluent treatment system to be used ought to be described
A significant number of local businesses are

dependent upon the Dairy Group for their survival.
Commissioned by the Dairy Research Institute.
217
and its capacity known with precision, and that the duty of
consent authorities to have regard to the actual and potential
effects on the environment of allowing the activity must
necessarily embrace being satisfied that a proposed system
will work (which requires consideration of its constituent
parts) and will be able to comply with conditions necessary
to mitigate adverse environmental effects.
[33] In his evidence Dr McCabe addressed effects of

nutrient discharges to the Waikato River, nutrient control
measures that he considered are required to overcome
adverse effects of river eutrophication, and controls on
plant nutrients in the proposed discharge. Much of his
evidence in chief concerned the existing nutrient loading
of the Waikato River and its effects. He then considered
the likely effects of nitrogen and phosphorus in the
proposed discharge consented to by the Regional Council.
In that section of his evidence he referred to information
about the proposed treatment and the proposed discharge
contained in the evidence of Mr P C Kennedy, a scientist
who had been called to give evidence on behalf of Anchor
Products. Dr McCabe felt able to give his opinions about
the likely effects on the river of the proposed discharge,
and his recommendations about the limits that should be
set for concentrations of nitrogen and phosphorus in the
discharge, and about the proposed discharge structure.
There was no basis in Dr McCabes evidence for a finding
that he had lacked information about the proposal necessary
to enable him to make his professional assessment of the
likely effects on the aspect of the environment the subject
of his evidence, namely the waters of the Waikato River.
[29] Mr RJW McCowan 9 deposed that the intent had

been to establish a detailed framework, or envelope, of
environmental standards and requirements which would
enable Anchor Products to undertake final detailed
technical and engineering designs. He was not, for
example, able to confirm the kind of reactors to be used.
[30] Mr Cooper submitted that the envelope approach
to the assessment of effects did not comply with the
requirement of the Resource Management Act, relying on
section 88(4), the Fourth Schedule and section 104(3). He
observed that the treatment system has not been designed
for phosphorus removal, and that (according to Mr
Macdonald 10 ) it would need to be redesigned to provide
for that; and that no detail had been given of the flow
balancing method, the pilot trials having assumed constant
flows.
[34] Mr Mitchells evidence related to possible sites

suitable for disposal to land of treated wastewater. He too
was able to give the Court his opinions based on the
Regional Councils consent. His evidence does not assist
us in deciding the adequacy of the application.
[31] Counsel for Anchor Products, Mr Holm, responded

by observing that the appellants had disclaimed any legal
challenge to the adequacy of the AEE for the proposal,
and submitting that the provisions of the Act do not impose
an obligation on the applicant to complete detailed and
final engineering designs before seeking consents, nor was
there any obligation not to deviate from the AEE. He
contended that the envelope of effects basis of the
application does not conflict with the Act and is a
reasonable and common approach for industrial projects
involving large-scale engineering design. Counsel
submitted that the statutory provisions referred to by Mr
Cooper do not impose an obligation on an applicant to
complete detailed and final engineering designs before
seeking consents, and that there is no authority for the view
that an AEE should have some binding effect on an
applicant. He described Mr Hedglands approach as
inflexible and pedantic.
[35] It was Mr Hedgland who expressed concern about

the adequacy of the technical information available. In
cross-examination he accepted that there is scope for
information given in an AEE to be modified later following
consultations and consideration of submissions, but he
considered that it should be limited to minor clarification.
He raised four separate respects in which he claimed that
the information was inadequate.
[36] The first respect was apparent discrepancies in
references to the quantity of water to be taken from the
river. The witness deposed to having calculated water take
figures ... considerably greater than the amount for which
the Regional Council had granted consent. He remarked
that there had been no discussion in the application
documents of the effects of the present water take, and
went on to give his opinion that present and future flows
would cause the velocity in the inlet channel to exceed by
a considerable amount the limit set in the Regional Council
consent (to prevent larval fish entrapment). He therefore
predicted that the intake channel would require
modification to achieve a reduction in velocity to comply
with the limit, gave the opinion that such modification may
impose an impact on the river, and proposed that the
The evidence
[32] The existence, and significance, of any inadequacy
in the application should be apparent from the appellants
technical evidence. The technical witnesses who testified
on behalf of the appellants were a consulting environmental
scientist, Dr B McCabe, a senior consulting environmental
engineer, Mr Hedgland, and a consulting geotechnical and
civil engineer, Mr M T Mitchell.
9 General Manager, Engineering and Projects, for Anchor Products.

10 Mr G J Macdonald, a consulting engineer engaged by Anchor Products.
218
applicant should be required to submit details of

compliance measures proposed so that the Trust Board
could assess the impact of those measures on the river. In
cross-examination the witness agreed that compliance with
the conditions would provide the Regional Council with
an effective monitoring of the quantities of water actually
abstracted, and that the consent-holder would have the risk
if it needed more water than it had consent to take. He also
confirmed that the intake velocity limit is strict, that the
consent-holder would have the risk of complying with that
limit, and that standard engineering techniques could be
applied to ensure compliance.
volumes of sludge that would be produced would be of

the order of 40,000 cubic metres per year, observed that
sludge handling, treatment and disposal can have
significant environmental effects (citing odours,
greenhouse gases, noise and leachate), and gave the opinion
that more information is required to evaluate the feasibility
of the proposal and determine the environmental effects
of sludge management.
The law
[40] Section 88 of the Resource Management Act governs
applications for resource consents. Subsection (4) sets out
the information that is to be included in an application,
subject to subsection (5)13 . Section 88(4) 14 provides:
[37] The second respect in which Mr Hedgland raised

inadequacy of information in the application was apparent
discrepancies in the quantities of wastewater flows. He
deposed that these have a significant impact on the total
quantity of the discharge, on the efficiency of the discharge
mechanism, and possibly the viability of the plant itself.
He had considered supplementary evidence of Mr
McCowan, and remained unclear about the quantities of
stormwater and backwash water, and of concentrations of
solids from chemical flocculation and chemical coagulants
in the discharge. In cross-examination he accepted that in
normal engineering practice there would be a contingency
factor and a factor of safety, and that the system could be
engineered for the outlet to meet the conditions of the
discharge permit.
Subject to subsection (5), an application for a

resource consent shall be in the prescribed form
and shall include (a) A description of the activity for which consent
is sought, and its location; and
(b) An assessment of any actual or potential
effects that the activity may have on the
environment, and the ways in which any
adverse effects may be mitigated; and
(c) Any information required to be included in
the application by a plan or regulations; and
(d) A statement specifying all other resource
consents that the applicant may require from
any consent authority in respect of the activity
to which the application relates, and whether
or not the applicant has applied for such
consents; and
(e) ...
[38] Thirdly, Mr Hedgland observed that the system for

treatment of strong wastes has not been chosen from
sequential batch reactors, upflow anaerobic sludge blanket
reactors, or a biological nutrient removal activated sludge
system. He deposed that different treatment systems would
produce different impacts and emissions, and referred to
the importance of flow balancing and equalisation for
consistent performance of biological reactors. Mr Hedgland
stated that specific design data and technical details had
not been provided, and emissions and impacts had not been
quantified and assessed, in a manner which would allow
full and open scrutiny and independent evaluation of
performance predictions. The witness gave the opinion that
a mean and upper limit effluent standard should be included
in the consent conditions for various parameters11 and, as
there is a real possibility that excursions from the mean
could occur for extended periods, the upper limit should
be set at a level which does not cause environmental
damage.
[41] Section 88(6) indicates the level of specificity

required as follows:
Any assessment required under subsection (4)(b)
or subsection (5)
(a) Shall be in such detail as corresponds with
the scale and significance of the actual or
potential effects that the activity may have
on the environment; and
(b) Shall be prepared in accordance with the
Fourth Schedule.
[42] Details of matters that should be included in an

assessment of effects on the environment are set out in the
Fourth Schedule to the Act.
[43] The requirements of notice and the wide rights of
public participation conferred by the Act are based upon a
statutory judgment that decisions about resource
management are best made if informed by a participative
[39] The fourth inadequacy raised by Mr Hedgland

related to the sludge that would be produced by the
elements in the treatment system12. He estimated that the
11 BOD 5, COD, total phosphorus, total nitrogen, and temperature.

12 Dissolved air flotation, sequential batch reactors, upflow anaerobic sludge blanket reactors, and chemical reclamation facilities.
13 Section 88(5) (as substituted by section 44(2) Resource Management Amendment Act 1993) relates to discretionary and controlled activities, and
provides that assessments of effects shall address only those matters specified in a plan or proposed plan over which the local authority has
retained control, or which the local authority has restricted the right to exercise its discretion, as the case may be.
14 As amended by section 44(1) Resource Management Amendment Act 1993.
219
process in which matters of legitimate concern under the

Act can be ventilated15 . Adequate information for potential
submitters is therefore integral to the functioning of the
Act.
cost of more detailed research and assessment and design

of the proposal would have been disproportionate and
unnecessary.
[46] In Epsom Normal Primary School Board of Trustees
v Auckland City Council19 the adequacy of the application
was seen as a question of content (substance and gist) rather
than of legal niceties. A consent authority could not grant
consent to matters which were not detailed in the
application, as these matters would not have been brought
to the attention of those likely to be affected.
[44] In AFFCO v Far North District Council (No 2) 16

the Planning Tribunal said 17 :
The proposed activity has to be described in detail
sufficient to enable the effects of carrying it on
to be assessed in the way described by the Fourth
Schedule. The description is intended to include
whatever information is required for a consent
authority to understand its nature and effects that
it would have on the environment. The description
is expected to be full enough that a would-be
submitter could give reasons for a submission
about it and state the general nature of conditions
sought. The application needs to have such
particulars that the consent authority would need
to be able to have regard to the effects of allowing
the activity, and to decide what conditions to
impose to avoid, remedy, mitigate adverse effects
without abdicating from its duty to postponing
consideration of details or delegating them to
officials...
[47] In McIntyre v Christchurch City Council 20 the

Planning Tribunal said 21 :
Applicants for resource consent are required to
assess the actual and potential effects that the
proposed activity may have on the environment
[s88(4)(b)]. The consent authority, and anyone who
may be forming an attitude to the application,
should be able to rely on such an assessment. For
an applicants environmental assessment to have
its intended value, an applicant must expect to be
held to the effects stated in it.
[48] In Clevedon Protection Society Inc. v Warren Fowler

Limited22 the Court observed that the adequacy of an
application is a matter of jurisdiction. The consent
authoritys jurisdiction is constrained by the contents of
the original application (including documents) as a matter
of fairness to submitters, and to those who would have
been submitters if the application had not been limited.
... Under this Act, a consent authority is expected

to make a final decision, and if resource consent
is granted, to impose conditions that will enable
the grantee to assess their full effect before
deciding whether or not to exercise the consent.
In summary, good resource management practice
requires that sufficient particulars are given with
an application to enable those who might wish to
make submissions on it to be able to assess the
effects on the environment and on their own
interests of the proposed activity. Advisers to
consent authorities and would-be submitters
should not themselves have to engage in detailed
investigations to enable them to assess the effects.
It is an applicants responsibility to provide all
the details and information about the proposal that
are necessary to enable that to be done. The
proposal and the supporting plans and other
material deposited for public scrutiny at the
consent authoritys office should contain sufficient
detail for those assessments to be made.
Findings
[49] In this case there is no room for finding that the
primary consent authority needed more information to
understand the effects that the proposal would have on the
environment, or to decide what conditions to impose. The
joint committee (perhaps assisted by advisers) was able to
prepare a full report dealing confidently with the main
issues, and imposed an elaborate suite of conditions, many
of them technical in nature. Nor is there room for concern
about the scope of the consent authoritys jurisdiction. It
was not suggested that the application lacked sufficient
definition for that purpose.
[45] The AEE must be kept in proportion to the potential

effects of the proposal. In Newlove v Northland Regional
Council 18 , an application for water take from the Kaihu
River, it was held (having regard to section 88(6)) that the
15
16
17
18
19
20
21
22
[50] Nor yet is there room for concern that the appellants
and their advisers had not been able to identify from the
application whether their interests might be affected by
Murray v Whakatane District Council [1997] NZRMA 433, 467; 3 ELRNZ 308, 317.
[1994] NZRMA 224; 1B ELRNZ 101.
[1994] NZRMA 234-5; 1B ELRNZ 113-4.
Planning Tribunal Decision A30/94.
Planning Tribunal Decision A11/95.
[1996] NZRMA 289; 2 ELRNZ 84.
[1996] NZRMA 317; 2 ELRNZ 122.
(1997) 3 ELRNZ 169.
220
the proposal. The appellants duly lodged a written

submission, presented a full case to the primary hearing,
lodged the present appeal, and again presented a full case
in support of it. Two of their three technical witnesses were
able fully to present their evidence in support of the
appellants case.
between the applicants wish to avoid the cost of detailed

design until it is known whether resource consents will be
granted, and the opponents wish to have full details so
that any adverse effects on the environment can be
identified and if possible quantified. In resolving such a
tension, a judgment is needed based on the circumstances
of the individual case.
[51] Of course none of the foregoing precludes the

possibility that the application was inadequate in respect
of the subject-matter of Mr Hedglands evidence. We now
return to the four respects in which he found the
information lacking.
[57] Having considered the circumstances of this case,

we have concluded that the discrepancies and omissions
identified by the appellants have not prejudiced them, or
deprived the primary consent authorities or this Court of
evidence necessary to enable the proposal to be considered
and decided in accordance with the Act.
[52] On the quantity of water to be taken, Mr Hedgland

accepted that the consent-holder would be limited to the
amount authorised, and to the inlet velocity prescribed. In
our judgment, modification of the intake structure to enable
compliance is a matter of detailed design, and we are not
persuaded that the appellants were unable, through lack of
that detail, to bring to the Courts attention any resulting
adverse effects on the environment.
[58] We now return to the appellants claim that a consent

authority needs information in such detail as to be satisfied
that a proposed system will work in conformity with
consent conditions.
[59] In Newlove v Northland Regional Council 23, the
appellants had raised the efficiency of the sprinkler
irrigation system proposed. The Court found that the
system proposed would be suitable, but that it was not
necessary to look behind the water take application and
consider the overall management of the farm that gave raise
to the need to irrigate. The Court was satisfied that the
applicants had given responsible consideration to
alternatives to the proposed sprinkler system, had rejected
these for sound management reasons, and held that the
applicants were entitled to make management decisions
about the farm.
[53] We have not been persuaded, either, that the

discrepancies in the details of the wastewater flows have a
significant impact on the total quantity of the discharge,
on the efficiency of the discharge mechanisms, or the
viability of the plant. Like Mr Hedgland, we accept that
that the discharge system could be engineered so as to meet
the conditions of the discharge permit, and to have a
contingency factor in the design, with a margin for safety.
[54] For commercial reasons, Anchor Products have not
yet made a choice from the possible proprietary methods
of treatment system. We accept that the different systems
would have different impacts and emissions, and that
biological reactors would require flow balancing. These
too are capable of being provided for in the detailed
engineering design, so as to ensure that the discharges are
within the limits permitted. Mr Hedgland was able to give
the Court his opinion about amendments to the conditions
which he considered desirable. We find that the absence
of a final choice from the short-list of treatment systems
has not prejudiced the appellants.
[60] A consent authority may be concerned with how

compliance is achieved where the method is directly related
to controlling the effects of the proposed activity. The test
is whether the method of achieving compliance could be
controlled by conditions of consent. In this case, Mr
Hedgland accepted (in cross-examination) that the
treatment and disposal system could be engineered so as
to comply with the conditions.
[61] In the AFFCO decision 24 (above) the Planning
Tribunal held:
[55] Mr Hedgland was also able, on the information

available, to give his evidence on the likely environmental
effects from the handling and disposal of sludge. However
sludge is likely to continue to be disposed of by contractor
off-site, as it is at present. Again we are not persuaded that
the appellants have been prejudiced.
The Resource Management Act 1991 contemplates

that where more than one resource consent is
required for a proposal, applications for all the
consents required should be made at about the
same time. Indications of that may be found in
the provisions for joint hearings and decisions by
primary consent authorities (see sections 102 and
103) and by this Tribunal (see s270), and in
references in the Act to integrated decision-making
(see s31(a) and s88(4)(d)).
[56] In the case of a proposal of the scale and complexity

as the present, it is unavoidable that there will be a tension
23 See footnote 18.

24 See footnote 16.
221
[62] The AFFCO decision was followed by the

Environment Court in Waitakere Forestry Park v Waitakere
City Council 25 . After considering sections 88, 90, 91, 93,
102, 103 (in order to interpret section 91), the Court said26 :
[67] The response was that effects would be dependent

on the wastewater treatment methods and the sludge
treatment and disposal techniques finally adopted.
[68] We accept that those details would be consequential
on choices to be made in the detail design phase, and that
if further resource consents are needed, they would need
to be obtained. There is nothing in the evidence before us
to indicate that the likely effects on the environment would
be significant, or calculated to influence the outcome of
the resource consent applications now before the Court.
The principle to be derived from the scheme of

those sections is that:
Good resource management practice requires that
in general all resource consents required should
be carefully identified from the outset and
applications made so that they can be considered
together jointly. (AFFCO v Far North District
Council, A6/94).
[69] In summary we do not accept the appellants

submissions about the inadequacy of the application and
the AEE.
[63] The Court noted 27 that:

... the second limb of s91(1) is designed to allow
a consent authority to defer a hearing of an
application if a further consent application will
give a better understanding of the proposed activity
and its effects, these together comprising the
proposal.
E
RELATIONSHIP OF THE WAIKATO-TAINUI WITH THE
WAIKATO RIVER
[70] The Waikato-Tainui people have a special
relationship with the Waikato River which is of
fundamental importance to their social and cultural wellbeing. The planning instruments (detailed later in this
decision) also recognise the relationship between WaikatoTainui and the Waikato River. The evidence brought by
the appellants to demonstrate this relationship was not
challenged. What was at issue was the significance to be
given to that relationship in deciding the resource consent
applications before the Court.
[64] If an applicant does not apply for all of the resource

consents that are required, the Court may defer
consideration of the application until such time as these
applications are made. Section 91 was compared with the
consent authoritys ability under section 92 to defer a
hearing until further information is supplied, that power
being restricted to circumstances where a better
understanding of the activity (rather than the effects) is
required.
[65] In that case the applicant was reminded28 that:
[71] A central tenet of this relationship is the metaphysical

aspect of the Waikato River, its mauri, and associated
metaphysical phenomena. Evidence was given which
illustrated the appellants belief in profound spiritual powers
connected with the overall identity of the Waikato River.
Generally under Part III, the primary obligations

are on the landowner to observe the provisions
of the Act. The applicant for resource consent must,
under s88(4)(a) include:
a statement specifying all other resource consents
it may require from any consent authority in
respect of the activity to which the application
relates...
... there is no obligation on the Council to provide
particulars.
[72] Ms A R Parsonson, a Senior Lecturer in History at

the University of Canterbury, gave evidence on the history
of the relationship of Waikato people with their river. She
deposed that generations of Waikato people have been
kaitiaki of the river, and observed that the importance of
the river to the people is expressed in whakatauki
(proverbial sayings), pepeha (prophetic sayings), and
waiata (songs - many old songs and many newly-composed
for kapa haka groups in recent years). One of the
whakatauki refers to the many bends of the river as it wends
from Taupo to the Waikato Heads, and to the many chiefs
of Waikato River:
[66] Returning to the present case, Mr Hedgland deposed

that upflow anaerobic sludge blanket reactors generate
considerable quantities of biogas which can have an impact
on greenhouse gases, and observed that an application has
not been made for a discharge to air from the anaerobic or
aerobic phases of treatment. He also deposed that resource
consents would be needed for discharge of sludge to land
and discharges to air from the handling and treatment of
sludge.
25
26
27
28
He piko, he taniwha, He piko, he taniwha, Waikato

Taniwharau.
[1997] NZRMA 231; 3 ELRNZ 38;

[1997]NZRMA 236; 3 ELRNZ 44.
[1997] NZRMA 238; 3 ELRNZ 45; paragraph 3.6.
[1997] NZRMA 238; 3 ELRNZ 46; paragraph 4.3.
222
add to upstream sources of pollution and claim

that their own pollution is very small when
compared with the flow of the river. The quality
of the water must be improved and I believe that
users of the river should be collectively responsible
to ensure that this happens.
[73] Mr Hare Wakakaraka Puke, Chairman of the Tainui

Maaori Trust Board, also referred in evidence to this
proverb, although in fuller detail29 , as enshrining the history
of Ngaati Waiere of Waikato. Mr Puke described the Mauri
of the river, and explained that the development and
desecration of sacred sites had tangible and intangible
effects, which could be felt as an assault upon the spirit
and the mind. He also referred to the traditional cleansing
powers of the river, which could cleanse and make whole
the mortal being and spirit.
[77] Mr Shane Ringa Solomon is a research fellow with

the Centre for Maaori Studies and Research at the
University of Waikato, and a legal researcher for the Tainui
Maaori Trust Board. Mr Solomon is also an assistant to
Sir Robert Mahuta for the Trust Boards claim to the
Waikato River under the Treaty of Waitangi Act.
[74] Mrs Iti Rangihinemutu Rawiri is a member of the

Te Awamaarahi Marae and a Trustee for Huakina
Development Trust. Her evidence described the spiritual
associations of the Waikato River, and emphasised the
importance of that relationship for the Waikato people,
including the healing and blessing powers of the River.
She explained about the various taniwha whose
appearances signify momentous happenings, and her belief
that the Waikato River is a tuupuna. She expressed concern
that this ancestor had been harmed by the various pollutants
going into the river, damming and other desecration. Mrs
Rawiri said that :
[78] Mr Solomon said in evidence:

Underlying the claim to the Waikato River is the
Waikato-Tainuis special relationship with the
Waikato River. The existence of a special
relationship between Waikato-Tainui and the River
has long been recognised publicly, and in the report
of the Waitangi Tribunal (Ngaati te Ata and Tainui
Re Manukau) July 1985 (Wai 8), the Tribunal
concluded (amongst other things):
It is difficult to over-estimate the importance
of the Waikato river to the Tainui tribes. It is
a symbol of the tribes existence.
... when people abuse the River it is the same as

people abusing our mother or grandmother. People
must respect our river ancestor which must be put
back to good health.
The significance of the River to the Waikato people

has been concisely and accurately expressed by
Dr Michael King in his biography of Te Puea where
he states:
[75] Mr Te Motu-iti-o-rongomai-te-hoe Katipa is an

assisting elder at Turangawaewae Marae in Ngaaruawaahia.
He was born on the island Te Weranga o Okapu in the
Waikato River, and moved from the island to
Turangawaewae in 1948. Mr Katipa expressed his
understanding of the spiritual aspect of the relationship with
the river, which included aspects such as cleansing, blessing,
healing, and as a place of prayer similar to a church. He too
recognised the river as an ancestor, and commented that it
is a living thing and needs to be cared for. Mr Katipa
described some of the rivers sacred functions, including
as a canoe pathway to Taupiri for burials, and the
metaphysical aspect of the river as a guardian capable of
forewarning the people.
More than any other in New Zealand, the

tribes of the Waikato Valley are a river people.
Five centuries of continuous occupations of
its banks have embedded the River deep into
the group and individual consciousness.
...
The life of the River became inseparable from
the life of the people, and each took the name
of the other.
The water has assumed a religious
significance. The Waikato was addressed in
prayer and oratory as a thing with a life and
aura of its own; the spirits of the dead were
believed to mingle and move with its currents;
the people and their characteristics were
described in proverbs in terms of the Rivers
features; and its stretches and bends were
populated with guardians called Taniwha who
showed themselves and intervened with
human affairs when signposts of a
supernatural order were needed. The River
became a source of spiritual as well as
physical cleansing.
[76] Overall, Mr Katipas concerns centred around the

various undesirable things being put into the Waikato River,
including sewage, fertiliser run-off, tip leachate and the
Anchor discharges, and he deposed that these things are
offensive to the Waikato people and their ancestors. He
stated:
I want to see users of the river responsible for the
long term health of the river. They should not just
29 Ko Taupiri te maunga
Ko Waikato te awa
Ko Te Wherowhero te tangata
He piko he taniwha he piko he taniwha.
(Taupiri is the mountain, Waikato is the river, Te Wherowhero is the chief, On every bend there is a chief, on every bend there is a chief.)
223
[79] Mr Solomon also explained that for Waikato-Tainui,

the Waikato River means the whole river, including the
banks, beds, waters, streams and tributaries, vegetation and
fisheries, flood plains and metaphysical being. He too
indicated that the river is an ancestor, and can be regarded
as the mother of the Waikato-Tainui people. Part of the
special relationship with the river is the kaitiaki status of
the Waikato-Tainui to the river, and Mr Solomon gave
evidence which demonstrated that this responsibility is
taken seriously, and includes financial and time
commitments put into protecting the Waikato River.
Water abstraction
[82] By their notice of appeal the appellants sought to
have the water permits cancelled and the abstraction
application declined. However at the appeal hearing
counsel for the appellants announced that their concerns
related to the quantity of the water to be taken, whether
this has been reliably forecast by the applicant, and whether
the intake velocities would have the effect of trapping fish.
The appellants were concerned that, in order to minimise
impacts on the river, the amount to be taken should be
confined to that which is absolutely necessary.
[80] The physical aspects of the river as a traditional and

important source of food and other resources (notably
vegetable matter such as flax and medicinal plants) were
described by Mr Puke, Ms Parsonson, Mrs Rawiri, Mr
Katipa and Mr Solomon. These witnesses described the
overall decrease in the clarity and quality of the river, the
diminution in the variety of fauna and flora species, and
the decline in the quality, quantity and types of the fish
and eels that remain in the river. Mr Katipa also described
the various historical economic aspects of the special
relationship to the river, including flax harvesting, fishing
and dairy farming, and Ms Parsonsons evidence supported
this.
[83] Accordingly we have to consider whether there

would be adverse effects on the environment from the
proposed taking of water from the river in two respects :
the rate of abstraction, and effects on fish of the water
intake.
Rate of abstraction
[84] Anchor Products currently holds a permit to take
from the Waikato River 33,000 cubic metres per day at an
abstraction rate not to exceed 500 litres per second. In
practice the abstraction is in the order of 28,000 cubic
metres per day.
F
EFFECTS ON THE E NVIRONMENT
[85] By its decisions on the current applications the

Regional Council granted a water permit to take up to
32,000 cubic metres per day, and to take up to 10,000 cubic
metres per day of that for the cogeneration plant. Following
reduction in the capacity of the cogeneration plant, only
5,000 cubic metres per day is now sought for that purpose.
The total abstraction sought is consequentially reduced
from 32,000 to 27,000 cubic metres per day.
Basis for decision

[81] Our consideration of the appeal is to be by full
rehearing of the resource consent applications 30 . Section
104(1) of the Resource Management Act 1991 governs
consideration of such applications. Subsection (1) of that
section directs that, subject to Part II, in considering a
resource consent application the consent authority is to
have regard to various matters listed in the subsection.
Making that direction subject to Part II implies that the
duty is to yield to the provisions of that part where there is
a conflict between them. We have therefore considered
whether there is anything in Part II which would conflict
with our having regard to the relevant matters listed31 . No
party suggested that there is, and we have found none. We
have therefore to have regard to such of the matters listed
in section 104(1) as are relevant to the facts of this case.
The first of them is any actual and potential effects on the
environment of allowing the activity32 . A number of effects
were raised in the appeal hearing, and we now address
them.
[86] A Regional Council resource officer, Mr HFX

Keane, deposed that an abstraction rate of 32,000 cubic
metres per day is equivalent to less than 0.3% of the lowwater flow of the river at that point, and would not
significantly affect other river users or the river ecosystem.
The permits granted limit the rate of abstraction to a
maximum of 500 litres per second with an maximum intake
velocity of 0.15 metres per second. Mr Keane deposed that
the present intake velocity had been measured by the
Council and recorded at 0.1 metres per second.
[87] Of the four members of Tainui who gave evidence,
only Mr Solomon referred directly to, and expressed a
specific concern about, taking water from the river. It was
30 Fleetwing Farms v Marlborough District Council [1997] NZRMA 385, 391-2; 3 ELRNZ 249, 257-8; Minister of Conservation v Whangarei
District Council Environment Court Decision A131/97, page 3.
31 See Application by Canterbury Regional Council [1995] NZRMA 110,126; McIntyre v Christchurch City Council [1996] NZRMA 289, 291; 2
ELRNZ 84, 88.
32 Resource Management Act 1991, section 104(1)(a) (as substituted by section 54 of the Resource Management Amendment Act 1993).
224
his evidence that Waikato-Tainui are offended to see the

waters of their river being depleted. He reported their
perception that there had been no conscious effort on the
part of the applicant to reduce the quantity sought to be
taken. However he accepted that Anchor Products had
reduced quantity of water to be taken as a result of the
reduction in the size of the cogeneration plant.
be significantly less than needed for the process. We

suppose that Mr Hedglands assessment had overlooked
the matters referred to by Mr McCowan. In any event
Anchor Products would be restricted to taking the quantities
authorised.
[92] We find no basis in the evidence for concluding that
the proposed abstraction, as such, of water from the river
would have any adverse effect on the environment.
[88] Mr Hedgland gave the opinion that the water

abstraction quantity for which consent had been granted
is considerably less than that which would be required for
the proposed process. He commenced with the hypothesis
that there must be a balance between the quantities of water
taken and water discharged, and assumed that the difference
must be accounted for by the discharge of steam. By
accepting a total discharge figure for waste water,
condensates and cooling water of 16,420 cubic metres per
day and deducting that figure from the total water take
figure of 32,100 cubic metres per day, Mr Hedgland
concluded the difference of 15,680 cubic metres per day
represented the loss by discharge as steam. By adding this
loss figure to the total waste-stream discharge of 26,540
cubic metres per day, Mr Hedgeland predicted that in fact
a total water-take of 42,200 cubic metres per day would
be necessary.
Effects of intake on fish

[93] Mr Hedgland gave evidence about the design and
shape of the inlet structure, the intake water velocity, and
the potential to entrain adult and larval fish. He stated that
a typically accepted velocity guideline to prevent larval
fish entrapment is 0.15 metres per second, and that this
had been the figure set by the Regional Council as a
condition of the consent. The witness deposed that present
and future flows would require that velocity to be exceeded
by a considerable amount.
[94] Mr Keane briefly described the intake structure and
gave the opinion that although it has the potential to entrap
aquatic biota, trout fry and fingerlings are reasonably well
protected by a 3-millimetre mesh, and most fish are able
to avoid entrainment with intake velocities not exceeding
0.15 litres per second. Mr Kennedy observed that velocities
can be measured to show compliance with the council
condition.
[89] Mr McCowan deposed that Mr Hedglands

assumptions were not valid. He explained that the water
required to make up daily steam losses was treated to be
demineralised and is therefore expensive to produce. It was,
he testified, in practice restricted to no more than 20% of
the quantity of steam produced. By reference to figures
regarding steam production, Mr Mc Cowan had calculated
the maximum required for such make-up water would be
845 cubic metres per day. He also drew attention to the
fact that water evaporated from the milk coming on site
daily would amount to some 10,000 cubic metres per day
and would form part of the low BOD discharge stream
included in the total waste-stream discharge of 26,540
cubic metres per day.
[95] We record that Anchor Products accepted the

abstraction rate and velocity limits imposed by the
conditions of consent; and that the conditions require
monitoring of both intake velocities and abstraction rates.
In the light of our finding about the quantity to be
abstracted, the basis for Mr Hedglands doubt about the
ability to meet the velocity limits is eliminated.
[96] We find that the conditions meet the concerns of the
appellants, and do not accept that there would be any
adverse effect on fish or any other element of the
environment arising from taking water through the
proposed intake structure.
[90] We understand the concern of the appellants that

abstraction of water from the river should be limited to
quantities needed, and that efforts should be made by
industries such as Anchor Products to economise in the
amounts taken. In this case, Anchor Products has proposed
the abstraction consent be reduced to a site limit of 27,000
cubic metres per day, which is less than the present usage,
and 6,000 cubic metres per day less than the existing
consent. That reflects an appropriate attitude to economical
use of the resource.
Constituents of the waste stream prior to treatment

[97] The resource consent 33 granted for discharge of
contaminants included
(i) to discharge up to 31,000 cubic metres of treated
dairy factory wastewaterand cooling water per day
at a maximum rate of 350 litres per second; and
(ii) to discharge up to 3360 cubic metres of factory
site stormwater per day at a maximum rate of 2800
litres per second,
[91] Having considered the evidence of Mr Hedgland and

that of Mr McCowan, we are not persuaded that the
abstraction quantity of 27,000 cubic metres per day would
33 Discharge permit 970032.
225
both to land (in circumstances where it may enter

groundwater) and then to the Waikako River...
waste streams are to be collected and tankered from the

site for off-site use.
[98] This consent is the main discharge permit. It includes

up to 8,000 cubic metres per day of cooling tower
blowdown water, cogeneration plant wastewater,
condensate and stormwater. This figure however was based
on the original cogeneration proposal which was for a plant
that generated 150 megawatts of electricity. The reduction
of the capacity of the cogeneration plant to 45 megawatts
means that the discharge permit required for the
cogeneration plant can be reduced by 1,500 cubic metres
per day to 6,500 cubic metres per day, with a consequential
drop in the total site discharge from 31,000 cubic metres
to
28,500
cubic
metres
per
day.
[103] Of the waste streams to be discharged, the waste

stream characteristics and loads 36 would be
Wastewater
Condensate/
Low BOD
Fat(kg/d)
5,770
14,914
430
3596
20,770
175
12
17
Effluent Parameter:
pH
BOD5 (24 hour composite)
BOD5 (mass load discharge)
Suspended solids (TSS
24 hour composite sample)
Suspended solids (TSS
mass load discharge)
Total Phosphorus
Total Kjeldahl Nitrogen
Turbidity
(a) Waste water - effluent from the milk reception

area, separation plant, clean-in-place, evaporators
and dryers.
(b) Condensate/Low BOD 5 - cooling water blow
down and condensates.
(c) Stockfood - separated solids/sludge tankered
off site.
(d) Whey - separated milk waste generally tankered
for offsite use or disposal.
(e) Buttermilk - separated and generally tankered
for offsite use or disposal.
Minimum Criteria:
6 to 9
< 50 g/m 3
< 2,500kg/day
< 100 g/day
< 1,550 kg/day
< 5 g/m 3
< 5 g/m 3
< 50 NTU
[105] At an early stage in the assessment of environmental

effects of the proposal, Anchor Products advisers had
consulted with the Huakina Development Trust, which was
the environmental arm of the Tainui Maori Trust Board
and which had the mandate to address all resource
management issues for the Waikato iwi. The subject of the
consultations had included disposal of wastewater from
the treatment plant in a way that would meet the cultural
requirements of the tangata whenua. The Huakina
Development Trust advised that the existing discharge pipe
in the river should not be used, and recommended that
instead two gully systems on the Anchor Products site
should be used. As a result of the discussions with the
Huakina Development Trust and with Nga Marae Toopu,
a design was developed for discharge of treated wastes,
stormwater, and cooling water to an infiltration bed at the
head of the gully, from which water would then pass into
the gully, which is to be lined with concrete and a channel
filled with rocks and weirs, and would lead to a specially
designed submerged rock-filled conduit discharge
[101] The final streams can be summarised as

5770 cubic metres per
day
20770
345
70
1000
27,955 cubic metres per
day
[102] Of those waste streams, only the treated wastewater

and the condensates and low BOD streams would be
discharged to the Waikato River through the southern and
northern gullies on the Anchor Products site. The other
34
35
36
37
TKN(kg/d)
[104] The performance of the wastewater treatment plant

would need to produce effluent which meets the following
minimum requirements
[100] There are five different categories into which the

waste streams may be divided, but not all of these would
pass through the new waste-water treatment plant. The five
categories can be summarised as follows:
Condensate/Low BOD
Stockfood
Whey
Buttermilk
Total
COD(kg/d) 37
Content of the discharge to the river
[99] The waste stream from the proposed capacity

expansion would comprise a combination of various
process wastewaters and wash waters, desludges and
condensates, originating from the facilitys frozen cream,
AMF34 /AMMIX35 , fractionation and milk-powder plants.
Wastewater
Flow(m 3/d)
Anhydrous Milk Fat

Ammix butter : AMF further processed by Scrape Surface Heat Exchange (SSHE).
After completion of construction.
The above figures are shown in terms of COD (chemical oxygen demand) which is the test commonly applied in the dairy industry to characterize
waste strength. The BOD 5 can be interpolated from these COD values as BOD5 is typically 65-70% of the COD value.
226
structure, discharging to the Waikato River. It was

explained that the rocks would represent Papatuanuku, and
that would meet the cultural requirements of the tangata
whenua.
the top end of the gully where it will contact rocks in an

infiltration area at the head of the gully. The flow would
pass over and around rocks, which in practice would reduce
the depth of the flow over the surface of the rocks to
considerably less than 70 millimetres.
[106] The special features incorporated in the design in

recognition of tangata whenua concerns included:
[110] The extent of re-aeration of the flow would depend

on the depth and the velocity of the flow. As the flow travels
over the rock surfaces, the shallow depth of the flow, and
its turbulent nature, would enhance re-aeration of the
discharge. Mr G C Venus, a consulting environmental
scientist, gave the opinion that this would ensure that
odours and associated nuisances would not arise due to
the development of anaerobic or stagnant conditions.
(1) Initial infiltration system - to increase contact

of treated wastewater with land.
(2) Southern gully system to receive treated
wastewater and provide for further contact
of treated wastewater with land.
(3) Erosion protection adjacent
Mangaharakeke pa site
to the
[111] Elevated levels of BOD can result in oxygen

depletion and the occurrence of odours. Tests were made
using a standard model to indicate characteristics of BOD
in freshwaters and showed that, under worst-case summer
conditions with no heat dissipation of the wastewater and
no re-aeration, the flow would still have a dissolved oxygen
content of approximately 2.5 milligrams per litre. Mr Venus
gave the opinion that this would be high enough to ensure
that anaerobic conditions would not arise, but in any case
re-aeration would ensure that actual dissolved oxygen
concentrations would be increased above those predicted.
(4) Northern gully system to receive stormwater

and cooling water and provide further contact
of that water with land.
(5) Provision of the rock-filled conduit to ensure
that the discharge does not take place though
a pipe structure.
(6) Cooling water monitoring and management
to ensure that treatment chemical
concentrations meet required standards at all
times. (This includes provision for diversion
of cooling water for treatment if necessary.)
[112] The witness deposed that in practice only more

complex, less easily degradable organics would remain in
the treated wastewater, and these will require days to exert
any significant BOD. He concluded that there would not
be sufficient time for significant oxygen depletion to occur
during passage from the treatment plant to the discharge
conduit, and that nuisance odours and associated problems
would not arise in the gully system.
[107] A comprehensive evaluation was made of the quality

of wastewater to be discharged into the gully system to
ensure that no adverse effects would arise from
performance of the gully system, or from the ultimate
discharge to the river.
[108] The gully system was designed to provide a
hydraulic connection between the plant discharge point
and the discharge structure. The design was based primarily
on hydraulic considerations to ensure that the quality of
the water in the gully system would be maintained at a
high level consistent with the quality of effluent discharged
from the wastewater treatment plant.
[113] A final safeguard would also be available through

the use of additional aeration of the treated wastewater at
the treatment plant, if required, to ensure dissolved oxygen
concentrations are maintained.
Phosphorus
[114] The condition imposed on the discharge permit
relating to concentration of phosphorus in the
discharge is:
[109] The treated wastewater, which would be discharged

at a rate of up to 5,770 cubic metres per day, would pass
through the gully at a depth of about 70 millimetres. It
would have high quality, consistent with anaerobic, aerobic
and nitrification/denitrification unit operations
incorporated in the plant. If the dissolved oxygen
concentration in the wastewater entering the gully system
is too low, anaerobic conditions might arise which in turn
could lead to the occurrence of odours. Based upon the
performance criteria characteristics of this type of treatment
plant configuration, the dissolved oxygen concentration
in the southern gully system is predicted to be in the order
of 4 milligrams per litre. The dissolved oxygen
concentration of the treated wastewater would be enhanced
by aeration as it travels through the gully system. The
discharge from the treatment plant will be distributed to
(vii) the total phosphorus concentration of the

discharge as determined from a 24 hour composite
sample shall not exceed 20 grams per cubic metre
for the first 24 months from the exercise of this
consent. Thereafter, the total phosphorus limit
for the discharge may be reviewed as provided
for in condition 21
[115] At the appeal hearing the Regional Council proposed

this condition instead:
4(vii) The quarterly average mass load of total
phosphorus in the final discharge as
227
determined from 24 hour composite samples

shall not exceed 25 kilograms per day, nor
shall the maximum load exceed 35 kilograms
per day.
For the purpose of this condition each
quarterly period shall begin on 1 January, 1
April, 1 July and 1 October each year.
opinion that as designed, the outlet would not have

sufficient hydraulic capacity, and as a result there would,
at times, be bankside discharges. That was contested by
Mr J M Crawford, whose evidence specifically addressed
the hydraulic aspects of the gully systems and the final
discharge structure. Like Mr Hedgland, Mr Crawford is
an experienced professional engineer specialising in water
and environmental engineering. Mr Crawford explicitly
disagreed with Mr Hedglands opinion about the hydraulic
capacity of the proposed discharge facility.
[116] Anchor Products announced that it would accept a

limit on phosphorus provided it can be linked to remedying
or mitigating an adverse effect on the water quality of the
Waikato River that is attributable to its discharge. It
contended that no witness had been able to point to any
credible adverse effect due to the applicants proposed level
of 57 kilograms per day in its discharge. At this level the
phosphorus would represent about 5 to 6% of the total
phosphorus in the river. However that amount of
phosphorus would be well below the amounts in other
discharges to the river, such as from the Hamilton City
Councils sewage treatment plant. The respondents water
quality scientist agreed that even the latter discharge would
have only minor effects which, he also agreed, would be
negligible and undetectable.
[123] Mr Crawford stated that the hydraulic designs and

concepts are preliminary at this stage. He considered that
it would not be appropriate to complete full detailed designs
at this stage of the project development, but sufficient to
have progressed the design to ensure that the concepts will
work and can be adequately engineered at the detailed
design stage.
[124] In general the northern gully would convey
discharges not requiring specific biological or chemical
treatment, and the southern gully would receive the treated
wastewater effluent from the proposed multi-stage
wastewater treatment facility via a launder channel
discharging to the top of the gully.
[117] Counsel for Anchor Products also pointed out that

Mr Keane had confirmed in cross-examination that the
change of approach by the respondent on this matter was
due to policy and not due to any identified adverse effect
on the River from Anchors proposed discharge and the
phosphorus content in that discharge.
[125] For the northern gully, the design consists of a diffuse

discharge area (cooling water cascade) at the top end of
the gully to which low BOD condensates and cooling water
waters would be discharged, and gabion weirs constructed
at intervals along the gully floor, reducing the flow velocity
to prevent scour of the gully floor. Stormwater would enter
at approximately the level of the gully floor, flowing by
gravity from the diverter station.
[118] The allowable phosphorus figures in the discharge

permit are an obvious mistake. No one contended otherwise
and the applicant expressly disavowed any intention of
ever seeking such a high discharge. The amount of
phosphorus contained in the proposed discharge has not
changed. Anchor Products did not dispute that the discharge
permit needed to be amended.
[126] The weirs would provide aeration to the flows as

they cascade over them, and would provide some additional
cooling of the flows. Mr Crawford deposed that for the
purpose of design, a conservative approach had been
adopted which assumed that no cooling would occur in
the gully system, winter or summer. The gabion baskets
would be permeable to water and would allow flow through
them as well as over them. Any retention period would be
reasonably short, but long-term ponding would be
prevented by the porosity of the gabions.
[119] The main potentially adverse effects on the River

due to phosphorus identified by witnesses are growth of
phytoplankton in the lower reaches of the river and other
nuisances to those taking water supplies from the river.
No link was established between the Anchor discharge and
any adverse effect or nuisance in the river except as a
contribution to the cumulative load of phosphorus in the
river.
[127] The southern gully would convey wastewater flow

from the treatment plant to the confluence of the two
gullies. The application of wastewater flows to the gully
will be by way of a cascade system. This would serve to
break up the flow enhancing dissolved oxygen
concentration. The fall would be approximately 5 metres.
[120] The effect of phosphorus in the river on

phytoplankton is addressed later in this chapter.
Capability of the discharge facility
[121] We have already described the proposed facility for
discharging treated wastewater, and the reasons why that
facility was adopted instead of a more conventional
discharge pipe, similar to that currently in use.
[128] As with the northern gully, the option exists to

control the flow velocities down the gully using a series
of gabion baskets as weirs across the gully. The gabions
are highly porous, and would allow a certain proportion
of the flow to pass straight through, though some upstream
ponding would occur. Mr Crawford deposed that the
[122] It was the case for the appellants that the concept of
the rock-filled culvert is flawed. Mr Hedgland gave the
228
gabions have been designed to prevent flow around the

ends, and if ponding were to occur to a hypothetical depth
of 500 millimetres, then ponding of 50 cubic metres would
occur with an average retention time of approximately 13
minutes and, at worst, in the order of 30 minutes.
driving head of at least 2 metres would be available through

the membrane for 90% of the time.
[135] Mr Crawford acknowledged that periodic flooding
will occur in the Waikato River. He deposed that the
membrane outlet would become hydraulically less effective
as river levels increase, due to the decrease in hydraulic
gradient available through the membrane. Much greater
dilution of the cooling water at high river levels, combined
with effective mixing in the flow through the vegetation
on the berms, would result in minimal temperature increase
in the river, and the need for the membrane would disappear
while very high river levels prevail. The membrane would
be buried over most of its length and scour calculations
indicate there will be no general scour at the site in a flood
of up to a 100-year return period. Protection against local
scour at the membrane would be provided by rock-filled
mattresses.
[129] The proposed final stage of waste treatment is a

sequencing batch reactor system. This discharges at high
flow rates during each decanting phase of the treatment
cycle. Mr Crawford testified that for this reason, flow
balancing would be required.
[130] Cooling water, stormwater and wastewater effluent
would combine at the confluence of the two gullies in a
mixing zone some 60 metres upstream of the rivers edge.
The combined flow would then pass though a concrete
liner to guard against erosion. That channel would
discharge in a diffuse manner to a rock-filled trench which
would continue out to discharge into the river beyond the
immediate littoral zone. The channel would be constructed
of a size that would cater for at least a 20-year return period
storm event, and flows in the channel would be
electronically monitored.
[136] The selection of appropriate design criteria for the

permeability and porosity of the membrane infill was
currently under investigation to finalise detailed design.
However Mr Crawford deposed that he was confident that
the selected values are conservatively selected to ensure
that the membrane provides the required hydraulic capacity
and self scouring velocities within the membrane.
[131] A submerged rock-filled discharge would be

constructed to convey discharge flows from the gully to
the discharge area on the river bed. The trench would begin
immediately downstream of the concrete channel, and
would receive flows dropping vertically over large rocks
with large intermediate void spaces.
[137] There was no dispute that river flooding and

sedimentation could result in a lessening of the hydraulic
effect of the outlet. In cross-examination Mr Hedgland
agreed that for bankside discharge to occur, a variety of
factors would need to coincide. The factors that would have
to coincide for that to happen are:
[132] The rock-filled discharge structure has been

designed to ensure that the point of discharge to the river
is beyond the normal littoral zone, and that the discharge
temperature should be at no more than 3 degrees above
the ambient.
(a) the river being in flood (causing loss of head).

(b) debris and sediment from the river blocking
the outlet.
(c) the discharge structure not being maintained
resulting in a build up of sediment (clogging).
(d) the dairy factory discharge being at maximum
design flow (bearing in mind a contingency
flow of 6,000 cubic metres per day and a
safety factor of at least two would reduce this
maximum flow).
[133] The bathymetry of the river adjacent to the discharge

point shows a ledge which would not be suitable as a long
term discharge point, so the discharge has been designed
to be 15 metres from the bank, where the depth is at a
maximum. At that point the discharge would mix with a
flow of at least 24 cubic metres per second before the
discharge plume spreads to meet the bank.
[138] When asked in cross-examination whether there was

any factor which could not be solved by engineering design
or proper maintenance, Mr Hedgland agreed that
engineering design and maintenance to comply with the
discharge conditions would avoid such potential problems,
and that there are engineering solutions which would deal
with these factors and would enable the applicant to meet
the requirements of the discharge consent.
[134] As the discharge water may be at a higher

temperature than that in the river littoral zone, it would
tend to rise out of the trench once under the river water
level if it were not prevented from doing so. It would be
prevented by wrapping the liner over the top of the rocks
and placing earth ballast on this, ensuring that the discharge
water is forced down to the deeper discharge point. The
trench would have a size that would cater for maximum
discharges of wastewater and cooling water. It would not
have capacity to convey design stormwater flows, although
a significant amount of stormwater would pass through it.
Stormwater flows in excess of the trench capacity would
be conveyed over Reno mattresses above the trench, which
would armour the river bank and trench against scour. A
[139] Dr McCabe claimed that bankside discharges would

result in significant adverse environmental effects.
However he relied on Mr Hedglands predictions, and had
no independent evidence to indicate that they would occur.
Mr Kennedy, gave the opinion that there would be no
adverse effects of the discharge on aquatic biota.
229
quality standard for undesirable biological growths38 . The

Ministry recommends that in waters used for water supply,
irrigation or industrial abstraction the quantity or biomass
of phytoplankton 39 should not exceed 0.020 grams per
cubic metre, to reduce the frequency with which filters in
water intakes become blocked.
[140] On the issue raised about the capability of the

discharge facility we find that :
(a) River flooding concerns are not significant
as the need for the membrane diminishes as
the water depth and velocity increases over
the berm and over the littoral zone of the river;
[146] The Waikato River is heavily enriched with plant

nutrients. The sources of nutrients are both non-point such
as rural run-off and contributory streams and rivers, and
point sources such as Anchor Products wastewater
discharge. The water quality scientist who gave evidence
for the Regional Council, Mr W N Vant, estimated that
non-point sources account for up to about 70% of the total
nutrient load in the river, and point sources account for
about 30%.
(b) the effects during river floods would be minor;

(c) there would either be no effects from
sedimentation, or any effects could be
remedied by flushing or cleaning out the
structure;
(d) concerns raised by Mr Hedgland could be
fully addressed during the final detailed
design.
[147] During 1996-98 the average load of total phosphorus

discharged to the river in the Anchor Products wastewater
was about 25 kilograms per day. The total load of
phosphorus in the river immediately upstream of Anchor
Products at that same time was about 1020 kilograms per
day. The existing Anchor Products discharge therefore
increased the total phosphorus in the river by about 2 to
3%. The increase in phosphorus levels in the river due to
that discharge would, in principle, increase the
phytoplankton biomass in the river. However, Mr Vant
accepted that the overall effect of the phosphorus which is
currently discharged to the river in the Anchor wastewater,
is minor.
Effects of phosphorus in river water on

phytoplankton
[141] Phosphorus in the discharge from the Anchor
Products plant would contribute to the total load of
phosphorus in the river. We have now to consider whether
there would be any actual or potential effect on the
environment of the phosphorus content in the river
supporting high concentrations of phytoplankton.
[142] Phytoplankton are freely-floating microscopic
bodies which live in most water bodies. They respond to
the addition of the important plant nutrients, nitrogen and
phosphorus. Phytoplankton generally support the healthy
functioning of aquatic ecosystems. However, high
concentrations of nutrients often support high
concentrations of phytoplankton, and excessive numbers
of phytoplankton cells (often referred to as phytoplankton
blooms) can cause problems for water supplies,
aquaculture, ecosystem protection, and recreational and
aesthetic enjoyment.
[148] Mr Vant also attested that, of the two plant nutrients,

levels of nitrogen have tended to decrease during the past
decade while levels of the other, phosphorus, have tended
to increase. The fact that chlorophyll a concentrations have
tended to increase suggests that they are largely unaffected
by the decrease in nitrogen, but instead they increased in
response to the higher levels of phosphorus. In his opinion
the overall increase in both total phosphorus and
chlorophyll a during the past decade represents a
deterioration in these aspects of river water quality.
[143] Several water quality classes in the Third Schedule

of the Resource Management Act 1991 contain a standard
which requires that:
[149] The discharge permit granted by the Regional

Council allowed for a total concentration of 20 grams per
cubic metre of phosphorus in the Anchor Products
discharge. That would be equivalent to 620 kilograms of
phosphorus per day. It was common ground that the limit
of 20 grams per cubic metre had arisen from an error, and
no party sought to support allowing that much phosphorus
in the discharge.
There shall be no undesirable biological growths

as a result of any discharge of a contaminant into
the water.
[144] Wastewater discharges which contribute large loads

of plant nutrients to a waterbody need to be assessed to
determine whether they cause undesirable biological
growths.
[150] Mr Vant gave the opinion that such an increase in

the load of phosphorus would have the potential to support
[145] The Ministry for the Environment has prepared

guidelines for the interpretation and application of the water
38 Ministry for the Environment 1992: Guidelines for the control of undesirable biological growths in water: Water quality guidelines 1.
39 The quantity or biomass of phtoplankton is measured as the concentration of the photosynthetic plant pigment chlorophyll a.
230
substantially-increased blooms of phytoplankton in the

lower reaches of the river, including nuisance and toxic
types of phytoplankton, especially species of blue-green
algae or cyanobacteria, which can cause serious water
problems for water users including toxicity and unpleasant
tastes and odours in water supplies, blockages of watersupply intake filters and screens, and unsightly surface
scums.
blooms of blue-green algae had been based on the

erroneous premise that Anchor Products had intended to
discharge phosphorus at the rate of 20 grams per cubic
metre set in the resource consent condition.
[155] In having regard to the possibility of any actual or
potential effect on the environment from phosphorus in
the proposed discharge, we have to include any cumulative
effect which arises over time or in combination with other
effects 40 . We accept that if the total load has an adverse
effect on the environment, then even a relatively small
contribution to the phosphorus load of the river should not
be ignored.
[151] Blooms of blue-green algae have generally been

uncommon in the Waikato River. However, earlier this year
blue-green algae bloomed at Lake Maraetai and Mr Vant
testified that there is now evidence that phytoplankton
growth in the river can be limited by the availability of
phosphorus as well as nitrogen. He therefore considered
that the aim should be to reduce both types of nutrient, not
just nitrogen. To that end he considered that the consented
load of phosphorus in the proposed Anchor Products
wastewater is much too high, and should be reduced
downwards. He considered that the figure should be no
more than about 11 kilograms per day on average, but he
conceded that in the meantime the average load of
phosphorus should be limited to the load in 1996-98,
namely about 25 kilograms per day, and he supported a
condition proposed by Mr Keane to that effect.
[156] We find that a total phosphorus load that, perhaps

in combination with the nitrogen load, can result in
formation of blue-green algae blooms in the river is itself
an effect on the environment, and it is an effect that is
adverse, potentially if not actually, in that the blue-green
algae can be toxic.
[157] Because of the difficulty of controlling non-point
source discharges of nutrients41, control of point-source
discharges is the more significant, and all industries should
be expected to take a share in reducing the total load.
[152] In cross-examination Mr Vant agreed that, in

evidence he had given on a resource consent application
on the Hamilton City sewage treatment plant discharge,
he had testified that the sewage plant discharge contributed
about 19% of the phosphorus in the lower Waikato River;
that that contribution had no adverse effect on toxicity of
water supplies; that he had no information on resulting
blockages, or any specific tangible adverse effects on the
river; and that the effects of increasing the phosphorus
discharge from that source would be negligible and
undetectable. He also testified that the contribution by the
Anchor Products discharge to the total nutrients in the
Waikato River at the Mercer Bridge is less than 2%, and
smaller than the month-to-month variability in the
phytoplankton biomass in the river.
[158] It will be necessary to decide what limit should

reasonably be imposed on the proposed Anchor Products
discharge, to avoid or mitigate an adverse effect on the
environment from the total phosphorus load to which its
discharge would be contributing. Anchor Products have
accepted that the relevant condition should be subject to
review after 24 months, because the Regional Council is
reviewing its policy in relation to the long term
management of nutrients in the Waikato River. We consider
that to be a significant concession.
[159] Leaving aside the determination of the limits in the
condition, it is clear that appropriate limits can be imposed
on the amount of phosphorus contained in the proposed
discharge. We find that there would be a potential adverse
effect on the environment of the Waikato River of allowing
the proposed discharge containing phosphorus at a
concentration of 20 grams per cubic metre, and that with
the imposition of an appropriate limit on the phosphorus
content, that effect would be no more than minor.
[153] Mr Vant produced the decision of the Waikato

Regional Council on the Hamilton City sewage works
discharge, which required the consent-holder to implement
nutrient removal in 5 years, although we were given to
understand that the Hamilton City Council is appealing to
the Environment Court about that (among other aspects of
the decision).
Relationship of Maori with the river

[160] We have considered the relationship of WaikatoTainui with the Waikato River, particularly in historical
and traditional terms, and we have considered the effects
on the river in physical terms, of the proposed taking and
[154] Mr Kennedy observed that there was no evidence

to suggest that water supplies are adversely affected by
toxic phytoplankton; and that Mr Vants evidence about
40 Resource Management Act 1991, section 3(d).

41 See, in that respect, Te Awatapu o Taumarere v Northland Regional Council, Environment Court Decision A 34/98.
231
discharge. In considering actual and potential effects on

the environment of allowing the proposed activity, the term
environment is given an extended meaning42
[166] It was Mr Solomon who stated that his evidence

would address the appellants position on the application.
He testified that it offends Waikato-Tainui to see the waters
being depleted and polluted by users of the river. Any
effluent or pollutants which are discharged into the river
cause serious offence to Waikato-Tainui and constitutes
an abuse of their ancestor, and an offence against and
ignores their kaitiakitanga responsibilities.
are affected by those matters.
[167] The witness gave the opinion that the Anchor

Products proposal would further desecrate the waters of
the river and consequently further damage the mana of
Waikato-Tainui and their special relationship with the river.
He asserted that there is no mitigation available to remedy
this damage or its impact on the river.
[161] We have therefore to have regard to effects of

allowing the proposed activities on the cultural conditions
which affect the Maori community, and in particular how
the effects of the proposal may have an impact on the
present and future relationship of Waikato-Tainui with the
river.
[168] On the effects of the proposal on the relationship of

Maori with the river, even the perception of contaminants
flowing from the site into the river would cause offence.
In that regard, Mr Solomon deposed, there is not a need
for discernible physical adverse effects, nor would it
depend on any particular concentration of contaminants,
but any amount of contamination would constitute a serious
adverse effect to the relationship of Waikato-Tainui, or at
least some of them, with the Waikato River.
[162] Mr Puke in his evidence described the impact of

development, the destruction of sacred sites and food
resources as having had both tangible and intangible
effects, and as having been an assault on the spirit and
mind of his people.
[163] Mr Rawiri testified that the rivers spiritual and
healing powers are as important today as they were in the
past; that the Waikato River is still a source of spiritual
well-being; and that the building of factories, the spilling
of sewerage and rubbish, and the silt coming from erosion
have badly harmed the health of the river which is their
ancestor.
Summary of effects on the environment

[169] We can now collect our findings on the actual and
activities that would be authorised by the resource consents
applied for by Anchor Products.
[170] We have found no adverse effects on the Waikato
River from the proposed taking of water from it, nor
adverse effects on fish from entrainment in the intake
structure. The biochemical oxygen demand of the treated
wastewater would, even in worst-case conditions, leave a
dissolved oxygen content in the discharge, and would not
have an adverse effect on the river. There was no issue
about adverse effects of other contents of the discharge
save for phosphorus, concerning which it was common
ground that the Regional Councils condition has to be
replaced. There was not agreement about the limits on
phosphorus which should be substituted, but appropriate
limits can be imposed so that the effect on the river of that
contribution to the total phosphorus load would be no more
than minor. The discharge structure itself was specifically
designed in consultation with the environmental arm of
the Tainui Maori Trust Board so as to respond to the cultural
requirements of the tangata whenua. The appellants claim
that it would not have sufficient hydraulic capacity was
[164] Mr Katipa spoke of going to the river to be blessed

and healed of ailments to the body, to be baptised and
spiritually cleansed and to pray to the Almighty, such is
the sacredness of the Waikato. He also listed undesirable
thing being put into the Waikato and attributed
responsibility of the users to see that the quality of the
water is improved. He deposed that to allow polluted waters
to be discharged into the river was an offence to their
ancestors.
[165] The tenor of the evidence of those witnesses was
that, despite the present state of the river (which is
deplored), the spiritual power, sacredness and standing of
the river to Waikato-Tainui remains as strong as in the past.
The effects of the present application were not addressed
by these witnesses. However there was no suggestion that
the Anchor Products proposal would affect this relationship
between Waikato-Tainui and their river.
42 In section 2(1) of the Resource Management Act 1991.
232
not made out, and it is capable of being engineered to

function without adverse effects on the environment. There
would be an adverse effect on the relationship of Maori
with the Waikato river in that many of them they have a
deep spiritual respect for the river, and perceive any
discharge into it as a serious effect, whether or not there is
any discernible physical effect, and despite the design of
the discharge and outfall structure to meet their cultural
requirements.
properly considered, in terms of s 104(3)(b), any possible

alternative methods of discharge, including discharge into
any other receiving environment.
[175] It was Anchor Products case that land disposal of
the wastewater from Te Rapa had been investigated since
1989, and it had been concluded that it is not practicable
at Te Rapa because of operational issues, potential landuse conflicts, and potential environmental and soil stability
effects. In particular it was asserted that there is insufficient
land available of a suitable type near the site, nor any
assurance that Anchor Products would be able to acquire
it or secure the right to dispose of wastewater on it; that
land disposal can cause sodium overload, algal growths,
odour, contamination of surface and groundwater, and
conflicts with other land uses, especially residential.
G
LAND IRRIGATION ALTERNATIVE TO DISCHARGE
[171] Section 104(3) of the Act 43 provides
(3) Where an application is for a discharge permit
or coastal permit to do something that would
otherwise contravene section 15 (relating to
discharge of contaminants), the consent
authority shall, in having regard to the actual
and potential effects on the environment of
allowing the activity, have regard to
(a) The nature of the discharge and the sensitivity
of the proposed receiving environment to
adverse effects and the applicants reasons
for making the proposed choice; and
(b) Any possible alternative methods of
discharge, including discharge into any other
receiving environment.
[176] In section 7.4.3 of the AEE accompanying the

application, land disposal of wastewater had been seen as
an option requiring around 300 hectares of land and
therefore not feasible at this site. In cross-examination,
Mr Venus clarified the reference at this site in the AEE
as being more properly expressed as in relation to the
proposed project.
[177] Mr Venus gave evidence of the consideration which
had been given to alternatives to disposal of discharges to
the river. The only alternative he had considered was to
dispose of treated wastewater to land. He reported that the
New Zealand Dairy Research Institute had conducted
studies on a number of sites in the Waikato region,
including Te Rapa. As a result of these studies it had been
concluded that, after allowance for buffer zones between
adjoining properties, residential facilities, watercourses,
and for areas of steep terrain, a site of approximately 450
hectares would be required for disposal of the wastewater
from the Te Rapa plant to land. Mr Venus considered that
such an area of suitable soils would only be available on
the east side of the Waikato River. Mr McCowan
considered that the only area with suitable soil types and
undeveloped land far enough away from residential
development which could be practically used for waste
water irrigation was about 10 kilometres distant and near
Gordonton on the east side of the river. For this alternative
he anticipated environmental risks present in the length of
pressure pipeline required, in crossing the Waikato River
and in traversing private properties and public roads, and
he foresaw risks of pipe failure and accidental raw
wastewater discharges.
[172] The grounds of appeal include the claim that

acceptable alternative methods are available for waste
water disposal, and that inadequate consideration has been
given to such alternatives by Anchor Products.
[173] Mr Cooper drew attention to matters which should
be included in an assessment of effects on the environment
and in particular 44
Subject to the provisions of any policy statement
or plan, an assessment of effects on the
environment for the purposes of section 88(6)(b)
should include
...
(f) Where the activity includes the discharge of
any contaminant, a description of
...
(ii) Any possible alternative methods of
receiving environment:
[174] Counsel submitted that the consideration of

alternative discharges had not been adequately carried out,
or presented at the appeal hearing, and that it was not for
the appellants to demonstrate that land disposal is feasible
but rather for the applicants to demonstrate that they have
[178] This witness referred to the Anchor Groups

experience with fixed wastewater irrigation systems at
Hautapu, Litchfield, Reporoa and Edgecumbe, and of
43 As substituted by section 54 of the Resource Management Amendment Act 1993, and as if the Resource Management Amendment Act 1997 had
not been enacted : see section 78(5) of that Amendment Act.
44 Resource Management Act 1991, Fourth Schedule, clause 1 (f)(ii) .
233
pressure now coming to bear on the Hautapu site from

urban sprawl and life style development associated with
near by Cambridge. He deposed that Anchors experience
showed that the potential contamination of ground waters
with discharge of nutrients is an ongoing issue which,
because of the potential for land- use conflicts, requires
careful management. He considered that for the Te Rapa
site this would be a very real environmental concern.
[181] Mr Hedgland deposed that the sands of the quarry

in the south-western portion of the Perry site are clean and
highly permeable, and not low permeability Te Kowhai
silt loam as shown on the soil inventory plan in his earlier
evidence. The witness testified that he had confirmed that
with what he described as three simplistic permeablity tests,
which were not intended to be precise, but which
demonstrated that the sand has exceptionally high
infiltration capacity. His evidence was that he had been
told that the sands in the western side of this quarry were
similar to those under the Anchor farm. He said it was his
understanding this farm is some 6 to 7 metres above the
river level and that there is a low permeability silt layer
below the bottom of the farm basin which is underlain by
permeable sands.
[179] For disposal of wastewater to land on the western

side of the river, Mr Venus had considered the potential
for land-use conflicts. Given the proliferation of lifestyle
blocks with higher population densities now occurring to
the north and east of Hamilton, he considered that this area
is becoming less appropriate for large scale land irrigation
systems. During the consent programme Anchor Products
had reviewed the option of disposal to wood lot irrigation,
and it had been concluded that an area of 150 hectares
plus buffer areas would be necessary. Mr Venus testified
that such an area could only be located on the eastern side
of the river. His conclusion was that discharge to the river,
given the high level of treatment proposed and the absence
of associated adverse environmental effects on the river,
was appropriate, in contrast with the disposal by irrigation
option which has a range of practical, economical and
environmental effects which make it less appropriate.
[182] Mr M T Mitchell, a consulting geotechnical

engineer, gave evidence of investigations he had conducted
on the Perry site to determine the sand mining resource
available, and on his extensive experience over 20 years,
concerning sand resources and permeability characteristics
on numerous sites in the immediate vicinity including the
Anchor farm site. He agreed with Mr Hedgland that there
is clear evidence of Horotiu sandy loam and sandy soils in
the immediate vicinity and near by the Anchor site, which
have a high degree of permeability. He also agreed with
Mr Hedglands assessment that there is in excess of 1200
hectares of soils suitable for irrigation near the Anchor
site on the west side of the river. No reliable evidence was
given of the number of properties included within the above
area, or of the areas of holdings, although Mr Hedgland
was of the opinion that many would be of the same order
as the Anchor site. There was no evidence either of the
availability of any such land for purchase, or lease, or for
long-term commitment to wastewater irrigation.
[180] In his evidence Mr Hedgland disagreed with the

evidence of Mr Venus that soils in the vicinity of the factory
site are Te Kowhai silt loam, which has a low infiltration
capacity, and that the more suitable Horotiu Te Kowhai
complex soils are located some distance away. He provided
a copy of part of the New Zealand Land Resource Inventory
Worksheet on which 5 soils-type areas had been
highlighted. This plan shows that the soils of the factory
site and for some 2 kilometres to the north-west, which
includes the south-western part of the Perry sand works
site, are Te Kowhai silt loam, which is described on the
plan as low lying terraces, gley soils, slight wetness and
peaty loam. The balance of the Perry land is notated as
recent pumiceous sand. To the west of the site and in a
band parallel to the State highway the soils are described
as well drained terraces- Horotiu sandy loam.
Immediately to the west again and in part straddling the
railway, an irregular area extending from 3 to 4 kilometres
north and west of the site is indicated as Flat terraces,
mix well drained loams and gley soils - Horotiu - Te
Kowhai complex, described by Mr Venus as suitable from
an infiltration perspective. Across the highway opposite
the application site and comprised of these latter two soil
types there is an area of 80.6 hectares, between the highway
and the railway, owned by the applicants, known as the
Anchor farm, and presently used for dairy grazing. It was
Mr Mitchells evidence that this land had been previously
mined for sand. The fifth soil type identified, Kaipaki peaty
loam, lies west of the railway, from 1 to 3 kilometres west
and south of the site, and is described as Plains and terraces
- organic soils, expect slight wetness.
[183] In considering the area required for a land disposal

option, Mr Hedgland gave evidence of his considerable
general experience of effluent disposal, and referred to joint
trials undertaken by the Meat Research Institute of NZ and
the Forestry Research Institute on a nearby site at Horotiu.
Those trials had included irrigation of both grass pasture
and high density eucalyptus crops and had led to the
conclusion that the irrigation of permeable alluvial sands
adjacent to the river is satisfactory, and that eucalyptus
tree crops are successful in these soils and with the
irrigation of strong wastes.
[184] With regard to the present proposal, the appellants
addressed the alternative of irrigation to land of only the
proposed discharge from the wastewater treatment plant
consisting of 5770 cubic metres per day of treated effluent.
For this flow Mr Hedglands estimates of land areas
required (including buffer zones for various types of land
use) were: for grazed pasture, 316 to 422 hectares; for highdensity eucalyptus wood lot, 170 to 200 hectares; and for
a third option of cut grass crop carried off-site, 172 to 230
hectares. The witness explained that a number of variables
234
come into consideration such as allowable nitrogen

application rates and the hydraulic application rate. In
supplementary evidence he gave further figures based on
an effluent with a nitrogen content of 15 grams per cubic
metre, application rates able to be accommodated on sandy
soils, application for 290 days per year, and an annual
rainfall of 1,200 millimetres. Estimated in that way, the
areas (including buffer zones) for each land-use option
became: grazed grass monitored, 135 hectares;
unmonitored, 263 hectares; trees, 183 hectares; cut-andcarry grass, 79 to 66 hectares. The witness considered that
the latter option could be accommodated on the Anchor
farm site.
conclusion relates to disposal of 5,770 cubic metres per

day of the wastewater flow. However given the sentiments
expressed by Mr Solomon regarding the attitude of
Waikato-Tainui towards river discharges, there must be
some reservation as to whether the full discharge sought
of 28,500 cubic metres per day would not be the more
appropriate figure for disposal to land to meet these
concerns. In cross-examination Mr Hedgland agreed that
his operational experience of disposal to land of dairy
factory wastes was no match for that of Anchor Products.
[189] Having considered all the evidence on this topic (of
which we have given a summary) we find that discharge
of the wastewater to land would be a possible alternative.
There would be considerable practical difficulties, and they
could probably be overcome. If we had found that the
proposed discharge to the Waikato River would have
significant adverse effects on the quality of the water in
the river, or would fail to recognise and provide for the
relationship of Waikato-Tainui with the river, and their
kaitiakitanga in respect of it, then disposal to land would
deserve further consideration. However, we have found
that, with an appropriate limit on the content of phosphorus,
there would not be adverse effects on the river environment
from the proposed discharge; and that the proposal has
been developed and designed specifically to recognise and
provide for that relationship and for the kaitiakitanga of
Waikato-Tainui. We also find that the AEE included the
possible alternative methods of discharge to land as a
receiving environment, as required by the Fourth Schedule
to the Act.
[185] Mr M B Chrisp, a planning consultant called to give

evidence on behalf of Anchor Products, gave evidence
about buffer zones. By Rule 40.5.2 of the Waikato District
Plan, minimum set-backs for land disposal of dairy factory
waste are in general 10 metres from any property boundary,
and 150 metres from residences, schools, halls, marae, and
community facilities. In addition the Regional Council
imposes a minimum set back of 10 to 25 metres from
watercourses as a condition of resource consent.
[186] The Anchor farm site is relatively long and narrow,
is indented by a number of other properties, and has a
watercourse centrally located along its full length with
another side branch which traverse a number of properties
towards the north before discharging to the Waikato River
near Horotiu. Supposing a 25-metre buffer from both sides
of the watercourse (which could well be a likely condition
under the circumstances) and considering the need to
achieve irrigation areas of a practical shape, then even
leaving aside the proposed underpass on part of the site
we could not be confident that the Anchor farm site would
fully accommodate the intensive land-use option on a
reliable long-term basis, even if an off-site user of the grass
was assured.
H
PLANNING INSTRUMENTS
[190] Section 104(1) of the Act also directs that in
considering a resource consent application the consent
authority is to have regard to any of various classes of
planning instruments made under the Act that are relevant.
The relevant planning instruments are the proposed
Waikato District Plan, the proposed Waikato Regional
Policy Statement, and the transitional Waikato Regional
Plan.
[187] The only other land in the vicinity suggested as being

available for irrigation purposes was the Perry property to
the north. Mr Mitchell reported that, based on his
discussions with Perry staff, part of their site could be made
available. However it was Mr McCowans evidence that
discussions with Mr Brian Perry had indicated that they
are not able to agree to disposal of effluent on their property,
primarily because of the risk of contamination of their sand
product. As well there is a proposal for a motorway spur
affecting their property, to accommodate a realignment of
Horotiu Bridge. In cross-examination, Mr Mitchell agreed
he was aware of plans for a major motorway spur dissecting
the Perry land, the route for which Transit were negotiating
with Perrys, but that he believed construction of the
motorway may be up to 20 years away.
Status of the activities

[191] Pursuant to leave granted under clause 17 of the First
Schedule of the Act the proposed Waikato District Plan
became operative on 6 December 1997, with the exception
of provisions which are not relevant to this appeal. By that
plan, the site is in the Dairy Industrial zone. The proposed
developments are generally permitted activities in that
zone, being involved with the processing and handling of
dairy products. However, there are some elements which
do not conform with the criteria for permitted activities
and these are listed separately.
[188] In summary, Mr Hedgland concluded that the

disposal of the dairy factory wastewater by irrigation is
technically feasible and that there is sufficient suitable land
on the western side of the river for this to occur. That
[192] The buildings which would house the new

evaporators, the silos, the coolstores, and the extension to
235
the existing power house, are all controlled activities as

they exceed the height requirements in the zone.
[200] We accept that the provisions of the Dairy Industrial

Zone recognise the social and economic importance of the
Te Rapa Dairy Factory, and the likelihood that an expansion
will occur at some time in the future.
[193] The proposed drier would be a discretionary activity

because it would exceed 50 metres in height. Under the
general provisions of the plan the storage and use of
hazardous substances, the earthworks, the work on
recorded archaeological sites, and the effluent treatment
systems, are all discretionary activities.
[201] Mr Chrisp deposed that the proposal had been

developed in a manner which addresses the resource
management issues identified in the objectives and policies
for the zone. In particular the issues of visual amenity,
traffic safety, and storage and use of hazardous substances
had been addressed. He gave the opinion the proposed
developments are consistent with the plans objectives and
policies for the zone.
[194] By section 12.5.2 of the proposed district plan,

ancillary activities to any permitted activities are also
permitted activities. It was submitted by Mr Holm that the
proposed cogeneration plant is ancillary to the processing
and handling of dairy products on the site so it should be
regarded as a controlled activity. The appellants did not
contest that, but the District Council disputed that the
cogeneration plant is ancillary to the dairy factory. It
maintained that it is a non-complying activity, but
deserving of resource consent as such.
[202] Mr Chrisp testified that all elements of the proposed

developments on the Te Rapa site complied with the
relevant standards as to height and yard requirements, and
gave his opinion that this compliance satisfies the
assessment criteria specified in the Dairy Industrial Zone.
[203] The appellants made no challenge to the activities
for which land-use consent was sought from the District
Council.
[195] The heart of the District Councils case in that regard

was that even with the reduced capacity, the cogeneration
plant would have capacity to produce more energy than is
needed by the dairy factory. However that overlooked that
the cogeneration plant would produce both steam and
electricity, and although one-third of the electricity
produced may be surplus to the needs of the dairy factory,
100% of the steam would be used on site, so the majority
of the production of the cogeneration plant would be
consumed by the dairy factory.
[204] However their counsel, Mr Cooper, drew attention

to section 6 of the plan, which contains policies for Tainui
at paragraph 6.2, of which policies 6.2.5 and 6.2.6 and
their counterpart reasons at paragraph 6.3.9 and 6.3.10 may
be relevant
6.2 Policies for Tainui
...
6.2.5 Objectives 6.1.1, 6.1.2, and 6.1.3: To
recognise the special relationship of tangata whenu
with the Waikato River and the coastal
environment of the District.
[196] We find that the cogeneration plant would

substantially be ancillary to the expanded dairy factory,
and as such has status as a permitted activity in the Dairy
Industrial zone.
6.2.6 Objectives 6.1.1 and 6.1.3: To enhance and

maintain the environmental quality of the Waikato
River.
...
6.3 Reasons
6.3.9 Policy 6.2.5: The river has always been
and will always be, central to the historical,
spiritual, and economic identify (sic) of the Tainui
People (Tainui Maori Trust Boards report of 29
May 1992 entitled He Kaupapa a Rohe mo
Waikato Whaanui).
[197] Finally the proposed grade-separated vehicle access,

which is partly in the Rural zone, is not provided for in the
district plan, so that aspect of the project is a non-complying
activity.
[198] Under the transitional Waikato Regional Plan there
is no provision for the proposed activities, so the proposal
has to be treated as an unclassified or innominate activity
under the transitional plan, and considered in the same way
as discretionary activities.
6.3.10 Policy 6.2.6: The District Plans policy to

enhance and maintain the environmental quality
of the river supports sections 6 and 7 of the Act
which together support the purpose of the Act.
the policy supports the work of Environment
Waikato concerning the river.
Objectives and Policies

Waikato District Plan
[199] As mentioned above, the site is within the Dairy
Industrial Zone. The zone provisions are set out in section
12 of the plan. Reason 12.3.1 records that the plan includes
this zone in order to recognise the significance of the Te
Rapa dairy processing facility, and to enable the people
and communities of the district to provide for their social
and economic well-being.
Council is receptive to exploring the findings of

investigations which demonstrate that there are
practical and inoffensive alternatives to disposing
effluent via waste water systems.
Resource consent applications which affect the
river will be referred to the Iwi by the applicant.
236
[205] Section 51 of the plan includes an objective and

policy which may be relevant to the proposed cogeneration
plant.
Objective
51.1.2 Issue 51.0.2: To ensure that public works
and utilities are provided in a manner which is
sensitive to the amenity values of the District and
avoids and/or mitigates any adverse effects on the
natural and physical environment.
[210] Section 2.1.3 identifies the relationship of tangata

whenua with the natural and physical resources as a
significant resource management issue. It contains
statements about the concept of kaitiaki, both as reflected
in the Act, and as expressed by Maori in terms of the
relationship that tangata whenua have with the resources.
It is stated 46 that:
Policy
51.2.3 Objective 51.1.2: To encourage co-siting
or sharing of facilities where this is technically
feasible and the operations of the co-sited facilities
are compatible.
Tangata whenua will each have their own

interpretation of the concept of kaitiaki, however,
there are two important overriding principles for
kaitiaki, firstly there is the ultimate aim of protecting
mauri and secondly, there is a duty to pass on the
resources to future generations in a state which is
as good as, or better than the current state.
[206] Mr Chrisp gave the opinion that the cogeneration

plant was an example of co-siting complementary
activities. He testified that the plant would comply with
the bulk and location requirements for controlled activities,
and the noise standards. The activity itself, being the
generation of steam and electricity, is permitted within the
Dairy Industrial Zone. The surplus electricity generation
capacity will not result in additional adverse effects.
[211] No objectives or policies are associated with this

section as it is the explanatory precursor to the objectives
and policies referred to in section 2.1.5, which is also
headed Tangata Whenua Relationship With Natural and
Physical Resources47
[207] Because the proposal has been designed to meet the

cultural requirements of Waikato-Tainui in respect of the
discharge of wastewater to the Waikato River, we find that
in that and in all other respects it conforms with the
objectives and policies of the Waikato district plan.
Although the proposed grade-separated road access to the
factory would be a noncomplying activity, we are satisfied
that it would not be contrary to the objectives and policies
of the plan, so the Court is not precluded by section
105(2)(b) 45 of the Act from granting consent.
2.1.5 Tangata Whenua Relationship With Natural

and Physical Resources
...
Objective: The relationship which tangata
whenua have with natural and physical resources
recognised.
...
Policy One: Maori Culture and Tradition
Ensure that the relationship tangata whenua have
with their ancestral lands, water, sites, waahi tapu
and other taonga is recognised and provided for
in resource management decision making.
...
Waikato Regional Policy Statement

[208] The Waikato Regional Policy Statement was notified
in September 1993. Decisions have been given on all
submissions and further submissions, and the period for
lodging references with the Environment Court has ended.
Policy Two:Promote
and
Provide
for
Kaitiakitanga
Have particular regard to the role tangata whenua
have as kaitiaki and provide for the practical
expression of kaitiakitanga.
...
Environmental Results Anticipated
1. Ancestral lands, water, sites, waahi tapu and
taonga recognised and provided for.
2. Outcomes which accommodate the cultural
and spiritual values held by tangata whenua.
[209] There are objectives and policies in the regional

policy statement under the following headings:
Storage, Transportation, Use and Disposal of

Hazardous Substances
Maintenance of Biodiversity
Structures
The Regions Heritage
Maori Heritage
Tangata Whenua Relationship with Natural

and Physical Resources
Water Quality
Efficient Use of Water
Mauri
Regional and Local Air Quality
[212] Anchor Products maintained that the relationship

Tainui have with the Waikato River has been recognised
45 Resource Management Act 1991, section 105(2)(b), as amended by section 55(2) of the Resource Management Amendment Act 1993. By section
78(5) of the Resource Management Amendment Act 1997 this appeal has to be decided as if the 1997 Amendment Act had not been enacted.
46 On page 17.
47 Section 2.1.5 Tangata Whenua Relationship with Natural and Physical Resources has been challenged by AFFCO in a reference to the Environment
Court.
237
and provided for in the resource consent application process

by way of regular consultation, and the adoption of
mitigation measures; and that the provisions for the
preservation and management of the Mangaharakeke Pa
site are one example of practical expression of kaitiakitanga
in this development. In addition, the Huakina Development
Trust had been consulted, and in response to their wishes,
the gully system had been proposed to meet the cultural
requirements of the Tainui people.
management policy. This is also relevant because of the

issue about phosphorus levels.
[217] Section 3.4.7 relates to Efficient Use of Water, and
includes the objective of obtaining greatest benefit from water
taken from water bodies, and a policy to ensure that water
taken from a water body is efficiently used. It was Anchor
Products case that the proposal includes a number of features
to improve water use efficiency, including evaporators which
allow for a closed-circuit water-cooling system, rather than
the existing once through system. Although the proposal
would result in the doubling of the processing capacity of
the Te Rapa site, the quantity of water taken and discharged
would be no greater than that authorised by the resource
consents currently held by the plant.
[213] Water quality is dealt with in section 3.4.5

which includes objective and policies:
3.4.5 Water Quality
...
Objective: Net improvement of water quality
across the Region.
...
Policy One: Protection of Outstanding Water
Bodies
Ensure the protection of significant characteristics
of the quality of outstanding water bodies.
...
Policy Two:Other Water Bodies
Determine the characteristics for which other
waterbodies are valued and manage those
waterbodies to ensure that those characteristics
are maintained by avoiding, remedying and
mitigating adverse effects on water quality.
...
Policy Three: Riparian Management
The promotion of riparian management to manage
the cumulative effects of point source and nonpoint source discharges of contaminants, and land
uses which affect the margins and beds of
waterbodies.
[218] Section 3.4.10 sets out specific objectives and

policies in respect of mauri of water:
3.4.10 Mauri
Issue: Maori consider that the disposal of
contaminants to water, has the potential to diminish
the mauri of that water.
Objective: No net loss of mauri to tangata whenua.
...
Policy One: Effects of Contaminants
Ensure that the mauri of water will not be
significantly affected by contaminants being
discharged when making decisions about the use,
development and protection of natural and physical
resources.
...
Environmental Results Anticipated
1. The quality of water bodies maintained and
enhanced.
2. Tangata whenua are satisfied that their
concerns in regard to the mauri of water, are
being recognised and are being appropriately
addressed in the Region as a whole.
3. The relationship of tangata whenua with water
resources is better understood and iwi
concerns and values are considered in the
management of water bodies.
[214] In relation to water resources, paragraph 3.4.1 of

the proposed regional policy statement, which is the
overview of the Water chapter, specifically notes the
spiritual significance to Maori of the water resources in
the region48 . This introduction contains discussions of the
concept of mauri, and of taonga as used in section 6(e) of
the Act and in Article 2 of the Treaty of Waitangi.
[219] Mr Chrisp gave the opinion that the consultation

undertaken by Anchor had facilitated the recognition of
the importance of mauri, and the measures developed had
ensured that the mauri of resources is not adversely
affected. Mr Keane observed that the development entailed
a significant reduction in current nutrient loads and that
there would be ongoing consultation with tangata whenua.
[215] We accept that the Waikato River is an outstanding

water body, to which Policy One applies. It was the case
of Anchor Products that the proposed development would
contribute to, and not be inconsistent with, the objective
of ensuring the protection of significant characteristics of
the quality of the river. Conversely it was the case for the
appellants that the proposal would not be consistent with
this objective, in particular because of concerns over
phosphorus levels, although other nutrients (such as BOD
and total nitrogen) would be reduced.
[220] Section 3.6.3 contains policies on Air Quality, and

there was no challenge to evidence that air quality would
not be significantly affected by the proposal, nor would
there be any adverse effects on human health, flora or
fauna. The proposal is consistent with the objectives and
policies in this section.
[216] The importance of cumulative effects on water

quality is specifically recognised by the riparian
48 On page 59.
238
[221] There are specific policies 49 dealing with the

avoidance of adverse effects in connection with the storage,
transportation, use and disposal of hazardous substances.
The evidence for Anchor Products that the storage and use
of hazardous substances in connection with the proposal
would be undertaken in a manner that minimises any risk
to humans and the environment was not disputed. Likewise,
the evidence that the proposal would have no adverse
effects on biodiversity in the Waikato region, in line with
the objectives and policies contained in section 3.11.4 was
not disputed.
contain policies and objectives which seek to protect both

that relationship, and the quality of the water in the river.
Counsel submitted that if the appellants are successful then
that would be because the proposal would affect the special
relationship of the appellants with the river, and because it
is unsound in terms of its likely effects on the river. The
implications of this would be that the result will be an
improvement in the quality of the river, an objective
thoroughly in accordance with the proposed regional policy
statement, and the relevant provisions of the Act.
[226] We have found that there would not be adverse
effects on the river environment of allowing the proposal.
We accept and find that the Waikato River is an outstanding
water body, and that Waikato-Tainui have a deep special
relationship with it of a cultural and spiritual kind; and
that the relationship would be impaired by activities which
result in deterioration of the quality of the water of the
river. We also find that the proposal has been developed
and designed in ways that recognise and provide for that
relationship, and for the kaitiakitanga of Waikato-Tainui,
in accordance with the objectives and policies of the
proposed regional policy statement. The extent of the
wastewater treatment, the protection for the
Mangaharakeke Pa, and the specially designed discharge
facility, are all examples of that. Setting an appropriate
limit on the content of phosphorus in the discharge,
complementary with the limits on other contents of the
discharge, would also recognise and provide for that
relationship and for the kaitiakitanga of Waikato-Tainui.
In short it is our judgment, like that of the primary decisionmakers, that the proposal is consistent with the objectives
and policies of the proposed regional policy statement.
[222] The Te Rapa Dairy Factory is a regionally significant

structure for the purposes of section 3.13.2 which includes
an objective of maintaining the functional integrity of
regionally significant structures, and a policy to recognise
the need for such structures and provide for the
maintenance of their functional integrity. The proposed
developments are consistent with the continued use and
sustainable management of the existing facility.
[223] On heritage matters, the statement 50 addresses
natural heritage (including fresh water ecosystems and
habitats) and cultural heritage (including natural features
of cultural and historical significance and associations).
Mr Cooper submitted that the heritage provisions of the
proposed regional policy statement can be applied to the
Waikato River, which is accordingly within the proposed
regional policy statements objective of protecting
regionally significant heritage resources. This is underlined
by the additional and separate objective of protecting
heritage resources of significance to Maori51 .
[224] Mr Chrisp considered both the regions and Maori
heritage and deposed that measures had been incorporated
into the proposal to ensure that resources of heritage value,
and particularly the resources of heritage value to Maori,
are protected from adverse effects. He gave the opinion
that the proposed developments had been designed in such
a manner as to be consistent with these objectives and
policies.
Waikato Transitional Regional Plan

[227] The rules relating to the use and development of
resources within the jurisdiction of the Waikato Regional
Council are identified in the transitional Waikato Regional
Plan. It was common ground that there are no relevant
objectives, policies or rules in the transitional Waikato
Regional Plan. The only aspect of the plan which has any
bearing is the classification of the water in the Waikato
River, being Class B waters (uncontrolled catchments).
[225] Mr Cooper reminded us that, in Te Runanga O

Taumarere v Northland Regional Council52 the Planning
Tribunal had acknowledged the importance given to the
cultural needs of Maori in the relevant planning
instruments. In summary, Mr Cooper submitted that the
relevant objectives and policies (as noted above) in the
proposed regional policy statement recognise and support
the special relationship of Tainui with the river and they
49
50
51
52
J
APPLICATION OF PART II
[228] In deciding a resource consent application for a
discretionary activity or a noncomplying activity, a consent
In section 3.10.3.
In section 3.15.1.
Section 3.15.3.
[1996] NZRMA 77, 95; 2 ELRNZ 41, 71.
239
authority has to make a judgment under section 105(1)(c)53

of the Act to grant or refuse consent. That section does not
expressly direct that the judgment has to be made for the
purpose of the Act stated in section 5, and in compliance
with the directions in the other sections of Part II of the
Act. However the general language of those provisions of
Part II apply to the exercise of the consent authoritys
discretionary judgment; and we hold that they should be
applied accordingly.
river, and the discharge structure for disposing of treated

wastewater, were deliberately designed to respond to the
cultural wishes of the Waikato-Tainui. In particular the
evidence showed that the design of the discharge structure
would not have been justified by engineering or
environmental considerations, but only by a willingness
by Anchor Products to meet their cultural requirements.
In addition the reduction in the capacity of the cogeneration
plant responded to the wish of Waikato-Tainui that the
taking of water be limited to the minimum amount. The
wastewater treatment plant is to be designed to limit the
contaminants to be discharged to the river, consistent with
the cultural requirements of Waikato-Tainui that it be fit
for spiritual use, as well as the more pragmatic contents of
the proposed regional policy statement. Moreover, Anchor
Products has acknowledged that it respects the cultural and
spiritual significance of the Waikato River to WaikatoTainui; has undertaken to maintain a programme of
continuous improvement of its environmental impact on
the Waikato River and to enhance the quality of the river;
has agreed to participate with Waikato-Tainui in a public
education programme to promote environmental
improvement of the Waikato River, and to encourage others
to take part. Further, in an immediate and practical way,
Anchor Products has undertaken protection of the site of
Mangaharakeke Pa (on its property), and to provide access
to it.
[229] The Resource Management Act has a single

purpose54 . Consistent with that we hold that the provisions
of sections 6 to 8 are subordinate and accessory to the
primary or principal purpose of the Act. We therefore
proceed to consider such of them as are applicable in this
case, before coming to the discretionary judgment whether
for that purpose the resource consents should be granted
or refused.
Maori relationship, kaitiakitanga, and Treaty
principles
[230] In this case the most important provisions are those
directing recognition and provision for the relationship of
Maori and their culture and traditions with their ancestral
water55 ; directing particular regard to kaitiakitanga56 ; and
directing taking into account the principles of the Treaty
of Waitangi 57 . The contents of the Waikato district plan
and the Waikato regional policy statement, and the evidence
summarised earlier in this decision, confirm that those
provisions are applicable to the relationship between the
Waikato-Tainui and the Waikato River.
[233] All parties agreed that the condition about the

phosphorus content in the discharge should be amended,
and we intend to do so. With that amendment, and Anchor
Products acceptance of the other conditions imposed by
the Regional Council, it is our judgment that the revised
proposal before the Court recognises and provides for the
relationship of Maori and their culture and traditions with
their ancestral water, gives particular regard to
kaitiakitanga, and takes into account the principles of the
Treaty of Waitangi.
[231] Principles of the Treaty of Waitangi call for the

Crown and Maori to act reasonably and in good faith
towards each other, and that is applied in resource
management practice to expect proponents of development
proposals which may affect Maori cultural or spiritual
interests to consult with Maori about their proposals, and
consent authorities to receive and have regard to advice
about the effects of proposals on those Maori interests58 .
Protection from inappropriate development

[234] Functionaries are also directed to recognise and
provide for other matters of national importance, of which
those relevant in this case are protection of rivers and their
margins, and outstanding natural features from
[232] In this case the consultation with Waikato-Tainui 59

on behalf of Anchor Products had tangible beneficial
results. Both the intake structure for taking water from the
53 Resource Management Act 1991, section 105(1)(b) and (c) as amended by section 55(1) of the Resource Management Amendment Act 1993. By
section 78(5) of the Resource Management Amendment Act 1997 this appeal has to be decided as if the 1997 Amendment Act had not been
enacted.
54 North Shore City Council v Auckland Regional Council [1997] NZRMA 59, 94; 2 ELRNZ 305, 347.
55 Resource Management Act 1991, section 6(e).
56 Resource Management Act 1991, section 7(a).
57 Resource Management Act 1991, section 8.
58 See Mason-Riseborough v Matamata-Piako District Council (1998) 4 NZELR 31; Tangiora v Wairoa District Council Environment Court
Decision A6/98.
59 By the Huakina Development Trust, being the environmental arm of the Tainui Maori Trust Board, and having the mandate to address all
resource management issues for the Waikato iwi.
240
inappropriate use and development. We find that the

Waikato River is an outstanding natural feature. We have
found that there would be no adverse effects on the river
from the proposed taking of water from it, nor from the
proposed discharge of wastewater to it, save in respect of
Maori cultural requirements, and in respect of phosphorus.
We have found that the revised proposal recognises and
provides for Maori cultural requirements and takes into
account the principles of the Treaty of Waitangi.
Amendment of the condition about discharge of
phosphorus will address that. As a result, we find that the
revised proposal, carried out in conformity with the
conditions, would not be inappropriate use or development
of the Waikato River or its margin.
intended amendment to the condition about phosphorus.

In addition the increase in milk-processing capacity is
proposed to be gained by development of the existing Te
Rapa dairy factory, rather than development of a
greenfields site. In these respects we find that the proposal
is consistent with the efficient use and development of the
natural and physical resources represented by the river,
the site, and its infrastructure (including location on the
main highway network).
Other criteria
[239] The appellants contended that the proposed
discharge to the Waikato River would not be consistent
with the requirements of section 7 to have particular regard
to the maintenance and enhancement of amenity values62 ,
intrinsic values of ecosystems63 , recognition and protection
of the heritage values of areas 64 , maintenance and
enhancement of the quality of the environment65 , and the
finite characteristics of natural and physical resources66 .
Habitat of indigenous fauna

[235] Decisions on resource consent applications are to
recognise and provide for protection of significant habitats
of indigenous fauna60 . The Waikato River is such a habitat
for fish. However we find that, with the intended amendment
to the condition about discharging phosphorus, exercise of
the consents now sought in accordance with the conditions
would not adversely affect that significant habitat.
[240] Our findings in those respects do not support a

conclusion that is adverse to Anchor Products revised
proposal.
Efficient use & development of resources
Conditions
[236] We are to have particular regard to the efficient use

and development of natural and physical resources61. The
appellants contended that efficient use and development
of the resource represented by the Waikato River would
be better served by the disposal to land of the part of the
discharge represented by the nutrient-rich flow.
[241] By section 108 of the Act, consent authorities are

empowered to impose conditions on resource consents. In
granting the resource consents sought by Anchor Products,
the Regional Council and the District Council imposed
conditions on each consent. Those conditions were
accepted by Anchor Products, and with one exception, they
were not challenged by any party at the appeal hearing.
[237] In some cases recently the Environment Court has

been given detailed evidence from economists and full
submissions to assist it to decide whether the proposal
before it represents the efficient use and development of
natural and physical resources. The understanding of the
scope and limits of section 7(b) is still developing. However
in this case, the Court was not given an economic analysis
of the application of that criterion to this case.
Phosphorus limit
[242] The exception was condition 4(vii) imposed on the
discharge permit 67 to authorise discharge of wastewater,
cooling water and stormwater to land and then to the
Waikato River. That condition was
(vii) the total phosphorus concentration of the
discharge as determined from a 24 hour composite
sample shall not exceed 20 grams per cubic metre
for the first 24 months from the exercise of this
consent. Thereafter, the total phosphorus limit for
the discharge may be reviewed as provided for in
condition 21.
[238] However the amount of water to be taken from the

Waikato River has been minimised by the revised proposal,
and the effects of discharge to the River would be limited
by the design of the proposed treatment plant, by the
conditions imposed by the Regional Council, and by the
60
61
62
63
64
65
66
67
Resource Management Act 1991, section 6(c).

Resource Management Act 1991, section 7(b).
Resource Management Act 1991, section 7(c).
Resource Management Act 1991, section 7(d).
Resource Management Act 1991, section 7(e).
Resource Management Act 1991, section 7(f).
Resource Management Act 1991, section 7(g).
Permit No 970032.
241
[243] By Condition 21 the Regional Council reserved

power to review certain limits of constituents in the
discharge
maximum phosphorus loading from Anchor Products

should be set at 5 kilograms per day, in keeping with a
70% reduction from all contaminant sources, to ensure that
nuisance algal blooms do not occur in the lower river during
the growing season. Dr McCabe also proposed that, to
minimise impacts in the littoral weed beds, a ninetypercentile concentration for total phosphorus should be set
at 0.16 grams per cubic metre.
21 The Waikato Regional Council may give notice

pursuant to section 128 of the Resource
Management Act 1991 of its intention to review
the ... total phosphorus limits after a period of 24
months from the exercise of this consent to confirm
that these limits are an accurate assessment of
discharge levels.
[248] Anchor Products position was that it would accept

a limit on phosphorus provided it could be linked to
remedying or mitigating an adverse effect on the water
quality of the Waikato River attributable to its discharge,
but submitted that the evidence did not demonstrate an
adverse effect from discharge of 57 kilograms per day as
proposed.
[244] It was common ground among the parties that the

limit on the concentration of phosphorus in the discharge
of 20 grams per cubic metre was inappropriate. It was also
common ground that the limit should not be expressed in
respect of the concentration of phosphorus in the discharge,
but in respect of the maximum daily mass of phosphorus
discharged. However the parties, and their witnesses,
differed about what the limit on phosphorus should be.
[249] Mr Kennedy proposed the following replacement

condition (vii)
(vii) From the time of granting of this consent up
until the completion of commissioning of the new
powder plant the following effluent quality criteria
should apply to the final discharge to the Waikato
River.
[245] The Regional Council proposed the following

replacement condition (iv)
(iv) the quarterly average mass load of phosphorus
in the final discharge as determined from 24-hour
composite samples shall not exceed 25 kilograms
per day, nor shall the maximum load exceed 35
kilograms per day.
For the purpose of this condition each quarterly
period shall begin on the 1 January, 1 April, 1
July, and 1 October each year.
The annual average total phosphorus load (based

upon the samples collected above) shall not exceed
27 kg per day as a 90 percentile.
From the time of completion of commissioning
of the new powder plant for a period of 24 months,
the following effluent quality criteria shall apply
to the final discharge to the Waikato River.
[246] A water quality scientist employed by the Regional

Council, Mr W N Vant, gave the opinion that it is desirable
that all loads of plant nutrients in the Waikato River
decrease, and therefore that the future load of total
phosphorus from the Anchor Products site should not
exceed the present level, being about 25 kilograms per day
on average, and that the loads of both phosphorus and
nitrogen should be reduced by about the same extent. As
the condition limiting nitrogen in the discharge would have
the effect of reducing nitrogen to less than half the current
load, he considered that the future load of phosphorus
should be no more than about 11 kilograms per day, and if
it is not practicable to reduce it to that extent immediately,
in the meantime the average load should be no greater than
the present level of about 25 kilograms per day. In crossexamination, Mr Vant deposed that 57 kilograms per day
of total phosphorus in the discharge would be about 5 or 6
percent of the total phosphorus in the river.
The annual average total phosphorus load (based

upon the samples collected above) shall not exceed
57 kg per day as a 90 percentile.
Thereafter, the annual mean value of the total
phosphorus concentration of the final discharge
may be reviewed as provided for in condition 21.
[250] Anchor Products proposed as an alternative that the

Court impose an amended condition such as that sought
by the Regional Council but modified so that the reference
to 25 kilograms per day became a reference to 57 kilograms
per day, and the reference to 35 kilograms per day became
a reference to 70 kilograms per day.
[251] Anchor Products reminded us that 57 kilograms per
day would be equivalent to about 5 to 6 % of the total
phosphorus in the river, well below the amount discharged
by the Hamilton City sewerage works (some 19%) which
Mr Vant had agreed in cross-examination would have only
minor effects, and would be negligible and undetectable.
[247] Dr McCabe gave the opinion that it would be prudent

that a better than 70% reduction be achieved in both total
nitrogen and total phosphorus discharges to the river over
the growing season where technology allows such
reductions to be achieved; and that provision should also
be made to extend nutrient reduction in the winter months
should this be necessary to achieve the target river water
quality and algal biomass. He gave the opinion that the
[252] Our approach to the issue of the limits on the amount

of phosphorus which may be included in the discharge to
the river needs to be informed by a number of factors. It
should be such as would sustain the potential of the river
242
dischargers of nutrients to the Waikato River75 should be

known. Anchor Products could expect to have a pro rata
reduction imposed on it. That would be consistent with
the provisions of the proposed Waikato regional policy
statement. However as its total contribution of phosphorus
is relatively smaller, it would not provide a suitable case
for setting the precedent.
to meet the reasonably foreseeable needs of future

generations 68 . It should safeguard the life-supporting
capacity of the water of the river69 . It should avoid, remedy
or mitigate any adverse effects on the environment 70 . It
should recognise and provide for the relationship of
Waikato-Tainui and their culture and traditions with the
river 71 , and have particular regard to kaitiakitanga72 . Our
approach should also allow, if possible, for managing the
use of resources in a way and at a rate which would enable
the dairy community to provide for their economic wellbeing73 . In that context, we have particular regard to the
efficient use and development of resources74 .
[255] The other feature is that the Regional Council only

announced that it would not support the phosphorus limit
imposed by Condition 4(vii) of its decision a few weeks
before the appeal hearing. That relatively late change of
attitude by the relevant regulatory authority gives support
to a graduated reduction in the phosphorus limit, rather
than requiring a reduction now which may not prove to be
consistent with the reductions required of the major pointsource dischargers. To avoid any expression of opinion
which might affect the outcome of proceedings in which
the general reduction may be set after full consideration in
the context of one or more major contributors, it is our
judgment that the condition should continue to set a limit
for at least the first 24 months of exercise of the discharge
consent, and reserve power for the limit to be reviewed
after that period has elapsed. Nothing in this decision
should be read as an indication about what limit might be
appropriate after the 24-month period has elapsed, or how
it should be expressed. However Anchor Products have
clear notice that the phosphorus limit is liable to be reduced
after that period, and can prepare to be able to comply
with a reduced limit, whether by additional treatment of
the wastewater, or by disposal to land, or however.
[253] We start by recognising that it is common ground

that there should be a limit on the amount of phosphorus
that may be included in the discharge. Next we find that
even the amount proposed by Anchor Products, would not
on its own fail to sustain the potential of the river to meet
the reasonably foreseeable needs of future generations, fail
to safeguard the life-supporting capacity of the water of
the river, or have any adverse effects on the physical
environment. There are two reasons for further restricting
the amount. The first is that it does not recognise and
provide for the relationship of Waikato-Tainui with the
river, not so much for any physical effects, but because of
their cultural and spiritual attitude to the river (a topic on
which we have given our findings earlier in this decision).
The second is the cumulative effect of numerous pointsource and non-point-source discharges of phosphorus into
the river, which can lead to a total amount in the river
which can lead to formation of blue-green algae blooms
in the lower river. All industries should be expected to take
a share in reducing the total load, even at some cost to
providing for economic well-being, and to efficient use
and development of resources.
[256] Accordingly we proceed to make our judgment about

whether the resource consents should be granted or refused
on the basis that if they are granted, the conditions imposed
by the primary consent authorities would be attached to
the consents, but Condition 4(vii) attached to Discharge
Permit 970032 would be amended to read as follows
[254] So even though the 57 kilograms per day that would

be contributed by Anchor Products would be equivalent
to only about 5 to 6 % of the total phosphorus in the river,
and would have only minor effects, it is not to be neglected.
As other industries which discharge nutrients into the river
are required to reduce the amounts discharged, Anchor
Products should also be required to do so. It is our
understanding that this was the Regional Councils intent
in condition 4(vii) by setting a limit for the first 24 months
of exercise of the discharge consent, and reserving power
to review the limit after that. By then, the extent of the
reductions in the discharges from the major point-source
68
69
70
71
72
73
74
75
The quarterly average mass load of phosphorus

kilograms per day.
The limits stated may be reviewed as provided
for in condition 21.
Resource Management Act 1991, section 5(2)(a).

Resource Management Act 1991, section 5(2)(b).
Resource Management Act 1991, section 5(2)(c).
Resource Management Act 1991, section 6(e).
Resource Management Act 1991, section 7(a).
Resource Management Act 1991, section 7(b) and Solid Energy v Grey District Council Environment Court Decision A8/98.
Kinleith mill, Hamilton City sewage treatment works, and AFFCO Horotiu meatworks.
243
[257] In our judgment that condition would enable the

dairy community to provide for their economic well-being,
and make efficient use and development of resources while
preparing to make its contribution to the needs of Maori
people, and of kaitiakitanga, and of future generations of
all the Waikato community, for a river containing water
sufficiently free from nutrients that it is not liable to bluegreen algae blooms. It would enable that contribution to
be achieved at a rate that is consistent with major
dischargers of nutrients to the Waikato River.
[261] There is a possible alternative for discharging

wastewater from the expanded dairy factory and
cogeneration plant. Instead of discharging to the structure
designed to meet the cultural needs of Waikato-Tainui and
then to the Waikato River, it would be possible to discharge
to land. That would avoid all perception of contaminants
flowing directly into the river, but would have considerable
practical difficulties, although they could probably be
overcome.
[262] By the relevant planning instruments, the elements
of the proposal that are not permitted activities are either
controlled activities or discretionary activities, or being
unclassified, fall to be considered as discretionary
activities. The proposed grade-separated access would be
a noncomplying activity. The revised proposal, if carried
out in conformity with the amended conditions, would be
consistent with the relevant objectives and policies of the
relevant instruments, being the proposed regional policy
statement and the district plan.
M
JUDGMENT AND DETERMINATION
[258] We have now to make a judgment whether the
resource consents should be granted or refused. The
judgment is to be informed by the single purpose of the
Resource Management Act set out in section 5, to promote
the sustainable management of natural and physical
resources. In making our judgment we have regard to the
various matters directed by section 104, weighting them,
where necessary, depending on the application of the
provisions of Part II of the Act76 .
[263] We have applied the relevant directions of sections

6, 7 and 8 of Part II of the Act, and have concluded that the
revised proposal, carried out in conformity with the
amended conditions, would meet the directions of those
provisions of the Act.
[259] Of the relevant matters identified under section

104(1), we consider first any actual or potential effects on
the environment of allowing the activities. If the resource
consents are exercised in compliance with the conditions,
there would be no adverse effects on the physical
environment. The adverse effect on the relationship of
Waikato-Tainui with the river, and on kaitiakitanga, would
be recognised, provided for and mitigated in four separate
ways. The first is by minimising the amount of water to be
taken, and design of the intake structure to meet their
cultural needs. The second way is by treatment of the
wastewater to be discharged to meet appropriate limits in
the conditions, and design of the discharge structure to
meet their cultural needs. The third is by provision for early
review of the limits of contaminants in the discharge. The
fourth way is by acknowledgements by Anchor Products
of the deep cultural and spiritual significance of the
Waikato River to Waikato Tainui, backed up by
undertakings in support of enhancing the quality of water
of the river, and about protection of Mangaharakeke Pa.
[264] We have also examined the conditions imposed by

the Regional Council on the various resource consents. If
the consents are granted, those conditions, with an
amendment to the condition about the amount of
phosphorus to be discharged, would be appropriate to
attach to the respective consents, and would to the extent
practicable avoid, remedy or mitigate any adverse effects
of the activities on the environment.
[265] In short, the only matter that would not be fully
provided for is the concern of Waikato-Tainui, expressed
by Mr Solomon, about the perception of contamination of
the river, irrespective of any perceptible physical effect.
That could only be avoided by discharge of the wastewater
to land, an option which would itself have considerable
practical difficulties.
[266] We return to the purpose of the Act as defined,
recognising that it is a single purpose, embracing all the
elements set out in section 5(2), and that sections 6, 7 and 8
are subordinate and accessory to it. Section 5(2) provides
[260] We accept that those ways in which the cultural

needs of the Waikato-Tainui would be recognised and
provided for would not extend to avoiding all perception
of contaminants flowing into the river, irrespective of
physical effects (as described by Mr Solomon in his
evidence).
In this Act, sustainable management means

managing the use, development, and protection of
76 Cf Baker Boys v Christchurch City Council Environment Court Decision C60/98, paragraph 109; and Judges Bay Residents Association v
Auckland Regional Council Environment Court Decision A72/98, paragraph 443.
244
natural and physical resources in a way, or at a

wellbeing and for their health and safety while
(a) Sustaining the potential of natural and physical
resources (excluding minerals) to meet the
reasonably foreseeable needs of future
generations; and
(b) Safeguarding the life-supporting capacity of air,
water, soil, and ecosystems; and
(c) Avoiding, remedying, or mitigating any adverse
effects of activities on the environment.
kilograms per day.

The limits stated may be reviewed as provided
for in condition 21.
[267] We find that the proposed expansion of the dairy

factory would represent managing the use, development
and protection of the natural and physical resources
involved in a way and at a rate which would enable the
Waikato dairy community to provide for their economic
wellbeing while achieving the goals set out in paragraphs
(a), (b) and (c). It would also enable the Waikato-Tainui
people to provide for their cultural wellbeing because of
the several respects in which the proposal has been
designed to meet their cultural needs and the respects in
which Anchor Products has given undertakings of
substance in response to those cultural needs.
(b)
Save in those respects , Appeal RMA 662/97 is

disallowed.
(c)
The question of costs is reserved. If the parties are

unable to reach agreement on that question,
memoranda may be lodged by 31 August 1998.
DATED at Auckland this 29th day of July 1998.
DFG Sheppard
Environment Judge
terapa.doc
APPENDIX
The resource consents granted following the primary hearings were:
[268] Those respects in which the proposal would

recognise and provide for the relationship of the WaikatoTainui people with the river, and would enable them to
provide for their cultural well-being address tangible effects
on the river. Although they do not extend to avoiding the
perception of contamination of the river, in the way referred
to in Mr Solomons evidence, we have found that the way
suggested for avoiding that, by disposing of wastewater to
land, has practical difficulties. It is our judgment that
because of the community value of the proposed expansion
of the dairy factory, and because the cultural interests of
the Waikato-Tainui people would be provided for in so
many other ways which avoid tangible harm to the river,
the perceptions which are not represented by tangible
effects do not deserve such weight as to prevail over the
proposal and defeat it. We conclude that granting resource
consents for the revised proposal, subject to the conditions
incorportaing the proposed amendment, would promote
the sustainable management of the natural and physical
resources involved.
(a)
Consents from The Waikato District Council for:
Capacity Expansion Project:
(i) To construct, use and maintain a milk

processing facility and related infrastructure
including the storage and use of hazardous
substances.
(ii) To construct and use a grade separated access
for the Te Rapa sites.
(iii) To undertake works on two recorded
archaeological sites.
(iv) To undertake earthworks (including
excavation, stock piling, filling and
landscaping).
(v) To construct and use effluent treatment
systems within 10m of the property boundary
and to erect erosion control structures within
20m of a watercourse.
269] Accordingly the Environment Court makes the

following determinations
(vi) To construct and use temporary dams during

constructions.
(a) That the resource consents granted by the District

Council and the Regional Council are confirmed, subject
to amendments consequential on reduction in the capacity
of the proposed cogeneration plant to 45 megawatts, and
to replacement of Condition 4(vii) of Discharge Permit
970032 with the following condition
(vii)To construct, use and maintain outfall/erosion

control structures on the surface of the water.
Cogeneration Plant
(i) To construct, use and maintain a cogeneration
plant and related infrastructure including the
storage and use of hazardous substances.
The quarterly average mass load of phosphorus

(ii) To discharge waster water (being cooling

tower blow down water, cogeneration plant
245
waste water, condensate and stormwater)

within 10m of the property boundary.
(vii)(970039) to discharge contaminants into the

air from dairy processing and related activities
including electricity and steam production for
the milk processing facility.
(iii) To construct and use temporary dams during

construction.
Land Use Consents

Electricity Transmission Line
(i) (970040) to construct (including excavation,
metal extraction, earthworks and other land
and vegetation disturbance of the bed and
deposition of substances), operate, maintain
and upgrade outfall/erosion control structures
in, on, under and over the bed of the Waikato
River.
(i) To construct and operate a 110 kv electricity

transmission line in the road reserves of State
Highway 1, Horotiu Bridge Road, River Road
and Lake Road.
(b)
Consents from The Waikato Regional Council
(ii) (970041) to excavate and carry out metal

extraction, earthworks and land and
vegetation disturbance including activities
less than 5m from the bed of the Waikato
River.
Capacity Expansion Project

Water Permits
(i) (970027) to take and use up to 32,000m3 of
water per day from the Waikato River for
dairy processing and related activities on the
Te Rapa dairy factory site.
Cogeneration Project
Water Permits
(ii) (970028) to dam and divert water within the

site land-based wastewater treatment system
(including, dairy factory wastewater, cooling
water and stormwater).
(i) (970042) to take and use out of the daily site

water limit of 33,000m3 up to 10,000m3 of
water per day from the Waikato River for a
cogeneration plant and related activities.
(Note the reductions referred to above).
(iii) (970029) to divert and take and use

groundwater to dewater the site for
construction purposes.
(ii) (970043) to dam and divert water within the

site land-based wastewater treatment system
(including cooling water, condensate and
stormwater).
(iv) (970030) to take and use water from the

Waikato River for construction purposes.
(iii) (970044) to divert and take groundwater to

dewater the site for construction purposes.
(v) (970031) to temporarily divert part of the

Waikato River within its margins for the
purposes of constructing outfall/erosion
control structures.
Discharge Permits
(i) (970032) to discharge up to 31,000 m 3 per

day of dairy factory wastewater and cooling
water and 3360 m3 per day of stormwater to
land in circumstances where it may enter
groundwater and then to the Waikato River.
(i) (970045) to discharge within the daily site

limit of 31,000m3 up to 8,000m3 per day of
cooling tower blow down water, cogeneration
plant wastewater, condensate and stormwater
to land in circumstances where it may enter
groundwater and thence to two unnamed
tributaries of the Waikato River. (Note the
reductions referred to above).
(ii) (970034) to discharge water taken from the

ground for construction dewatering purposes,
groundwater.
(ii) (970047) to discharge water taken from the

ground for construction dewatering purposes
groundwater.
(iii) (970035) to discharge stormwater to an

unnamed tributary of the Waikato River on
the western side of State Highway 1.
(iii) (970048) to discharge contaminants into the

air from the cogeneration plant and related
activities.
Discharge Permits
(iv) (970036) to discharge stormwater to the

Waikato River from the Te Rapa village area.
Land use Consents

(i) (970049) to convey electricity transmission
lines over the Waikato River in the vicinity
of the Horotiu Bridge.
(v) 970037) to discharge water associated with

construction activities to the Waikato River.
(vi) (970038) to discharge intake screen wash
water to the Waikato River from the water
intake structure.
246
247
DECISION NO A 04 /2000
IN THE MATTER
AND
IN THE MATTER
of an appeal under section 120 of the Act
BETWEEN
CONTACT ENERGY LIMITED

(Appeal RMA 463/98)
Appellant
AND
THE WAIKATO REGIONAL COUNCIL

and THE TAUPO DISTRICT COUNCIL
Respondents

Environment Judge D F G Sheppard
HEARING at Taupo on 9, 10, 11, 12, 13, 16, 17, 18, 19, and 20 August 1999, and 26, 27, 28 and 29
October 1999
APPEARANCES:
T P Robinson and S Daysh for the appellant
D J Taylor for the respondents
AFS Vane for the Taupo District Council as submitter, and for P A Henry
D G Kember for Taupo Hot Springs Limited and Akinra Holdings Limited
J S Auld for the Tauhara Middle Trusts
A Martin for the Minister of Conservation and the Tongariro Taupo Conservation Board (leave to
withdraw)
A J Waters in person
248
INTERIM DECISION
THE PROPOSAL
[6] The modified proposal was to take up to 20,000
tonnes per day of geothermal fluid, of which up to 14, 400
tonnes per day would be used to extract 23 terajoules per
day of heat and energy for a proposed power station with
a capacity of 15 megawatts.
INTRODUCTION
[1] Contact Energy Limited (Contact) has appealed to
the Environment Court under section 120 of the Resource
Management Act 1991 against decisions by the Waikato
Regional Council and the Taupo District Council refusing
resource consents needed for a proposed geothermal power
station near Taupo. The original resource consent
applications sought taking from the Tauhara Geothermal
Field 57,000 tonnes per day of geothermal fluid, which
would have enabled a power station with a capacity of 50
megawatts 1 and an associated binary plant of 20
megawatts.
[7] The site for the power station is on the southern side
of Centennial Drive, Taupo, close to the intersection with
Rakaunui Road. Geothermal fluid would be taken from
two existing production wells in the vicinity, 3 and from
other new wells as required. Geothermal fluid would also
be made available to other industries in the Centennial
Drive and Crown Road areas of Taupo.
[8] Up to 10,000 tonnes per day of water would also be
taken from the Waikato River, at a site near the District
Councils water supply intake.
[2] The applications were opposed by a number of

submitters, including the Taupo District Council.2 The
District Councils participation as a consent authority in
the joint committee with the Regional Council for the
primary hearing of the applications was therefore by an
independent commissioner.
[9] Up to 20,000 tonnes per day of separated geothermal

water would be reinjected to the ground at up to three sites.
A preferred reinjection well site lies to the west of the
production area, on farm-land to the east of a scenic reserve
adjoining the Waikato River. An alternative reinjection site
lies to the east of the production area.
[3] After having lodged this appeal against refusal of

the resource consents, Contact reviewed its proposal and
notified the parties of a reduction in the scale of the project.
It was the modified proposal that was the subject of the
Environment Court hearing on appeal.
[10] The key resource consents needed are those for

taking the geothermal fluid, for discharging into reinjection
wells, and for land-use consent for the power station. Other
resource consents are needed for discharge of contaminants
to the air and into land, handling of stormwater, taking of
river water, operating and maintenance of existing
geothermal wells, structures over beds of streams,
discharges of contaminants to land and water, and
disturbance of beds of rivers and streams, and land-use
consents for excavation earthworks and vegetation
disturbance near beds of rivers and streams.
[4] The Taupo District Council, in its capacity as

submitter, took the principal part at the appeal hearing in
opposition to the proposal. The primary consent authorities
(the Regional Council and the District Council) also took
an active part. Other opponents who participated in the
hearing were the Tauhara Middle Trusts (which hold over
1635 hectares of land over part of the Tauhara Geothermal
Field in trust for 2400 members of Tauhara hapu); Taupo
Hot Springs Limited and Akinra Holdings Limited (which
have interests in businesses that use geothermal energy
derived from the Waipahihi Springs in the southern part of
the Tauhara geothermal field), Mr P A Henry (a resident
of Taupo who has interests in several businesses there),
and Mr A J Waters (a retired roading engineer who has
lived at Taupo since 1994).
THE LAW
Resource Management Act
[11] The appeal, the resource consent applications, and the
Courts jurisdiction all derive from the Resource Management
Act, which provides the framework for our decision. The
express purpose of that Act is stated in section 5:
[5] In this decision we distinguish the roles of the Taupo

District Council as one of the primary consent authorities
whose decision is challenged and as a submitter in
opposition to the grant of the resource consents. We refer
to the primary consent authorities together as the
respondents; and to the Taupo District Council in its role
as submitter in opposition as the District Council.
1
2
3
5. Purpose (1) The purpose of this Act is to

promote the sustainable management of natural
and physical resources.
(2) In this Act, sustainable management means
managing the use, development, and
protection of natural and physical resources
In this decision, unless otherwise stated, values expressed in megawatts refer to megawatts electrical.
The District Council made no submission on the land-use consent applications.
Identified as TH1 and TH2.
249
in a way, or at a rate, which enables people

and communities to provide for their social,
economic, and cultural wellbeing and for their
health and safety while
environment.
(2)
(3) An application may be made for a resource
consent
(a) For a controlled activity or a discretionary
activity or a non-complying activity, under a
plan or proposed plan; or
(b) Where there is no plan or proposed plan, for
an activity for which a consent is required
under Part III.
(4) Subject to subsection (5), an application for
a resource consent shall be in the prescribed
form and shall include
(a) A description of the activity for which consent
is sought, and its location; and
(b) An assessment of any actual or potential
effects that the activity may have on the
environment, and the ways in which any
adverse effects may be mitigated; and
(c) Any information required to be included in
the application by a plan or regulations; and
(d) A statement specifying all other resource
consents that the applicant may require from
any consent authority in respect of the activity
to which the application relates, and whether
or not the applicant has applied for such
consents; and
(e)
(5) The assessment required under subsection
(4)(b) in an application for a resource consent
relating to a controlled activity, or a
discretionary activity over which the local
authority has restricted the exercise of its
discretion, shall only address those matters
specified in a plan or proposed plan over which
the local authority has retained control, or to
which the local authority has restricted the right
to exercise its discretion, as the case may be.
(6) Any assessment required under subsection
(4)(b) or subsection (5)
(a) Shall be in such detail as corresponds with
the scale and significance of the actual or
potential effects that the activity may have
on the environment; and
(b) Shall be prepared in accordance with the
Fourth Schedule.
(7)
[12] That section is the first provision of Part II of the

Act. The following are subsequent provisions of that part
which may be material in this case
6.
Matters of national importance In

achieving the purpose of this Act, all persons
relation to managing the use, development,
and protection of natural and physical
resources, shall recognise and provide for the
following matters of national importance:
(e) The relationship of Maori and their culture

and traditions with their ancestral lands, water,
sites, waahi tapu, and other taonga.
7.
Other matters In achieving the purpose of

this Act, all persons exercising functions and
powers under it, in relation to managing the
use, development, and protection of natural
and physical resources, shall have particular
regard to (a) Kaitiakitanga:
(b) The efficient use and development of natural

and physical resources:
(c) The maintenance and enhancement of amenity
values:
(d) Intrinsic values of ecosystems:
(f) Maintenance and enhancement of the quality

of the environment:
(g) Any finite characteristics of natural and
physical resources:
[14] Applications for resource consent have to be

considered and decided by a consent authority under
sections 104 and 105. We quote relevant provisions of those
sections 5
[13] Section 88 provides for applications for resource

consent. We quote relevant provisions of that section 4
104. Matters to be considered - (1) Subject to

Part II, when considering an application for
a resource consent and any submissions
received, the consent authority shall have
regard to
88. Making an application (1) Any person may,

in the manner set out in subsection (4), apply
to the relevant local authority for a resource
consent.
4
5
As amended by section 44 of the Resource Management Amendment Act 1993.

Section 104 as substituted by section 54 of the Resource Management Amendment Act 1993; section 105 as amended by section 55 of the
Resource Management Amendment Act 1993. Amendments made to those sections by sections 21 and 22 respectively of the Resource Management
Amendment Act 1997 have not been incorporated in these quotations, because by section 78(1) of that Amendment Act, the resource consent
application has to be decided as if that Act had not been passed, the primary hearing having commenced on 29 September 1997, before the
commencement of the Amendment Act on 17 December 1997.
250

(b)
(c) Any relevant national policy statement, New
Zealand coastal policy statement, regional
policy statement, and proposed regional
policy statement; and
other provisions of a plan or proposed plan;
and
(e) Any relevant district plan or proposed district
plan, where the application is made in
accordance with a regional plan; and


otherwise contravene section 15 (relating to
discharge of contaminants), the consent
authority shall, in having regard to the actual
and potential effects on the environment of
allowing the activity, have regard to
(a)
(b) For a non complying activity unless, having
considered the matters set out in section 104,
it is satisfied that
(i) Any effect on the environment (other than
any effect to which subsection (2) of that
section applies) will be minor; or
(ii) Granting the consent will not be contrary to
the objectives and policies of the plan or
proposed plan; or
(c) For a prohibited activity; or
(d) For any activity described as a prohibited
activity by a rule in a proposed plan once the
time for making or lodging submissions or
appeals against the proposed rule has expired
and
(i) No such submissions or appeals have been
made or lodged; or
(ii) All such submissions and appeals have been
withdrawn or dismissed.
(3) For the avoidance of doubt, when granting a
resource consent for a controlled activity
under subsection (1)(a), the matters described
in section 104 shall be relevant only in
determining the conditions, if any, to be
included in the consent.
(4) After considering an application for a resource
consent, a consent authority may grant the
consent on the basis that the activity is a
controlled or discretionary or non-complying
activity, whether or not
(a) The application was expressed to be for an
activity of that kind; or
(b) That activity was a controlled or discretionary
or non-complying activity, as the case may
be, on the date the application was made.
105. Decisions on applications (1) Subject to

subsections (2) and (3), after considering an
application for
(a) A resource consent for a controlled activity,
a consent authority shall grant the consent,
but may impose conditions under section 108
in respect of those matters over which it has
reserved control:
(b) A resource consent for a discretionary activity,
a consent authority may grant or refuse the
consent, and (if granted) may impose
conditions under section 108:
Provided that, where the consent authority has
restricted the exercise of its discretion,
consent may only be refused or conditions
may only be imposed in respect of those
matters specified in the plan or proposed plan
to which the consent authority has restricted
the exercise of its discretion:
(c) A resource consent (other than for a controlled
activity or a discretionary activity or a
restricted coastal activity), a consent authority
may grant or refuse the consent, and (if
granted) may impose conditions under section
108.
(2) A consent authority shall not grant a resource
consent
[15] Because section 104(1)(a) directs a consent authority

to have regard to any actual and potential effects on the
environment of allowing the activity, we quote section 3,
which describes the scope of the term effect,6 and we
also quote the definition of the term environment in
section 2(1).
3. Meaning of effect In this Act, unless the
context otherwise requires, the term effect,
includes
(a) Any positive or adverse effect; and
(b) Any temporary or permanent effect; and
(c) Any past, present, or future effect; and
(d) Any cumulative effect which arises over time
or in combination with other effects
regardless of the scale, intensity, duration, or
frequency of the effect, and also includes (e) Any potential effect of high probability; and
(f) Any potential effect of low probability which
has a high potential impact.
2. Interpretation (1) In this Act, unless the
context otherwise requires,
Section 3 as amended by section 3 of the Resource Management Amendment Act 1993.
251

are affected by those matters:
understanding the existing environment for assessing

effects of a proposal, a distinction should be drawn between
land-use consents and water and geothermal consents. He
compared existing-use rights in relation to buildings, which
are perpetual, and rights for taking of geothermal energy
which, like the taking of water, have a defined term, and
are not necessarily renewed. Counsel contended that if the
effects of extraction of geothermal energy are progressive,
it is legitimate to consider what the environment might
look like if the existing taking rights are not renewed on
expiry and the progressive effects stabilise; alternatively
to treat the effects of the supervening proposal as
exacerbating.
Identification of environment affected
[16] An issue arose about identifying, for the purpose of

section 104(1)(a), the environment that would be affected
by allowing the activity.
[17] Counsel for Contact, Mr Robinson, submitted that
for this purpose the environment is that which currently
exists. He contended that this includes the effects on it of
past abstraction from the geothermal system, and effects
of the exercise of consents currently in force. He also
contended that this would include future effects of those
activities, such as further subsidence resulting from past
abstraction. Counsel sought to distinguish those effects
from effects (such as subsidence) of future activities which,
he accepted, should not be taken into account in identifying
the environment that would be affected by allowing the
proposed activity. Mr Robinson observed that this
interpretation would not constrain the Regional Councils
freedom of decision on future applications to renew the
consents which expire in 2001 for abstraction of
geothermal fluid for the Wairakei Power Station.
[20] Mr Kember contended that it could not have been

intended that an applicant would be able to ratchet up its
cumulative impact by appealing to the situation created
by its existing activity as the status quo against which the
effects of its incremental activity are to be measured. So
he submitted that where the activity is an ongoing process
and the effects of the applicants own existing activity are
continuing or progressive, the existing environment must
be read as the environment that might exist if the existing
taking activity were discontinued.
[21] Contact did not contend that the environment should
be defined as including future effects of future exercise of
existing or future consents. Its case was confined to two
classes of effect. The first class is the effects of what has
already past, that is, the effects of abstractions from the
geothermal system that have already been made.
Recognising that it may take a lengthy period for the full
effects of abstraction to become evident (so that the effects
of past abstractions may continue into, and change in the
future), this class includes treating as part of the future
environment those continuing and changing effects of past
abstractions. The second class is the effects of future
abstractions that have already been authorised. Mr
Robinson expressly disclaimed taking into account effects
of future renewals of past or existing consents, or of other
consents that might in future be granted, whether in place
of existing consents or otherwise.
[18] Counsel for the District Council, Mr Vane, submitted

that historic, existing and potential future effects at Taupo
of exercise of consents at Wairakei do not provide an
appropriate baseline for assessing the effects of the
proposal. He presented four main arguments in support of
that proposition. The first was that it cannot be presumed
that the abstraction of geothermal fluid for the Wairakei
Power Station will continue to be authorised after the
current consents expire. The second ground was that the
adverse effects on the Taupo community of existing
abstraction pursuant to the rights expiring in 2001 have
never been the subject of processes under the Resource
Management Act 1991, the Town and Country Planning
Act 1977 or the Water and Soil Conservation Act 1967.
Thirdly, Mr Vane submitted that it has yet to be determined
how the Wairakei-Tauhara thermal system should be
managed to internalise adverse effects from abstraction.
Finally, he submitted that granting consent to the present
application would close off use of the Tauhara area for
reinjection of waste fluids from Wairakei so as to avoid
adverse effects at Taupo arising from the Wairakei
operation.
[22] We accept Mr Vanes submission that it should not

be presumed that the present abstractions will continue to
be authorised after the current consents expire. However
since Contact expressly disavowed taking into account the
effects of future consents, Mr Vanes point does not bear
on the issue.
[23] For the present purpose we accept that the District
Council was also correct in submitting that the adverse
effects on the Taupo community of past and present
abstraction under the consents which expire in 2001 were
never the subject of public participation processes under
the Acts listed. Even so, that abstraction was authorised
[19] Counsel for Taupo Hot Springs Limited and Akinra

Holdings Limited, Mr Kember, submitted that in
252
by law,7 and the abstraction is continuing pursuant to a

deemed water permit under the Resource Management
Act. 8 If the enactments by which the abstraction was
authorised did not provide for public participation
processes, that does not detract from the facts that the
abstraction was and is lawfully being carried on, and has
already affected, and is likely to continue to affect, the
environment. We do not accept that the absence of public
participation processes justifies ignoring those effects in
defining the actual and potential effects on the environment
of allowing the proposed abstraction.
the Wairakei Power Station has been operating since 1958,

but it has only been operated by Contact since 1996. At
least a considerable amount of the effects alluded to would
have been caused by abstractions prior to Contact acquiring
the station. In any event we hold that for the present purpose
the identity of the applicant with the previous abstractions
is not relevant. The purpose is to define the environment
so as to gauge the effects on it of allowing the proposed
activity. Whether features of that environment are the result
of activities by the applicant, or by other actors, or by
natural processes, has no bearing on defining the
environment that may be affected by allowing the proposed
activity
[24] The District Councils third point was that a method

of managing the geothermal system so as to internalise
adverse effects of abstraction has not yet been determined.
We do not accept that this point has any bearing on
identifying the environment for the purpose of considering
the effects on it of allowing the activity the subject of these
resource consent applications.
[27] We also accept Mr Robinsons contention that it

would not make sense to take a historical state of the
environment as a reference point, and disregard later
changes that have been made to the environment and which
are irreversible. For those reasons we do not accept Mr
Kembers submission that the environment should be
treated as if existing lawful abstractions were discontinued.
That would not represent the reality, and would lead to
irrational artificiality in the process called for by section
104(1)(a) of the Act.
[25] The District Councils fourth point related to a

hypothetical possibility of reinjecting in the Tauhara area
waste geothermal fluid from the Wairakei Power Station
with a view to reducing further ground subsidence effects
of abstraction of geothermal fluids from the system. The
Council contended that granting consent to the proposed
abstraction from the Tauhara area would preclude that
possibility from being implemented. To the extent that this
is an argument against granting the consents sought, we
address it elsewhere in this decision. However the
possibility of reducing further subsidence by reinjection
does not bear on the definition of the environment for the
purpose of having regard to the effects of the current
proposal.
[28] We consider that decision of the question should be

based on understanding what is meant by the term
environment in that provision: that is, a question of
interpretation of the provision. We have already quoted
the meanings ascribed to the terms effect and
environment in sections 3 and 2 respectively.
[29] Counsel referred us to a series of recent judgments
of the superior Courts dealing with the process of
identifying effects on the environment for the purpose of
deciding (under section 94(2)(a) of the Act) whether a
resource consent application need not be notified. In the
order in which the judgments were given, the cases are
Aley v North Shore City Council,9 Bayley v Manukau City
Council,10 McAlpine v North Shore City Council,11 and
Lowe v Dunedin City Council.12
[26] We now consider Mr Kembers submission that an

applicant should not be able to ratchet up the cumulative
effect of its activities, so that the environment should be
treated as if the applicants existing abstractions are
discontinued. That submission places significance on the
fact that it is the present applicant, Contact, that also
operates the Wairakei Power Station for which the major
abstractions of geothermal fluid from the Wairakei/Tauhara
geothermal system are taken. For this purpose we accept
the assumption that it is abstractions for that power station
which are the main cause of the subsidence and other
effects evident to the north and east of Taupo. However
7
8
9
10
11
12
[30] Aley concerned an application for land-use consent.

A key question in that case was what is relevant when
considering the environment, and whether that expression
can include what may be built as of right in terms of the
district plan. Justice Salmon held that in context the phrase
Re Geotherm Energy [1989] 2 NZLR 22 (CA).

The authority for the major extraction of geothermal fluid for the Wairakei Power Station (Consent 693292) is an existing authority under section
21(2) of the Water and Soil Conservation Act 1967 which became a deemed water permit under the Resource Management Act 1991, section
386(1)(b).
[1998] NZRMA 361 (High Court).
[1998] NZRMA 396 (High Court); [1998] NZRMA 513 (Court of Appeal).
High Court, Auckland, M1583/98; 18/11/98, Randerson J.
High Court, Dunedin, CP51/98; 25/3/99, Panckhurst J.
253
effects on the environment must refer to the existing

environment. Having quoted the definitions in the Act of
environment and of amenity values, the learned Judge
said13
[33] However in Lowe, which concerned a noncomplying

activity, Justice Panckhurst described the process to be
followed in this language 16
As recognised in Bayley it is essential to begin
further a consideration of what was lawfully being
done on the site prior to the extensions, or what
could be done there as of right.
Just because a plan allows the construction of

buildings to a certain maximum height and bulk
does not mean that advantage will necessarily be
taken of those rights. If the nature of a proposal
requires a discretionary activity consent application
to be made an overall exercise of discretion under
sections 104 and 105 an application of the
principles in Locke and Rudolph Steiner could
mean that full advantage might not be able to be
taken of the maximum provisions set by the rules.
[34] In King v Auckland City Council , 17 Justice

Randerson remarked that in principle the Court of Appeals
approach is to apply to both unrestricted and restricted
discretionary activities, and observed that there may well
be practical difficulties in applying Bayley in other cases.
[35] We have to consider how those authorities guide the
interpretation of the term environment in section
104(1)(a) in relation to the application for consent to
abstract geothermal fluid. That application is not classified
as a restricted discretionary activity. However there is no
suggestion that in identifying the environment there are
any activities permitted as of right by a plan that should be
taken into account. Rather the issue is whether activities authorised
by the deemed water permit should be taken into account. That
permit is currently being exercised, so we do not need to consider
the application to this case of the remark by Justice Salmon that
the existence of permitted activity rights under a plan does not
mean that advantage will necessarily be taken of those rights.
Therefore we do not need to attempt to resolve the uncertainty
about the scope of the Court of Appeals remarks that was identified
by Justice Randerson, or to overcome the difficulty in applying
them.
On this basis a consideration of the effect on the

environment of the activity for which consent is
sought requires an assessment to be made of the
effects of the principles on the environment as it
exists. The activity for which consent is sought
is in the present instance the building that is
proposed not just those aspects of the development
which have had the effect of requiring a
discretionary activity consent.
[31] In delivering the judgment of the Court of Appeal

in Bayley, Justice Blanchard quoted those passages from
Justice Salmons judgment in Aley, and said 14
We would add to the penultimate sentence or as it
would exist if the land were used in a manner
permitted as of right by the plan.
[32] In his judgment in McAlpine, Justice Randerson said

of that passage in the Court of Appeals judgment in Bayley
15
[36] Mr Robinson cited a land-use decision in which the

Environment Court had followed the approach endorsed
in Aley.18 He also referred to Arrigato Investments v Rodney
District Council 19 , a decision about a noncomplying
subdivision in which the Environment Court had held that
for the purpose of deciding whether the effects of the
activity were minor, the effects are to be assessed against
the background of the entire situation at the time of the
application environment.20 The Court said
I must confess to some difficulty in reconciling these

additional words with Salmon Js comments in Aley
which proceed on the basis that, in the case of an
unrestricted discretionary consent application, the
whole development is to be considered and not just
those aspects of the proposal which require
consentThe addition of the words suggested by
the Court of Appeal appears to qualify Salmon Js
conclusions to the point of negating them if they
are intended to apply to unrestricted discretionary
consent applications. The Court of Appeals
judgment at pp 522-523 suggests that the additional
words may have been intended to apply only to
restricted discretionary consent applications.
Certainly it was in that specific context that the
Court of Appeals remarks were made.
13
14
15
16
17
18
19
20
The entire situation includes the whole of the

circumstances and includes a consideration of the
evidence having regard not only to the existing
environment but also to the credible or likely
variations to that existing environment in the light
of existing resource consents and/or evidence
relating to a development as of right.
[1998] NZRMA 377.

[1998] NZRMA 522.
Page 9.
Page 17. (It is not evident from the Panckhurst Js judgment in Lowe that Randerson Js judgment in McAlpine had been referred to Panckhurst
J.)
High Court Auckland CP519/99; 1 December 1999, Randerson J.
OBrien v Upper Hutt City Council Environment Court Decision W91/99.
Environment Court Decision A115/99.
Citing Lowe v Dunedin City Council (High Court, Dunedin CP51/98; 25/3/99, Panckhurst J).
254
the words the environment as it exists must as

a matter of common sense include any likely changes
to that environment in the immediate or near future.
Whether or not any such changes are likely us a
matter to be determined from the evidence. Clearly
hypothetical or fanciful activities, as opposed to
credible activities based on the evidence, should
not be considered.21
into account further effects of past abstraction, and effects

of further abstraction authorised by existing consents held
by Contact or by others, including the deemed water permit
which is to expire in 2001, and the water permit to abstract
fluid at Te Mihi that is to expire in 2013.
[39] In short, we largely accept the submissions of
Contact on this point, and we do not accept the submissions
of the District Council, Taupo Hot Springs Limited and
Akinra Holdings Limited. The interpretation we have
adopted addresses the distinction, referred to by Mr
Kember, between land-use consents (which are perpetual),
and water permits (which are for fixed terms). As in the
1991 Planning Tribunal decision cited by Mr Robinson,
we intend no implication about the decision of future
applications for abstraction from the geothermal system,
[37] Mr Robinson also cited decisions on appeals about

resource consents within regional councils jurisdictions
where the Environment Court had assessed the effects on
the environment as it existed.22 In addition, counsel referred
to a 1991 decision of the Planning Tribunal on an appeal
under the Water and Soil Conservation Act 1967 about
taking geothermal fluid from the Wairakei reservoir.23
Criticism had been made of the use of a mathematical
model of the system which assumed continued taking from
the reservoir for the Wairakei Power Station, as there was
a question whether some of the existing abstraction was
authorised. The Tribunal recorded that it would be
inappropriate to express any view about that, and said 24
[40] We accept that in practice there may be difficulty in

distinguishing future effects on the environment that are
caused by abstractions which are part of the baseline
environment, from those which would be caused by the
proposed abstractions that are the subject of the resource
consent application now before the Court. However the
difficulty of making the findings required should not affect
the correct interpretation of the statutory provision.
the existence of the power station and the

established use of geothermal fluid from Te Mihi
to supplement that from the borefields so as to
produce electricity to its capacity, provide a
sufficient basis for foreseeing continued future
taking of sufficient fluid to generate 157MWe at
the Wairakei Power Station. We repeat, that is not
to say that the rights to do so should be granted.
But it is to say that a grant is capable of being
foreseen. It should not be ignored for the purpose
of assessing the effect of the present application.
Standard of proof
[41] The District Council submitted that to grant the
consents, the Court must have a high degree of assurance
and certainty about the extent, location and probability of
adverse effects and that the effects can and will be avoided
or remedied, or very substantially mitigated. The
respondents contended that the applicant had not produced
the compelling evidence required to satisfy the Court that
the potential impact of the effects will not occur. Counsel
for the Tauhara Middle Trusts submitted that because there
is not enough detailed scientific knowledge about the
southern part of the Tauhara Geothermal Field to be able
to predict its performance as a result of the drawdown of
fluid from the northern part of the field, a very conservative
approach is called for.
[38] For the present purpose we have reached an

understanding of the term environment in section
104(1)(a) that would be consistent with the definition of
that term in section 2, with the authorities of the superior
Courts, with the way in which they have been applied by
the Environment Court, and with the approach taken by
the Planning Tribunal in the case last mentioned. We refer
to the environment on which the actual and potential effects
of allowing the proposed abstraction are to be considered.
We hold that consideration is to be given to the effects on
the environment as it actually exists now, including the
effects of past abstraction of geothermal fluid from the
system, whether by Contact or anyone else. In considering
the effects in the future of allowing the proposed
abstraction, we hold that we have to consider the
environment as it is likely to be from time to time, taking
21
22
23
24
[42] Those submissions, and the response to them on

behalf of Contact, were said to have to do with the standard
of proof to be applied by the Court in deciding this appeal.
Having considered the submissions on this topic, we have
concluded that they do not relate to the standard of proof
of facts on which findings have to be made. Rather, we
Paragraphs 91and 92, page 50.

Auckland City Council v Auckland Regional Council Environment Court Decision A28/99; and Kaikaiawaro Fishing Co v Marlborough District
Council Environment Court Decision W84/99.
Geotherm Energy v Waikato Regional Council Planning Tribunal Decision A58/91.
Page 32, last paragraph.
255
consider that they are arguments relevant to the exercise

of the discretionary judgment under section 105(1) to grant
or refuse the consents sought. We will address those
submissions in that context, later in this decision. On the
question of standard of proof as such, we adopt the
submission of counsel for the respondents, Mr Taylor, that
in these proceedings there is no burden of proof on any
party, only an obligation on a party who asserts a fact to
present evidence in support of it, and the standard of proof
required is on the balance of probabilities, and should
reflect the gravity of the situation.25
about the level of effects. He agreed that if the Court

concluded that his concerns about uncertainty in that regard
were unfounded, it would follow that the proposal is
consistent with the regional policy statement.
[47] The policy referred to by Mr Brockelsby seeks to
avoid, remedy or mitigate effects on the characteristics of
the regional geothermal resource. At the hearing of this
appeal the opponents made much of claimed adverse effects
on the environment of allowing the activities proposed.
However no party or witness suggested that the modified
proposal (for abstracting up to 20,000 tonnes per day of
geothermal fluid) would have any effects on the variety of
characteristics of the regional geothermal resource.
RELEVANT PLANNING INSTRUMENTS

Waikato regional policy statement
[48] The regional policy statement also promotes the

concept of a single tapper for development fields on the
basis that sustainable management is promoted by unified
management that will optimise use of the resource. Mr
Brockelsby conceded that it would be difficult to achieve
this policy in respect of the Wairakei-Tauhara system,
(because at the time of the hearing Mercury Geotherm held
consents to abstract 11,800 tonnes per day of fluid from it
for the McLachlan Power Station at Poihipi Road).
However the witness conceded that Contact is in an
advantageous position in this regard, as it manages the vast
majority of the reservoir use of the system. In crossexamination he agreed that in terms of the single tapper
policy, further development by Contact is at least not
inconsistent with that policy.
[43] By section 104(1)(c), the consent authority is to have

regard to any relevant regional policy statement or
proposed regional policy statement. The relevant proposed
regional policy statement is that for the Waikato region.
At the time of the appeal hearing, there was one reference
about the content of the proposed regional policy statement
outstanding. Since then, that reference has been withdrawn,
and the instrument can be regarded as operative.
[44] The policy statement refers to two classes of
geothermal systems: development systems and protection
systems. However it does not classify individual
geothermal fields that is left to the regional plan. The
Wairakei-Tauhara geothermal system is classified in the
proposed regional plan as a development system.26
[49] The regional policy statement also contains

objectives and policies relevant to downstream uses of,
and recovery of resources from, waste geothermal water,
reduction of biodiversity (which Mr Brockelsby considered
could result from induced changes to surface geothermal
features), and efficient use of resources to produce energy.
[45] The regional policy statement contains this relevant

objective and policy 27
The variety of characteristics of the regional
geothermal resource maintained. [sic]
Policy 4: Allow use and development of Development

Geothermal Systems while avoiding, remedying or
mitigating effects on the characteristics of the
regional geothermal resource.
[50] Mr M B Chrisp, an environmental planning

consultant, deposed that because of the primacy of regional
policy statements in the hierarchy of planning instruments
under the Act, considerable weight should be placed on its
provisions. That primacy derives from provisions that
regional plans and district plans are not to be inconsistent
with the relevant regional policy statement.28
[46] Mr M W Brockelsby, who is responsible for

managing the Regional Councils regulatory functions in
relation to geothermal operations, gave the opinion in
evidence that the proposal is not consistent with Policy 4
in that there is insufficient assurance that the adverse effects
of the proposal would be adequately avoided, remedied or
mitigated. In cross-examination the witness explained that
this view was premised on there being insufficient certainty
25
26
27
28
[51] The witness concluded that apart from the taking

and discharging of geothermal fluid, all other aspects of
the proposal are reasonably benign in terms of
environmental effects and would not be inconsistent with
the regional policy statement.
Trans Power v Rodney District Council Planning Tribunal Decision A85/94.

Proposed Waikato Regional Plan , Method 7.1.3.1.
Section 3.7.2
Resource Management Act 1991, sections 67(2)(c) and 75(2)(c)(i).
256
[52] In respect of the single tapper policy, this witness

deposed that due to the combination of the legally
authorised use and development of the deep geothermal
resource for energy production by Contact and its
predecessors, and its access to land overlying the most
productive sector of the Tauhara part of the system, that
policy can only effectively be exercised by confirming
Contact as the co-ordinating party.
Environment Court was lodged in the following month.

The Regional Council notified the proposed regional plan
in September 1998. The question therefore arises whether
the proposed regional plan is relevant for the classification
of activities of the kinds that the proposed regional plan
would control.
[58] Contact submitted that it is, by reference to the
Resource Management Amendment Act 1997. Section 88A
of that Act provides that where classification of an activity
is altered after a resource consent application was made,
as a result of notification of a proposed plan, the application
is to be processed and completed as an application for the
type of activity specified in the plan or proposed plan
existing at the time the application was made. However
section 78 of that Amendment Act provides that where a
resource consent application had reached the stage of a
hearing having commenced, the principal Act continues
to apply as if the Amendment Act had not been enacted.
The Amendment Act commenced on 17 December 1997,
after the primary hearing of the application had
commenced. Accordingly Contact maintained that section
88A is not applicable, and that the Court should apply the
proposed regional plan to determine the status of the
regional resource consent applications under appeal.
[53] Mr Chrisps opinion was that the policy framework

of the regional policy statement
sets a clear resource management mandate for the
continued use and development of defined
development geothermal systems within the
Waikato region, such as the Wairakei-Tauhara
Geothermal System
[54] That opinion was not challenged and we accept it

and find that the proposal is consistent with that instrument.
Transitional Waikato regional plan
[55] By section 104(1)(d) the consent authority is to have
regard to any relevant objectives, policies, rules, or other
provisions of a plan, a term which includes the transitional
Waikato regional plan. This instrument comprises a
collection of rules prepared under legislation repealed by
the Resource Management Act 1991. The provisions that
are relevant are general authorisations under the Water and
Soil Conservation Act 1967 for taking and discharging
water and contaminants. Because they authorise only
relatively small quantities, resource consents are required
for the abstractions and discharges associated with the
current proposal. The resource consents are innominate or
unclassified, and are to be considered as if discretionary
activities. 29
[59] That was not contested by any of the other parties.

However Mr Brockelsby remarked that the rules of the
proposed plan as notified (by which certain activities would
be permitted activities) have been submitted against, and
the submissions have not yet been decided. He understood
the effect of section 19(1) of the Act to be that those
activities are to be considered as requiring resource consent
under sections 13, 14 and 15 as innominate activities.
[60] Section 19(1) 30 provides
19. Changes to plans which will allow activities
(1) Where
(a) A new rule, or a change to a rule, has been
publicly notified and will allow an activity
that would otherwise not be allowed unless
a resource consent was obtained; and
(b) The time for making or lodging submissions
or appeals against the new rule or change has
expired and
made or lodged; or
(ii) All such submissions have been withdrawn
or rejected and all such appeals have been
withdrawn or dismissed
Proposed Waikato regional plan

[56] The detailed methods and rules to give effect to the
objectives and policies of the regional policy statement
are in a proposed regional plan, which is at an early stage
in its development. Over 500 submissions related to the
geothermal section of the proposed plan, and decisions on
submissions have not yet been issued.
Classification of activities
[57] The resource consent applications were made by
Contact in September 1996, and the primary hearing of
them started in September 1997. The primary decision was
given in April 1998, and Contacts appeal to the
29
30
then, notwithstanding any other provision of this

Act, the activity may be undertaken in accordance
with the new rule or change as if the new rule or
Te Aroha Air Quality Protection Appeal Group v Waikato Regional Council (No 2) (1993) 2 NZRMA 574; Tutton Sienko & Hill v Canterbury
Regional Council Planning Tribunal Decision W100/95.
As amended by section 5(1) of the Resource Management Amendment Act 1996.
257
change had become operative and the previous

rule were inoperative.
ground that the proposed taking and discharge are classified

as discretionary activities. Other activities involved in
Contacts proposal which require resource consent under
the proposed regional plan are also classified as
discretionary activities.
[61] We do not accept that this subsection has the effect

described by Mr Brockelsby. In paragraphs (a) and (b) the
subsection describes two cases. Subparagraphs (i) and (ii)
of paragraph (b) are alternative conditions of the case
described in paragraph (b). Because the word and appears
at the end of paragraph (a), it is only where the cases
described in both paragraphs are applicable that the
operative part of the subsection (in the words following
paragraph (b)(ii)) becomes effective.
Other relevant provisions of the proposed regional plan

[67] Surface waters in the application area are classified
in the proposed regional plan as Waikato Surface Water
class, the management purpose of which is to
maintain existing aquatic life, ecosystems,
aesthetic values and suitability of water for human
consumption (after treatment).
[62] As we understand the position from his evidence,

the proposed plan as publicly notified contains new rules
that would classify certain activities as permitted activities.
They are activities that would, by operation of sections
13, 14 and 15, otherwise not be allowed unless resource
consent is obtained. However by being classified as
permitted activities they would be allowed, so the case
described in paragraph (a) of the subsection is applicable.
[68] The plan sets standards about effects on aquatic life,

water temperature, colour and clarity, discharge of
suspended solids and effects on potability. These are the
subject of submissions which have not yet been decided.
Taupo district plan
[63] We also understand from Mr Brockelsbys evidence

that those rules have been submitted against, that the
submissions seek amendment to the rules so that the
activities to which they apply would not longer be
permitted activities, but would require resource consent.
We also understand from his evidence that those
submissions have not yet been decided. So neither of the
conditions described in subparagraphs (i) and (ii) is met,
and the case described in paragraph (b) is not applicable.
Since both paragraphs (a) and (b) need to be applicable
for the operative part of the subsection to take effect, we
hold that it does not take effect in this case.
[69] The District Council has not yet notified a district

plan prepared for the Taupo district under the Resource
Management Act 1991. In the meantime the transitional
district plan continues to be parts of the district schemes
prepared under the Town and Country Planning Act 1977
of the former Taupo Borough and the former Taupo County.
[70] The modified proposal would affect land in nine
different zones. The Taupo District Council in its capacity
as consent authority acknowledged that the transitional
district plan intended to provide for geothermal energy
development in the area, and that the proposal is not
contrary to the objectives and policies of the plan. Most of
the proposed land-use activities are permitted activities in
terms of the transitional district plan. The District Councils
Manager of Planning and Regulatory Services deposed that
in most respects the land-use element of the proposal is
little different in character from the industrial activity
currently operating near the site of the proposed plant.
[64] Accordingly we accept the submissions for Contact,

and hold that the activities for which resource consent was
sought from the Regional Council are to be classified in
terms of the proposed regional plan, as notified.
[65] In terms of the proposed plan as notified, the
Wairakei-Tauhara system is classified as a development
geothermal system, 31 and sustainable management of the
resource is interpreted by the plan to mean
Cross-boundary questions and s 105(2A)

[71] As already mentioned, the proposal includes
activities in nine separate zones; and in one part of one
zone (the Farm and Farmlet zone) the proposed activities
are discretionary activities, and in another zone the activity
(maintenance of existing wells for monitoring) is a
noncomplying activity.
Extraction of high enthalpy fluid in a way and at

a rate which maintains the flow of this fluid for
future generations, while avoiding, remedying and
mitigating any associated adverse effects.
[66] Taking and discharging over 500 tonnes per day of

geothermal fluid would be a controlled activity if stated
standards and terms are met. However the proposal does
not meet all the standards and terms, and it was common
31
[72] Contact acknowledged that the general practice is

to bundle all relevant activities and assess them by
Method 7.1.3.1
258
reference to the most stringent classification applicable

under the relevant district plan, citing Bird v South
Canterbury Car Club 32 and Aley v North Shore City
Council.33 However it submitted that where a proposal
crosses zone boundaries, that approach is not applicable,
and that the classification should be considered separately
for each zone. Contact contended that this method had been
adopted by the Court in Moody v Wellington City Council34
and appeared to have been adopted in Bird v South
Canterbury Car Club. Mr Robinson argued that this
method is sound because each zone has its own objectives
and policies which require separate consideration.
[77] The Environment Court decision in Moody was

given earlier than the judgment of the High Court in Aley,
so the Environment Court did not have the benefit of Justice
Salmons reasoning. In any event, they are not in conflict.
The relevant passage in Aley concerned the classification
of the status of the resource consent application, that is,
the proposal was to be treated as wholly a discretionary
activity, even though it needed resource consent only in
the respects already mentioned. In Moody, the question
was not the classification of the proposal, but the process
of considering it. The Court considered the elements in
each zone separately, according to the provisions of the
plan applying in that zone.
[73] The effect for this case would be that only the activity
to be carried on in the Rural zone (monitoring existing
wells) would be classified as a noncomplying activity.
Because the adverse effect of that activity on the
environment would be minor, the test in section 105(2A)
would be met, and consent could be granted.
[78] We accept that the classification of the status of the

land-use aspects of Contacts proposal has to be wholly
one, not a hybrid. The most stringent status is that the
maintenance of the well TH3 is a noncomplying activity
in the Rural zone. Accordingly the land-use activities have
to be treated as a noncomplying activity. However in
deciding the appeal we must, of course, consider the
various elements by reference of the provisions of the zones
in which they are to be located. To do so would not offend
Justice Salmons reasoning. It would not add to the
complexity of already complicated legislation, but would
avoid the artificiality of the process that the Environment
Court sought to avoid in Moody. Nor would it limit rights
of objection, as the opponents have had full opportunity
to present their cases in opposition to all elements of the
proposal.
[74] In the alternative, if all land-use activities have to

be considered as noncomplying activities, it was submitted
that the district plan recognises and provides for geothermal
development within the application area, being a permitted
activity in 8 of the 9 zones where activities would occur. It
was contended that on this basis the land-use activities are
not contrary to the objectives and policies of the plan.
[75] Aleys case did not involve a proposal extending
across different zones. Rather, discretionary activity
consent was required in respect of non-compliance with
parking requirements, occupation of part of the site
designated as proposed service lane, and non-compliance
with car-park screening requirements. Justice Salmon
confirmed for the Resource Management Act regime the
practice that a proposal has to be treated as one activity,
not a hybrid involving different classes of consent. The
learned Judge gave two reasons: first, that a hybrid concept
would add unnecessary complication; and secondly that
adopting a hybrid approach would have the result of
limiting rights of objection.
Application of section 375

[79] Contact submitted, in reliance on section 375 of the
Act, that although they are not public utilities, pipelines
for supplying geothermal fluid and river water for the
project would be permitted activities. Mr Robinson referred
to World Services v Wellington City Council 35 in which
the Planning Tribunal had treated classification of a
receiving pole for a direct radio signal as a public utility
as relevant to classification of the pole and associated
activities as a permitted use. Counsel argued that the
Tribunal had not explained why that should be relevant,
and contended that section 375 should be given its ordinary
and natural meaning.
[76] In Moody v Wellington City Council the

Environment Court had to consider a subdivision of land
where the access was in an open space zone and residential
lots in an outer residential zone. It was contended that the
two sites should be treated as if they were bundled together
in the more stringent of the zones. The Court did not agree
with that approach, stating that it would be unfair to the
subdivider to have the provisions of the open space zone
applied to prevent subdivision of the land zoned outer
residential.
32
33
34
35
36
[80] We quote section 375 of the Act 36

375. Transitional provisions for public utilities
(1) Subject to subsection (2), every district plan
or any proposed district plan constituted under
section 373 shall be deemed to include
Planning Tribunal Decision C27/94.

[1998] NZRMA 361 (HC).
Environment Court Decision W31/98.
Planning Tribunal Decision W90/93.
As amended by section 171 of the Resource Management Amendment Act 1993.
259
(a) A rule that each of the following is a permitted

activity throughout the district:
(ii) Household, commercial, and industrial

connections to gas, water, drainage, and sewer
pipes:
(iii) Water and irrigation races, drains, channels,
and pipes and necessary incidental equipment:
:
(vi) Pipes for the conveyance or drainage of water
or sewage, and necessary incidental
equipment including household connections:
(2) The application of this section may be excluded

or modified at any time in accordance with the
First Schedule.
(3) This section shall cease to have effect in a
district on the date that the proposed district plan
for the district become operative, not being a
proposed district plan constituted under section
373.
zones except the Industrial Manufacturing zone and the

Rural zone. As mentioned already, the only activity
proposed in the Rural zone is operation and maintenance
of existing wells. Permitted activities in the Industrial
Manufacturing zone include industrial processes that are
not included in Part A of the 2nd Schedule of the Clean Air
Act and that comply with other performance standards of
the zone. The only activity proposed in that zone is the
construction and operation of geothermal-steam supply
pipes. We have already stated our finding that by section
375 of the Act the district plan is deemed to contain a rule
by which the pipes are permitted activities throughout the
district. The outcome is that the land-use activities proposed
require resource consent in three respects only. The first is
for operation and maintenance of existing wells in the Rural
zone. (The existing well in that zone (TH3), is not proposed
to be connected to the power station.) The second is that
for the part of the application area in the Farm and Farmlet
zone which lies to the east of the area identified on the
relevant planning map as Tauhara Geothermal Field (where
a backup reinjection well and associated pipes are intended)
geothermal energy extraction is a discretionary activity.
The third respect in which resource consent may be
required is for buildings, structures and excavations if the
temperature of the ground measured 1 metre below the
surface is more than the ambient temperature. The criteria
for granting consent (as controlled activities) are that the
site is stable, safe and free from adverse geothermal effects
at the time and is likely to remain so in the future. Buildings
are not allowed where the temperature at that depth is more
than 60 degrees Celsius above the ambient.
[81] The question here is whether section 375(1)(iii) and

(iv) apply to the pipes for conveying water and geothermal
fluid for the project. The heading to the section refers to
public utilities but the proposed pipes would not be public
utilities.
[82] By section 5 of the Interpretation Act 1999, the
meaning of an enactment is to be found from the text and
in the light of its purpose; and headings to sections may be
indications of the meaning. Examination of the text of
section 375 shows that Parliament expressly applied the
section to household, commercial, and industrial
connections to gas, water, drainage, and sewer pipes, and
to household drainage and sewage connections, none of
which are public utilities. We therefore conclude that
although the heading of section 375 refers to public utilities,
the section is not limited to public utilities. To the extent
that this conclusion may be inconsistent with the decision
in World Services v Wellington City Council, that derives
from the replacement of the Acts Interpretation Act 192437
by the Interpretation Act 1999.
[85] There are a number of designations of land within

the application area. Some of them are not sufficiently
defined in the transitional district plan, and the public
authority responsible is not identified in some cases. Where
designations are adequately defined and the responsible
authority identified, the written consent of the authority
will be needed for works in, on, under or over designated
land, for works that would prevent or hinder the project or
work to which the designation relates.38
[83] Accordingly we hold that the section is capable of

applying to pipes for water and geothermal fluid for
Contacts project. We also hold that, in the absence of
provision made under the First Schedule of the Act
excluding or modifying its application, the district plan is
deemed to contain a rule by which those proposed pipes
are permitted activities throughout the district.
[86] The District Council suggested that Contacts

proposal would hinder the Councils project for a bypass
road. However there is no designation in the district plan
for that work, and indeed no requirement for a designation
for it has been made.
[87] The written consents required for works affecting
designated land are not resource consents as such. They
do not need to be obtained at the same time as resource
consents. Because Contacts proposal is for a purpose other
than the designated purposes, it is the other provisions of
Other relevant provisions of district plan

[84] Geothermal power generation (or words to that
effect) is classified as a permitted activity in all the relevant
37
38
By section 5 of the Acts Interpretation Act 1924, headings and marginal notes were not to affect the interpretation of an Act.
Resource Management Act 1991, section 176(1)(b).
260
the district plan which govern whether the proposed

activities are to be allowed or not. 39 To the extent that the
requiring authorities can be identified, and that the
designations are adequately defined in the district plan,
Contact would be able to seek written consents from them
if the resource consents sought by this appeal are granted.
SUFFICIENCY
that Dr Alliss hypothesis could only be tested by drilling

a deep well in the southern part of the field. Counsel for
the Trusts also contended that because the proposed
extraction of geothermal fluid would amount to mining
the heat from the geothermal structure, there needs to be a
much better understanding of the entire resource (from
drilling wells to map the geological strata) than at present.
OF INFORMATION
[92] On the suggestion on behalf of the Trusts that a deep

well be drilled in the southern part of the field, Mr Robinson
remarked that the suggestion may be connected with the
Tauhara Middle 15 Trusts plans for its own geothermal
power station in that area.
[88] The respondents raised as an issue whether sufficient

information had been placed before the Court in terms of
section 88 of the Act. Counsel for the respondents referred
to the appellants intent to carry out monitoring and
investigation. He submitted that much of the investigation
and monitoring involves work of a nature and type that
could, and should, have been undertaken prior to making
the application. Mr Taylor referred in particular to
monitoring suggested by Dr M J Grant, much of which
Contact proposes would be carried out if the consents are
granted. Counsel observed that once consent is granted it
cannot be recalled, yet information which is obtained in
the monitoring and investigation phase might well show
that consent should never have been granted in the first
place.
[93] Even where an applicant has provided the

information required by section 88, further information
may sometimes be required to enable those who might wish
to make submissions to be able to assess the effects on the
environment and on their own interests.40 Opponents of
proposals often claim that more information is needed
before a sound decision can be made. They are sometimes
right, in that when further information is obtained, it
becomes evident that the proposal does not deserve
consent. We also understand that proponents of a proposal
do not wish to spend on investigations any more than they
have to, until they know whether they will obtain resource
consents at all. The issue becomes one of judgment in the
circumstances of each case.
[89] The evidence relevant to that submission was that

of Mr M W Brockelsby, the Regional Councils official
responsible for managing its regulatory functions in
relation to energy-related operations, including geothermal
operations. In cross-examination that witness agreed that
the application met the test in section 88. Rather he
considered that there was not sufficient information to
provide certainty as to effects, and that was why the
application had originally been declined. Mr Brockelsby
agreed that the point is another way of saying that consent
should not be granted, rather than being a discrete
jurisdictional issue.
[94] The responsibility for that judgment falls on the

applicant, which carries the risk that on the information
before it, the consent authority may find that it is not
persuaded that the resource consent should be granted. The
applicant has then to decide whether to appeal, or to obtain
further information and apply again, or to abandon the
project.
[95] If consent is granted to works that will provide
opportunities to gain more information, a consent authority
is likely to require that those opportunities are taken and
the further information made available. Monitoring the
effects of the exercise of resource consents is routinely
required, as is the identifying of contingency measures that
might be implemented if the effects are materially worse
than those expected.
[90] Counsel for the Tauhara Middle Trusts submitted

that there is not enough detailed scientific knowledge about
the southern part of the Tauhara Geothermal Field to be
able to predict its performance as a result of the drawdown
of fluid from the northern part of the field. The Trusts
contended that if Contact wishes to develop the northern
part of the field, it should first have to undertake detailed
exploration work to determine the geophysical nature of
the southern part of the field, and the nature of the
interconnection between surface features and deeper
aquifers in both parts.
[96] In this case the relevant consent authority accepted

that Contact had provided the information required by law.
Mr Brockelsby agreed that the question whether there is
enough information about the likely effects is a matter that
goes to the ultimate judgment whether consent should be
granted or refused.
[91] Mr Auld submitted that information is the key to

the reliability of the model to predict future events, and
39
40
Ibid, section 176(2).

Affco v Far North District Council [1994] NZRMA 224; 1B ELRNZ 101.
261
[97] There is generally not enough information about

underground aquifers to enable predictions of the response
and resultant effects to be made with any certainty. Consent
authorities have to make judgments on the information
before them and having regard to all the relevant provisions
of the Act.
were not opposed to certain developments of geothermal

resources, so long as they are in accordance with their
tikanga and kawa.
[102] The witness urged that tikanga Maori be recognised
and provided for in four ways. The first was by exercise of
kaitiakitanga, a matter we will address separately. The
second way was for the Court to require Contact to provide
appropriate training for tohunga selected by Ngati
Tuwharetoa to better understand new technologies and
innovations, so they can be informed and more actively
involved in proposals to develop geothermal resources.
The third way was for the Court to require that tohunga
selected by Ngati Tuwharetoa are involved at all levels of
the proposed development to provide cultural and spiritual
expertise and advice. The fourth way in which Mr TutuaNathan urged that tikanga Maori should be recognised and
provided for was that Court require that the Tuwharetoa
Maori Trust Board receive and have opportunity to fully
consider and be consulted on all relevant information, data
and environmental impacts reports relating to baseline
study and any changes to natural phenomena which occur
over time; and any peer-review panel include 50 percent
representatives of the iwi.
[98] That is the heart of the issue here. As their cases at

the appeal hearing demonstrated, the respondents and the
Trusts were able to assess the effects on the environment
and on their own interests as well as anyone could. We do
not consider that the Court should refuse to give a decision
on the merits for want of further information. Rather we
should make a judgment on the resource consent
application, bearing in mind the cases for the respondents
and the Trusts that there is not sufficient information to
justify findings that would support granting consent for
the abstraction and reinjection of geothermal fluid.
MAORI ISSUES
Relationship
[99] It was the case for the Tauhara Middle Trusts that
the Tauhara hapu have a special relationship with the
Tauhara geothermal resource, which they regard as a highly
valued taonga. They seek exclusive and undisturbed
possession of the resource; they do not wish Contact to
have access to any more of what counsel described as the
limited and non-renewable geothermal resource from the
Wairakei/Tauhara geothermal system; but they recognised
that their claim to possession of it is not a matter for the
Environment Court to decide.
[103] Mr Tutua-Nathans claim, in reliance on section

14(3)(c), that the taking of geothermal fluid had to be in
accordance with tikanga Maori was not the subject of any
submission by counsel for the Trusts. Mr Robinson
submitted that Mr Tutua-Nathans evidence in that regard
had been based on a misreading of the section, that Contact
was entitled to rely on section 14(3)(a), and that section
14(3)(c) does not apply to the present applications.
[104] We quote the relevant passages of section 14(3) of
the Resource Management Act 1991 41
[100] Counsel for the Trusts, Mr Auld, presented a

submission that in determining what is sustainable for a
resource which is a taonga of Maori, consideration is
required of whether it is sustainable from a Maori
perspective, and that only Maori can answer that question.
However in answer to a question from the Court, counsel
accepted that in this appeal, as a matter of law, the Court
has the decision whether the proposal amounts to
sustainable management of natural and physical resources
as described by section 5 of the Act.
14. Restrictions relating to water (1) No person

may take, use, dam, or divert any
(a) Water (other than open coastal water); or
(b) Heat or energy from water (other than open
coastal water); or
(c) Heat or energy from the material surrounding
any geothermal water unless the taking, use, damming, or diversion
is allowed by subsection (3).
(3) A person is not prohibited by subsection (1)

from taking, using, damming, or diverting any
water, heat, or energy if (a) The taking, use, damming, or diversion is
expressly allowed by a rule in a regional plan and
in any relevant proposed regional plan or a
resource consent; or
[101] An environmental resource planner called on behalf

of the Trusts, Mr T Tutua-Nathan, asserted that any
geothermal development must be consistent with tikanga
Maori, and relied on section 14(3)(c) of the Resource
Management Act 1991. He deposed that Contact had not
provided for the protection of Ngati Tuwharetoa interests
and rangatiratanga over water and taonga such as
geothermal resources. He explained that Ngati Tuwharetoa
41
Resource Management Act 1991, section 14(3), as amended by section 12 of the Resource Management Amendment Act 1993.
262
(c) In the case of geothermal water, the water,

heat, or energy is taken or used in accordance
with tikanga Maori for the communal benefit
of the tangata whenua of the area and does
not have an adverse effect on the environment
those reasons we do not accept that such a condition should

be imposed.
[111] Section 6(e) of the Resource Management Act
directs functionaries, as a matter of natural importance, to
recognise and provide for the relationship of Maori and
their culture and traditions with their ancestral lands, water,
[105] The effect of subsection (3) is to describe cases that

are exceptions from the general prohibition in subsection
(1). Because the paragraphs in the subsection are separated
by the word or, each case is independent of the others.
[112] We consider that if the resource consents are granted,

the relationship between Maori and the Tauhara geothermal
field could well be recognised and provided for by
conditions allowing for exercise of kaitiakitanga in
provision of information and offering advice on Maori
cultural and spiritual matters. However the conditions
would reflect the position at law that decisions about the
use of the geothermal resource are made by the consent
authority appointed under the Resource Management Act
1991 (or by this Court on appeal). It would not be
appropriate for the Court to presume that the claim by
Tuwharetoa to rangatiratanga over the resource will be
successful. That is not for the Environment Court to decide.
[106] We have already found that the Wairakei-Tauhara

geothermal system is classified by the proposed regional
plan as a development geothermal system, and that the
taking of geothermal fluid proposed by Contact is classified
by that plan as a discretionary activity.
[107] By this appeal Contact is pursuing its application
for resource consent for the proposed taking. If the resource
consent is granted, the taking would be expressly allowed
by a resource consent. Contact would be entitled to rely
on section 14(3)(a) as authority for the taking, as an
exception to the general prohibition in section 14(1). It
would not be entitled to rely on section 14(3)(c), because
the case described in that paragraph is not applicable to its
taking of geothermal fluid.
[113] We have also considered Mr Tutua-Nathans opinion

that any peer-review panel include 50 percent
representatives of the iwi. It is our understanding that
Contact has proposed a peer-review panel to provide
technical advice to the Regional Council which is
independent both of Contact and of other stakeholders.
Similar bodies have been provided in respect of major
projects, such as mining cases, where independent
specialist expertise is appropriate to provide assurance for
the general public. The members of such a body are not
representative of any stakeholder, but act independently
in their professional responsibilities.
[108] We therefore accept Mr Robinsons submissions in

this regard and hold that section 14(3)(c) has no application
to the case. Accordingly we do not accept Mr TutuaNathans claim that Contacts proposals are required to be
done in accordance with tikanga Maori.
[109] We refer to Mr Tutua-Nathans desire that Contact
be required to provide appropriate training for tohunga to
better understand new technologies and innovations so they
could be informed and more actively involved in
geothermal proposals. In cross-examination the witness
agreed that there is a member of Tuwharetoa who is a
student completing a PhD degree course studying the
Tokaanu geothermal field, although he was not aware that
the student is sponsored by Contact.
[114] We consider that the witness misunderstood the role

of a peer-review panel. We hold that to require that half
the members be representatives of one of the stake-holders
would negate the purpose of the peer-review process. We
do not accept the witnesss opinion in that regard.
Kaitiakitanga
[110] The case presented to the Court by counsel for the

Tauhara Middle Trusts, Mr Auld, did not include seeking
a condition about training tohunga. Although it might have
been Mr Tutua-Nathans personal opinion that such a
condition was desirable, it is not evident to us that the
witness had appropriate knowledge and authority to
advocate it on behalf of the Trusts. Further, we doubt
whether such a condition would be for a resource
management purpose, or that it would fairly and reasonable
relate to the proposed abstraction and reinjection. 42 For
42
43
[115] It was the case of the Tauhara Middle Trusts that

members of the Tauhara hapu act as kaitiaki of Mt Tauhara
and of the Tauhara Geothermal Field, and that this includes
customary authority over the resource. Mr Auld
announced 43
The Trusts therefore seek a determination from
the Court that if the appellant is granted consent
it be obliged to enter into a meaningful
Newbury District Council v Secretary of State for the Environment [1981] AC 578, [1980] 1 All ER 731; Tesco Stores Ltd v State for the
Environment [1995] 2 All ER 636.
Submissions for Tauhara Middle Trusts, page 7, paragraph 22.
263
relationship with the trusts as kaitiaki of the

mountain, in a way as will give due recognition
to the mana whenua of the hapu.
[121] In practice, the Tauhara iwi would need to agree on

an identified person or persons to whom the consent-holder
could send the information, who would have the mandate
to offer a single stream of advice on behalf of them all,
who might liaise over cultural and spiritual observances,
and who would be available to take part in monitoring.
[116] The Trusts sought that recognition of their

kaitiakitanga be expressed in their having a future
involvement in the management of the resource in
consultation with those who exploit it, so there may be
active protection of the taonga, and to ensure that the timeframe of any exploitation is culturally acceptable.44
Treaty principles
that consultation by Contact with Maori had been
insufficient. He acknowledged that Contact had
endeavoured to open lines of communication with the
Tauhara hapu, and that it had been frustrated in its efforts
to identify a group who not only claim, but also actually
have, a mandate to represent them. Mr Auld announced
that at a meeting convened on 6 August 1999, the Tauhara
hapu had mandated Mr Tutua-Nathan to be their
representative to consult with Contact, and authorised him
to give evidence in this Court.
[117] Mr Tutua-Nathan testified that kaitiaki are decisionmakers over taonga within their areas of manawhenua, and
that kaitiakitanga includes the right to make decisions over
all levels of development of the taonga in accordance with
their tikanga. He deposed that this would require the use
of appropriate rituals and karakia to inform and seek
permission from atua, and to placate them.
[118] In response to the claims by the same witness that
Contact has duties to provide for Tuwharetoa interests and
rangatiratanga, Mr Robinson submitted that there is no
authority for such duties, and that the Court cannot transfer
its decision-making function to the iwi.
[123] It was Contacts case that it had made repeated

endeavours to consult with the Tauhara hapu, and had been
frustrated by an inability to identify anyone with a mandate
to speak for the hapu. Mr Tutua-Nathan confirmed that
proceedings in the Maori Land Court about representation
of Tauhara hapu on geothermal matters remained
unresolved.
[119] Section 7(a) of the Act directs functionaries to have

particular regard to kaitiakitanga. That has to be read in
context of an Act which entrusts decisions on sustainable
management of natural and physical resources to particular
classes of consent authorities. We hold that the Court cannot
meet a claim by kaitiaki to make decisions that is
inconsistent with the scheme of the Act which provides
for decisions to be made by regional councils and district
councils.
[124] In his testimony Mr B S Carey, Contacts

Geothermal Resource Manager, gave a detailed account
of Contacts attempts to consult with tangata whenua over
the current proposals. Following a meeting in mid 1995,
there were at least three hui in that and the following year
at which Contact sought to outline, and answer questions
about, the details and effects of the project, to seek to
understand cultural and resource management issues
associated with the project from the perspective of tangata
whenua, and to explore opportunities to work together. The
hui on 30 September 1995 had appointed a committee (the
Wharekawa Investigation Committee) to represent Tauhara
hapu in further discussions. Meetings had been held with
the committee and with Mr N Wall, Chairman of several
Maori land trusts with interests in Mt Tauhara and land
near the mountain. Mr Wall challenged in the Maori Land
Court the mandate of the committee to represent the
Tauhara hapu.
[120] As mentioned earlier, we consider that if the resource

consents are granted, particular regard may appropriately
be given to the kaitiakitanga responsibilities of the Tauhara
iwi in respect of the Tauhara geothermal field. That could
be done by conditions requiring that they are provided with
information, and allowing for them to offer advice about
Maori cultural and spiritual matters relevant to the exercise
of the resource consents. Although it would not be
appropriate to prescribe detailed conditions, it is to be
expected that the consent-holder would co-operate to a
reasonable degree in allowing the performance by kaitiaki
of rituals and offering of karakia on property occupied by
it for the purpose of exercising the resource consents. In
addition, Mr Carey stated in cross-examination by Mr Auld
that Contact was open to the possibility of Maori taking
part in a monitoring regime. That was not pursued by the
Trusts at the appeal hearing. However there may be room
for the kaitiakitanga responsibilities of Tauhara hapu to be
recognised in such a way too.
44
[125] The Wharekawa Investigation Committee was

disbanded at about the time of the primary hearings of the
resource consent applications by Contact and by the
Tauhara Middle 15 Trust. Then a representative group was
established as a result of discussions between Tauhara hapu
representatives and the Maori Land Court about the need
Ibid, page 8, paragraph 24.
264
to mandate a group to deal with geothermal matters at

Tauhara. Contact met with representatives of this group
several times over the latter part of 1998 and early 1999.
The group worked to set up a trust to be called Nga Hapu
O Tauhara Middle Charitable Trust, but it became apparent
that this new trust did not have the support of several of
the Tauhara hapu.
DEFERRAL OF CONSIDERATION
Grounds for deferral
[131] The District Council submitted that the Court should
defer a decision of the appeal. It contended that
consideration of the consents sought should be made in
the context of a close examination of how the extraction
and reinjection activities in the whole field might best be
managed, particularly to avoid adverse effects on the
environment at Taupo. Mr Vane observed that this might
be done in the context of applications for renewal of
consents for the Wairakei geothermal field. He argued that
to grant the consents now would make a pre-emptive
piecemeal increment to existing effects and permanently
establish those effects, particularly subsidence at Taupo
arising from extraction from the deep Wairakei reservoir.
Counsel urged that decision of the current applications for
the purpose of the Resource Management Act 1991 calls
for consideration of more than the economic use of the
geothermal resource. In particular he suggested that the
best management of the Wairakei-Tauhara geothermal
resource might be to repressurise the Tauhara field by mass
reinjection. Counsel observed that the Court could not
know that in this case.
[126] Contact had returned to the representative group that

had been in discussion with the Maori Land Court, to seek
clarification about who had the mandate to discuss
geothermal matters with Contact. Representatives of the
group advised Contact that the mandate needed to be
clarified.
[127] Mr Carey testified that Contact has a commitment
to consult with Tauhara hapu on the issues associated with
the Tauhara geothermal field, and expressed the conclusion
that Contacts attempts to consult with Tauhara hapu had
been frustrated due to lack of mandate.
[128] Mr Carey was not cross-examined about the detail
of his evidence about Contacts attempts at consultation.
Mr Tikitu-Nathan had not been present in Court when Mr
Carey gave his evidence, and in cross-examination he
agreed that he had not read Mr Careys evidence. We accept
Mr Careys testimony in that regard as reliable.
Expiry of Wairakei consents
[129] Section 8 of the Resource Management Act 1991

requires that functionaries are to take into account the
principles of the Treaty of Waitangi. One of the principles
of the Treaty is that of consultation. It was consistent with
that requirement that Contact undertook its commitment
to attempt to consult with tangata whenua over the subject
proposal. It identified, apparently correctly, the Tauhara
hapu as being tangata whenua with whom it should consult.
The testimony of Mr Carey is eloquent evidence of its
correct understanding of the purpose of consultation, and
of its persistence in attempting to carry out its duty in that
regard.
[132] The submission for deferral of decision of the appeal

was opposed by Contact which claimed that that although
some of the Wairakei abstraction consents expire in 2001,
the others do not expire until 2013. Contact acknowledged
that there is provision for review of conditions in the year
2000, but submitted that the scope of the review does not
extend to include the quantity of fluid that may by
extracted. It also claimed that the terms of the consents for
the McLachlan Power Station expire in 2011 and 2013.
Contact submitted that irrespective of the expiry of some
of the Wairakei Power Station consents, there will continue
to be substantial abstraction of geothermal fluid from the
Wairakei Field.
[130] It is not for us to comment on the lack of unified

response on behalf of the Tauhara hapu to Contacts
attempts to consult with them, and we refrain from doing
so. All we have to do is to make a finding on Contacts
actions. In that regard we find that Contact made
appropriate attempts to consult with tangata whenua over
its project, and that the reason it was not able to achieve
more was not due to any failing on its part. We also find
that in doing so Contact, for its own benefit and to ensure
that the consent authority was adequately informed, was
respecting the Treaty of Waitangi and the Treaty principle
of consultation. In our judgment the circumstances of this
case do not support any claim of failure to take into account
the principle of the Treaty of Waitangi about consultation
with tangata whenua.
[133] Contact acknowledged that it would be desirable that

the Wairakei-Tauhara geothermal fields are managed as a
single entity. The regional policy statement seeks that
outcome but acknowledges that with the present multiple
users, the system cannot be managed in a unified manner.
Contact submitted that similar issues arise with other
resources, such as multiple abstractions from, or discharges
to, a river. It urged that it is not open to a consent authority
to defer an application before it in order that it might be
considered together with future applications for renewal
of expiring consents.
[134] Mr Robinson submitted that with a competitors
application to develop the Tauhara Field waiting appeal
265
hearing, it would be unfair to take a different approach to

Contact on the basis that Contact has consents to utilise
the Wairakei Field which it will need to renew in the
relatively near future. Counsel relied on the decision of
the Court of Appeal in Fleetwing Farms v Marlborough
District Council 45 in which the Court emphasised the
obligation of a consent authority to consider and make
timely decisions on applications as they are received.
effect of refusing to decide an appeal that Contact was

entitled to bring. That would not be consistent with the
right to appeal.
[138] Contact had the choice of when to make its
applications. If its choice had the effect that its applications
might be opposed on the grounds advanced by the District
Council, that was part of the considerations relevant to the
exercise of that choice.
[139] The Act contains several indications of an intention
that resource consent applications should be processed
promptly, even expeditiously.48 We also accept that, as held
by the Court of Appeal in Fleetwing Farms,49 Contact is
entitled to have its resource consent applications decided
prior to the later application by the Tauhara Middle 15
Trust, on which an appeal to the Environment Court is
awaiting hearing.
Uncertainty about effects

[135] Contact also joined issue with the District Council
on deferral on the ground of uncertainty about the effects
of the proposal. It submitted that a no risk regime is not
compatible with the statutory purpose of sustainable
management, 46 and that it is for the Court to make a
judgment of the significance of any risk. Counsel cited
cases in which the Court had considered application of a
precautionary approach47 , and submitted that the Court
should consider the evidence to be presented on Contacts
behalf about the nature and scale of potential effects,
possible mitigation measures, and the conditions it
proposed for monitoring and review of conditions.
[140] We consider that the appropriate course is for the

matters raised by the District Council to be considered (to
the extent that they are found to be relevant and deserving
of weight) as grounds for refusing the resource consents
sought by the appeal. In that way the judgments involved,
including if appropriate the application of the precautionary
approach, can reflect the uncertainty about the effects of
exercise of the consents. However we hold that it would
not be consistent with the scheme of the Act for the Court
to defer a decision of the appeal on the grounds relied on
by the District Council.
[136] Mr Waters contended that because it is not clear that

the effects of development of the Wairakei geothermal field
had been foreseen, one can have little confidence in the
current predictions, particularly because of the paucity of
information about the geological structure underlying
Taupo town and its immediate environs. He also contended
that the possibility that pressure gradients may be generated
and the resultant pressure decline propagated out to the
resistivity boundary (with consequent surface deformation
and subsidence) cannot be ruled out. He observed that
building distortion may be caused by only a few
centimetres of subsidence, and pointed out that it would
be difficult to attribute effects of that kind to extraction of
geothermal fluid rather than the cumulative effect of small
tectonic movements which occur naturally in the Taupo
region.
ENVIRONMENTAL EFFECTS
[141] We have now to consider carefully any actual and
activity.50 The effects on the environment alleged by the
opponents of the proposal which are likely to be crucial in
the outcome of the appeal are those of subsidence of ground
surface, hot ground, heat flow, changes in surface water,
changes in seismicity, hydrothermal eruptions, and effects
on biota. Other alleged effects that also deserve
consideration are those on continuity of supply of
geothermal fluid or heated water for tourist and visitor
facilities, and other effects on the tourist and visitor
business of Taupo; and claimed effects on a proposed
bypass road.
Decision refusing deferral

[137] For this purpose we assume (without deciding) that
granting the consents sought would pre-empt desirable
management of the Wairakei-Tauhara Geothermal System.
Even so, Contact was entitled under the Resource
Management Act to make its resource consent applications,
and it was entitled to bring this appeal against the
respondents decisions of those applications. If the Court
were to defer a decision on the appeal that would have the
45
46
47
48
49
50
[142] To provide a basis for consideration of those alleged

effects, we set out our findings about the Wairakei-Tauhara
geothermal system, the Tauhara geothermal field, and the
existing effects on the environment of previous
[1997] NZRMA 385.

Aquamarine v Southland Regional Council Environment Court Decision C126/97.
McIntyre v Christchurch City Council [1996] NZRMA 289; Shirley Primary School v Telecom Mobile Communications [1999] NZRMA 66.
See the time limits in sections 95, 97, 101 and 115; and in respect of appeals, see section 272(1).
Fleetwing Farms v Marlborough District Council [1997] NZRMA 385; 3 ELRNZ 249.
Resource Management Act 1991, section 104(1)(a).
266
development of geothermal resources, particularly

abstraction of geothermal fluid for the Wairakei Power
Station.
lowering of the Waikato River level for hydro-electrical

generation, and other land-use developments. The Tauhara
geothermal field no longer contains any high chloride
springs, sinter-producing springs, geysers or vigorous
fumaroles. There is steaming ground where geothermal
springs once flowed beside the Waikato River, and at higher
elevations to the east there are springs with lower chloride
concentrations and large areas of steaming ground and
weak fumaroles.
Wairakei-Tauhara geothermal system

[143] The Wairakei-Tauhara geothermal system comprises
the Wairakei geothermal field (which lies to the west of
the Waikato River and has an area of about 25 square
kilometres), and the Tauhara geothermal field (which lies
to the east of the Waikato River and has an area of about
40 square kilometres).
[148] The Tauhara Geothermal Field has been used as a

source of heat for many years. There are several hundred
wells drawing from shallow aquifers within the field for
industrial, commercial and residential purposes, including
the Taupo Native Plant Nursery.
[144] There is low resistivity between the Wairakei and

Tauhara fields. When development of the Wairakei
Geothermal Field started, there was a reduction in the
pressure levels in the deep geothermal aquifers of the
Tauhara Geothermal Field. As a result it is generally
understood that the two fields are connected at depth, so
that artificial disturbance of the system in one field can
have effects in the other field, and they are described
together as the Wairakei-Tauhara Geothermal System.
However it is also accepted that there are several upflow
zones feeding the system.
[149] There is no electricity generating station currently

taking geothermal fluid from the Tauhara field. Proposals
in the early 1990s for a new station were not pursued. In
August 1996 the Taupo District Council and Mercury
Geotherm Limited applied for resource consent to take up
to 120,000 tonnes per day of geothermal fluid from the
northern part of the Tauhara Geothermal Field for an
electricity generation plant producing 110 megawatts of
electricity. However that application was withdrawn in
September 1997.
[145] Geothermal fluid is taken from the Wairakei

Geothermal Field for two power stations. The Wairakei
Power Station (owned and operated by Contact) which
commenced operations in 1958, has an installed capacity
of 161 megawatts, takes 140,000 tonnes per day of
geothermal fluid, and currently reinjects about 50,000
tonnes per day.51 The McLachlan Power Station (which at
the time of the appeal hearing was operated by Mercury
Geotherm Limited in receivership) has an installed capacity
of 55 megawatts, has consent to take up to 11,800 tonnes
per day, 52 and is currently taking about 4,800 tonnes per
day of fluid from the shallow steam zone.
[150] In February 1997, the Tauhara Middle 15 Trust

applied for resource consent to take up to 66,000 tonnes
per day of geothermal fluid from the Tauhara field. The
proposal has since been reduced to taking 22,000 tonnes
per day. The revised proposal is still current and an appeal
against refusal of the resource consents is to be heard
following issue of this decision.
Historic and existing effects in Taupo
[151] Various changes in the environment in the Tauhara
geothermal field in and around Taupo township are ascribed
to the abstraction of geothermal fluid from the Wairakei
geothermal field for the Wairakei Power Station, to
lowering of the river level, and changes in land-uses.
Because these changes are part of the environment which
stands to be affected by exercise of the resource consents
sought by Contact, we state our findings about the main
changes in respect of heat flow, subsidence of ground, and
horizontal ground movement.
Tauhara Geothermal Field

[146] The Tauhara Geothermal Field is located to the east
of the Waikato River and west of Mt Tauhara, north of
Lake Taupo. It lies beneath, and to the east and north-east,
of Taupo township, and has an area of about 40 square
kilometres. 53 Historically, surface expressions of the
geothermal field were geysers and chloride springs on the
banks of the Waikato River, steaming and hot ground,
several hot springs, and seeps of hot water along the
foreshore of Lake Taupo at Waipahihi.
[152] The respondents urged that these effects are

significant because they show that the possibility of adverse
effects on the environment is not just theoretical, in that
adverse effects of geothermal development have already
[147] This surface activity has been influenced by taking

of geothermal fluid for the Wairakei Power Station, the
51
52
53
Of that 50,000 tonnes per day, about 15,000 tonnes per day is reinjected on the eastern side of the Waikato River.
The consent includes a constraint on the quantity of steam that may be taken as a proportion of the total amount of fluid taken.
The area is inferred from resistivity surveys.
267
occurred in recent times in this very locality, and since

then the town has expanded in that direction.
subsurface vent, or heavy rainfall after a prolonged dry

period. He gave the opinion that this appeared to have been
the trigger for both eruptions in the pony club area.
Heat flow
[158] In 1950 the Spa Sights area consisted of about 60
thermal features. There had been a general decline in geyser
activity there over the period from 1940 to 1958, and that
is attributed to lowering of the river level for flow control.
In the early 1960s, hot chloride fluids ceased discharging
there, and a pool containing dilute chloride water at 75
degrees disappeared during the 1980s. A developing boiling
zone in the aquifer created enhanced steam upflows which
caused an expansion in steam-heated thermal areas at Spa
Park and Hells Gate. A group of mostly steam-heated
springs (AC, Kathleen and Otumuheke) which discharged
from a higher level aquifer showed changes from 1964: a
steady increase in temperature, a decline in chloride
concentration, and an increase in sulphate concentration.
In different decades each of them reached a maximum
temperature, and then levelled off, gradually declined or
varied according to flow rate changes. These changes are
ascribed to deep pressure drawdown as a result of
production at Wairakei.
[153] The main areas of surface thermal activity of the

Tauhara field are in an area of about 10 square kilometres
between the western edge of Mt Tauhara and the Taupo
urban area; and the main area of boiling, chloride springs
and geyser activity occurred at Spa Sights adjacent to the
Waikato River. Dilute chloride-bicarbonate springs occur
along the Waipahihi foreshore of Lake Taupo and in the
southern Taupo area. Predominantly sulphate-low-chloride
waters occur at higher elevations between the Spa Sights
and Waipahihi hot spring zones. Urban development now
overlaps some areas of activity.
[154] Aerial photographs taken in the 1930s indicate that
the principal areas of thermal activity were in existence in
those days, prior to the start of development of the Wairakei
geothermal field.
[155] The heat output of the Tauhara field increased from
about 100 megawatts (thermal) to about 200 megawatts
(thermal) by the early 1980s due to increased steam heating
caused by drawdown from the Wairakei development, and
the heat output is generally now in decline. The increase
in heat output raised the temperatures of the northern
springs and many domestic boreholes by up to 60 degrees
Celsius, but since 1980, temperatures have generally
stabilised or decreased in the upper aquifer. Temperatures
in some domestic boreholes in the urban area of Taupo
(near Crown Park) declined by up to 40 degrees in the
1980s, as the effects of steam heating waned. There have
been long term declines in temperatures in the Kathleen
and AC springs since 1990, and there have been variations
in the timing of the heat flow peak, so that the Otumuheke
Spring, and Bore 3880 in Puia Street near the golf course,
continued to increase in temperature until the mid 1990s.
In general the total heat flow from steam-heated ground at
Tauhara has been gradually declining since the peak
between 1970 and 1980, but there have been increases in
heat flow since 1975 at several small thermal areas between
the Broadlands Road scenic reserve and Mt Tauhara, which
are now venting steam visibly.
[159] In comparison, the temperature, flow-rate and

chemical measurements from the Waipahihi Source Spring
have shown little change from the 1960s, indicating that
the dilute chloride waters in the southern Waipahihi area
have not been significantly affected by pressure drawdown
from Wairakei. Recent decline in chloride concentrations
in that spring is directly associated with dilution by
increased rainfall recharge of the groundwater aquifer.
[160] Declines in the water level of domestic hot-water
bores have been observed, and are attributed to a
combination of delayed rainfall effects, varying lake levels,
and a general long-term decline in the water level in the
upper aquifer, probably due in part to loss to the lower
aquifer through internal flows in domestic bores or new
fractures, and cessation of upflowing geothermal water.
[161] There have been resulting changes in geothermal
biota with some sites showing increases in thermotolerant
biota (associated with increases in steam-heated features
or hot ground) and some showing declines or disappearance
of such biota (associated generally with decreases in geyser
and hot spring activity).
[156] The increase in heat flow that commenced in the

1960s caused an expansion of steaming ground. In general
this was in or near areas where there was already steaming
ground. The total steam flow is currently declining, but
there are areas still expanding. Two hydrothermal eruptions
occurred in pre-existing thermal areas the Broadlands Road
pony club area in 1974 and 1981.
Subsidence
[162] Subsidence of the ground surface can be monitored
by comparing the results of levelling surveys at known
benchmarks at successive times. Systematic relevelling
surveys have been carried out at benchmarks adjacent to
roads traversing the northern Tauhara Geothermal Field
since the early 1970s. Before that, subsidence monitoring
included only a few benchmarks in the Tauhara field, so
the subsidence pattern has to be inferred from those
surveys.
[157] Mr C J Bromley, a consultant geothermal scientist

called by Contact, deposed that steaming ground is
transitory in nature, and large changes in individual steam
features, including eruptions, can be triggered by minor
causes such as an atmospheric pressure low, blockage of a
268
[163] The results show some subsidence of the ground

surface in the Tauhara field as early as 1960. During the
1960s and 1970s, the maximum rate of subsidence occurred
to the west of the Waikato River. Since then, the rate of
subsidence there has halved, but the rate has doubled on
the eastern side of the river.
the whole community as they influenced the daily functions

of public and private use of land, housing, industry,
education, recreation and infrastructure development. In
particular the former county and borough councils had
included in their district schemes controls identifying
geothermal areas and regulating the percentage of building
coverage or impervious surfacing and excavation, and
requiring venting. That had limited use of the worst affected
land.
[164] The maximum accumulated subsidence between

1960 and 1999 is 1.1 to 1.4 metres. Additional benchmarks
were installed in 1986 to improve the resolution of the
subsidence measurement. Surveys in 1994 and 1997
showed two maxima within the subsidence area (at 67
millimetres per year and 47 millimetres per year) with the
main area of subsidence extending northwest towards the
Waikato River. The most recent survey, in March 1999,
showed similar results, with the comparative rates being
69 millimetres per year and 48 millimetres per year.
[170] Mr Mitchington also testified that during the early

stages of the geothermal pulse a series of watermain
failures had occurred in the Elizabeth Street and Crown
Road area. He also deposed to public safety being an issue,
describing fumaroles that appeared in the golf course and
Spa Hotel and AC Baths area, hydrothermal eruptions in
the vicinity of the pony club and in Spa Thermal Park,
boiling mud near the AC Baths and Carters sawmill.
[165] That extent of subsidence is not necessarily all

attributable to pressure losses due to abstraction of
geothermal fluid for the Wairakei field. Long-term tectonic
deformation may have affected the comparisons, so the
extent of subsidence that can be attributed with certainty
to Wairakei development may be some 10 to 20 millimetres
per year less than the values given. Even so, the rates of
subsidence at the northern Tauhara field during the mid
1990s typically range up to 50 to 70 millimetres per year,
with rates at two benchmarks of 116 millimetres per year
and 73 millimetres per year.
[171] The witness referred generally to the weakening of

buildings, poles and fences, the collapse of materials in
common use, and the possibility of ground collapses and
eruptions in the residential area. More particularly he stated
that the effects on buried installations such as water and
drainage pipes, building foundations and road subgrades
were more severe because it was more difficult to dissipate
the heat from them. Damage had also occurred to buildings
with foundations laid directly on the ground, with failure
of the concrete slab, the timber framework and in the
linings. Pumiceous material under buildings lost strength
and had to be removed from under foundations and
replaced. Enclosed spaces had to be vented and suspended
floors used, or forced venting applied under slab floors.
Some buildings at Tauhara Primary School had had to be
partly rebuilt more than once.
[166] The main area of subsidence in the Tauhara

geothermal field is mostly located north of the Taupo urban
area. There is a centre of subsidence near Spa Hotel,
another near the intersection of Rakaunui Road and
Centennial Drive, and another near the intersection of
Crown and Invergary Roads. The rates of subsidence
around the northern edge of the town are less than 20
millimetres per year.
[172] The witness also described damage to public utilities.

Deep side drains or sub-grade venting were used to
dissipate heat from under road carriageways, but neither
of those methods were practical in residential streets where
repeated works were needed; concrete kerbs crumbled,
utility services had to be reticulated overhead to prevent
damage to cables but the poles were prone to failure at
ground level. Asbestos cement watermains had to be
replaced using more expensive materials. Concrete
stormwater pipes and manholes also degraded, and sanitary
drains mostly use materials that are also vulnerable to
ground heating. Underground fuel installations had to be
replaced above ground to avoid evaporation and
flammability risk. Private services which failed were
seldom replaced with more expensive materials, and
repeated failures were not uncommon.
[167] Dr Allis predicted that up to 1 metre of further

subsidence will occur in the Tauhara area up to the year
2025, whether or not Contacts present proposal proceeds.
Changes in production at Wairakei would have no
immediate impact on that.
Horizontal ground movement
[168] Horizontal ground movement has also been
occurring since the early 1960s, at a rate of up to 30
millimetres per year. Like the rate of subsidence, the rate
of horizontal ground movement is expected to decline
gradually.
Impact of changes
[173] Mr Mitchington also stated that Centennial Drive

has suffered loss of camber and drainage problems in the
vicinity of the golf club; that the speed value of the road
has been reduced, and that a rebuild will be necessary to
regain safety on the curve adjacent to the golf course. The
witness may have intended to imply that these effects were
[169] There was little evidence of any significant direct

effects of the subsidence. Mr J N F Mitchington, the District
Councils Resources Engineer, gave the opinion that while
local in nature, the effects had downstream impact on
269
the result of subsidence resulting from geothermal

development, but he did not ascribe the effects to that or
any other cause.
when he was asked about repeated infra-red surveys which

were in the public domain, he was aware of only one; and
when asked about Dr Alliss evidence about the extent and
effects of horizontal ground movement, he gave his
understanding that it did not really qualify as an assessment
of that effect.
[174] Mr Mitchington also described effects of scalding

water issuing from cold taps, and steaming toilet bowls;
hot and dangerous lawns; accidents resulting in severe
burns; and animals falling into fumeroles, or being caught
in surface collapses.
[178] We have stated our understanding of the state of the

environment which stands to be affected by the project.
The geothermal features are under constant change, and
this is likely to continue even if the project does not
proceed. We do not find persuasive Mr Keoghs opinions
about restoration of a natural equilibrium; about increasing
rates of subsidence; or about lack of verification of the
past effects.
[175] Mr Mitchington stated that more recently there had

been considerable development in the area that had
previously been affected by heating of ground. That
development included subdivision for industry and
residential use, erection of public and private buildings
(including schools), development of infrastructure and
creation of significant recreational assets being sports
grounds and an indoor stadium. Roads and infrastructure
services alone in the area of influence have an estimated
replacement value of $3.5 million. As the effects of the
geothermal pulse reduced, very little of the building stock
and infrastructure development incorporates protection
against geothermal effects.
Reliability of models
[179] There was an issue between Contact and some of its
opponents about the reliability of computer models of the
geothermal system and field in assessing likely effects of
the project. Two computer models are involved: the
OSullivan model and the Allis model (which is to some
extent derived from the OSullivan model). In considering
that issue we start by summarising the evidence about them;
then we summarise the criticisms of their reliability by the
opponents; then we consider the evidence on the topic;
and then state our findings on it.
[176] The District Councils Manager of Planning and

Regulatory Services, Mr C Keogh, questioned what he
perceived as an assumption that the effects of existing
activity have no more than minor impact on the
environment, and gave the opinion that this has not been
verified. In particular he deposed that rates of subsidence
in the Centennial Drive and Spa Hotel area have been
significantly greater than the trend modelled by Dr Allis,
and parts are settling at significant and highly variable rates
over very short distances. He considered that Dr Grants
evidence to the contrary may be in error, but agreed that at
a technical level he did not have the expertise to determine
what is significant in that context.
Contacts models
[180] Contact called as a witness Dr M J OSullivan, an
Associate Professor in the Department of Engineering
Science at the University of Auckland. Dr OSullivan has
been carrying out research on geothermal fluid dynamics
and computer modelling of geothermal fields for 25 years,
has published numerous scientific papers on geothermal
modelling and has been involved in collaborative research
projects with respected American institutions.
[177] Mr Keogh was asked in cross-examination whether

the effects caused by Wairakei provide a baseline from
which to assess future effects. He answered in the negative,
referring to possible future restoration of a natural
equilibrium. However when asked what technical expertise
he relied on for that evidence, he agreed that it was not
technically supported, and that he did not have technical
expertise in scientific disciplines relevant to assessing
causes and effects of geothermal development. On his
statement that the impact of the existing effects had not
been verified, the witness was asked about whether the
applications by Electricity Corporation in the early 1990s
had analysed the effects of Wairakei production. He
answered in the negative, but when he was asked whether
he had read the assessments of environmental effects
prepared for those applications, he replied that he had not;
54
[181] A computer model of the Wairakei-Tauhara

geothermal system had been developed over a number of
years under Dr OSullivans supervision, to enable Contact
to make predictions about the likely future behaviour of the
system. As the understanding of the geothermal system has
improved and further data were accumulated, the
representation of the system has been refined. The model is
now a three-dimensional representation of the natural
processes that occur underground in the system, using 118
columns, each divided into 16 layers, resulting in a total of
1515 blocks54 . The process for development of the model
included calibration against comparisons with measured field
data of the natural state of the system, refinement, and testing
the sensitivity of the performance to the choice of parameters.
Some model blocks are removed from the top layers to give a better representation of the topography.
270
[182] Dr OSullivan deposed that the model of WairakeiTauhara is probably the most detailed and best calibrated
model so far of any model of a geothermal field. There is
good agreement between the model temperatures and field
data for production zones at Wairakei and Tauhara,
although not for the area between them near the Waikato
River. Calibration for past history of the system showed
very good agreement in respect of production enthalpy,
good agreement in most cases for pressure declines, and
general agreement on decrease of surface flows. The model
enabled inferences about the existence of a high
permeability connection between Wairakei and Tauhara at
elevations between 655 metres and 355 metres, and a
tight permeability cap isolating the deep zone from the
surface at Tauhara.
[187] Counsel for the respondents reminded us that a

geothermal resource in its natural state is dynamic, and
because it exists at depth it cannot be observed and
measured in a way that allows great precision. Further,
effects of abstraction may not be manifested for a long
time, and may occur in unpredictable ways and at some
distance from the place of abstraction. Cause and effect
can be difficult to determine, and may be more a matter of
scientific judgment than demonstrable fact. Prediction of
behaviour of a geothermal field in response to abstraction
and reinjection of geothermal fluid rests not so much on
empirical knowledge but on extrapolation from what
limited knowledge does exist. It is qualitative, not
quantitative.
[188] The respondents contended that the appellants
evidence on effects is not independent of the model but
based on the assumption that the model will correctly
predict the fields response. Because knowledge of the
shallow zone geology is limited, surface effects cannot be
predicted with the degree of assurance required in that the
town of Taupo overlies the field and would be vulnerable.
[183] Dr OSullivan acknowledged that because it consists

of quite large blocks, the model cannot be expected to
produce accurate predictions of small-scale detail: it can
simulate the performance of groups of wells, but may not
accurately predict the performance of every individual well
in the system. However he gave the opinion that the model
is suitable for carrying out future scenario studies to test
the response of the geothermal system to the proposed
development.
[189] Mr Taylor contended that the applications

dependence on the model is near total; that the model was
not developed to show surface effects, and the presence of
the town means that the model has to get it right first
time which is not in its nature. There is no scope for the
model being calibrated or fine-tuned when effects on
substantial portions of a town have to be considered, and
it would be unacceptable to take any significant degree of
risk on a trial and error basis. The crucial difference is
between what a modeller would call a good match and
what the Court regards as acceptable proof of effects.
[184] The witness reported that his modelling study

showed that the difference in pressure drawdown in the
deep production zone at Tauhara over the next 50 years
compared with no development is 2 bar; that the proposed
development would cause little change in the pressures,
temperatures and vapour saturations in the shallow zones
and little difference to the surface fluid and heat flows at
Tauhara, and that the Tauhara Field easily provides
sufficient energy to support the proposed Tauhara
development for at least 50 years.
[190] The District Council presented the general

proposition that modelling cannot predict with certainty
effects arising from extraction and re-injection of
geothermal fluids.
[185] Contact also called as a witness Dr R G Allis, Chief

Scientist at the Energy and Geoscience Institute of the
University of Utah, who had been engaged in developing
numerical modelling of subsidence at Wairakei, Tauhara
and Ohaaki geothermal fields. His model for Tauhara
required assumptions about the compressibility and
permeability of near-surface geological units. The results
had been compared with the 30-year subsidence trends at
three benchmarks representative of the maximum
subsidence zone of the field. The subsidence predictions
had used the trend in pressure predicted by the OSullivan
reservoir simulation. The result was that the proposed
development would slightly decrease the potential
subsidence, because reinjection would help to stabilise
pressures.
[191] It was the District Councils case that there is not

enough knowledge about the surface aquifers and about
the southern part of the Tauhara field to allow reliable
prediction of the effects of draw-off. The District Council
maintained that essentially the OSullivan model remains
a model of the deep reservoir. It contended that an extensive
programme of investigation and monitoring is needed
(including a detailed levelling survey across the whole
field), and the results used in development of the model
giving finer vertical detail in the upper layers, finer
horizontal detail (smaller blocks), and calibration against
gravity changes.
The cases for the opponents
[192] The District Council was also critical of the

modelling work carried out by Dr Allis. Mr Vane argued
that it uses a wait-and-see approach, is based on insufficient
benchmarks (especially in the Taupo township) monitored
over a long period, and lack of detail and localised
knowledge of the geology of the upper aquifers. He argued
[186] It was the case for the respondents that the model is
not sufficiently refined to predict surface effects. Rather it
attempts to describe conditions in the deep aquifer, the
pressure from which surface effects are driven.
271
that the Allis subsidence modelling and interpretation is a

generalised guess based on inferred generalised and
averaged information about the shallow aquifers, and
cannot provide a basis for reliable prediction of localised
subsidence arising from local variations in the properties
of the underlying mudstones.
[198] Of the OSullivan mathematical model, Dr Watson

observed that the entire volume within a block is
represented by a single point at its centre, with no variation
or properties or parameters throughout its volume, so the
degree of detail is controlled by the number and size of
blocks. He also observed that with so many parameters to
vary, it may not be possible to arrive at a unique set of
values for each, as several different combinations could
produce the same match with the field data, and there would
be no means of deciding which was correct, especially
because at Tauhara there is little data to tune the model.
The witness deposed that for a development near an urban
area, small scale detail is required to provide reliable
estimates of the magnitude of local environmental effects.
In summary, the witness concluded that the expectations
of the reservoir model are too great and that some effects
that might be important have only been lightly considered.
However he acknowledged that the general picture of the
reservoir and its response to the proposed development
presented in the scientific evidence is probably correct.
[193] Mr Waters deposed that modelling has its limitations,

claiming that it is simply a form of simulation and an aid
to guessing, and relying on an opinion expressed by a Dr
AJ Pearce that computer modelling is this shadow-boxing
surrogate for (real) science.55
Evidence about the models
[194] In cross-examination by Mr Taylor, Dr Allis testified
that the pressure trends needed to fit the subsidence rate
changes had been different in detail from the general trend
predicted by the OSullivan model. The witness stated that
he had used the OSullivan model pressure trend as a guide
to the pressure changes in the vicinity of the compaction
zone, and had modified it to fit the observed data. He
confirmed that future predictions also use that as a guide.
[199] In cross-examination Dr Watson accepted that Dr

OSullivan had done the best job he could with the data
available, that he had no criticism of what he had done,
but the issue was at the very difficult end of computer
modelling, the prediction of surface effects.
[195] In cross-examination by Mr Vane, Dr Allis explained

that the three benchmarks had been taken as representative
of the whole of the subsidence area (an area of about 1
kilometre by 2 kilometres), and that although there were
two local areas where the present subsidence rates are
higher than those at the benchmarks, the trends would be
similar. He also explained that the uncertainties in the
subsidence predictions should be able to be reduced if
better information of pressure trends in the area is obtained.
[200] Of the Allis model, Dr Watson observed that the

differences of subsidence with and without the
development are probably well within the margins of
uncertainty on the estimate.
[201] Dr M A Grant, a geothermal reservoir consultant
called by the District Council, testified that it is normal
practice to build computer models of geothermal fields.
He gave the opinion that the existing models of Tauhara
are adequate in respect of the reservoir, but weak in relation
to surface effects; and that greater precision requires more
detailed representation of the surface structures.
[196] Dr A Watson, Director of the Geothermal Institute

of the University of Auckland, who was called by the
Regional Council, drew attention to sources of uncertainty
in the conceptual model from which the mathematical
models had been developed. First, he observed that the
information available to deduce the lowest layers of the
reservoir comes from 5 deep wells, and that the interface
between the geological layers is not a flat sheet but a
complicated curved surface that is not capable of accurate
definition by only 5 wells
[202] Dr Grant deposed that a computer model provides

greater confidence and can eliminate a range of
possibilities, even if it does not identify a correct picture.
[203] Dr Grant gave the opinion that the block sizes in the
upper layers are too large and coarse and require finer
horizontal and vertical detail to predict localised surface
effects; that is, it requires enhancement to adequately
represent shallow aquifers. A micro-gravity survey across
the entire Tauhara area would provide a good way to track
migration of underground fluids.
[197] Secondly he observed that the layers are interwoven

and fragmented, and do not have uniform permeability or
porosity. Cuttings from drilling do not provide as much
information about them as do cores. Thirdly he deposed
that there is uncertainty about the extent and permeability
of breccias encountered between the upper and middle
aquifers. The witness remarked that these uncertainties
prevent complete understanding of the flow paths in the
reservoir.
55
[204] In particular Dr Grant described Dr Alliss model

as more of an explanation than a prediction, that it
The context of the quotation from Dr Pearce was not given.
272
overestimates shallow pressure changes, and

underestimates the formation compressibility, so that future
predictions will underestimate future subsidence. In crossexamination by Mr Robinson he gave the opinion that it is
possible that the error is significantly larger than Dr Allis
had estimated. He also deposed that the existing level of
monitoring is insufficient to document unequivocally the
existing changes, let alone discriminate those due to a new
development at Tauhara.
when fluid is produced or reinjected from geothermal wells,

which are in their form very similar.
[209] Dr Grant told the Court that he proposed additional
monitoring and modelling with the intent of improving
the level of confidence. On a scale of 10 between zero and
ultimate confidence, he evaluated Contact case at between
6 and 7, and his proposal between 8 and 9.
[210] Mr Brocklesby acknowledged that modelling is
widely accepted as a valid and appropriate tool for the
purpose of determining the likely effects of geothermal
developments, but questioned the degree of reliance that
should in this case be placed on conclusions about effects
drawn from the results of modelling. He deposed that
modelling alone does not deliver an adequate degree of
certainty of effects where the consequences of getting it
wrong are as significant as they are in this case, citing
underestimates of pressure decline, of surface heat flow at
Karapiti, and poor match in respect of temperature and
depth in some wells. The witness gave the opinion that the
model is capable of significant errors, is at best a coarse
predictive tool, and that Contacts case about effects was
based on modelling results and can only be as reliable as
the modelling on which they are based.
[205] Dr Grant had reported that although Dr Alliss model

implied that subsidence should now be levelling off, it is
accelerating in some areas, showing that the subsidence is
not well understood and existing models do not provide
reliable predictions. However having now heard the
evidence, Dr Grant modified his evidence, accepting that
the rate of subsidence appeared to have been the same as
in the past and the higher values had been measured in
places not previously measured.
[206] Dr Grant was asked by Mr Vane to comment on Dr
OSullivans opinion that the effects of the project would
be so minor that extra modelling effort is not required. Dr
Grants answer described the additional modelling work
which he recommended, which he described as a
significant amount of work. However his response did
not address directly Dr OSullivans opinion, the subject
of Mr Vanes question, that the effects would be so minor
that the extra modelling effort was not required. In response
to a question by the Court, Dr Grant deposed that in respect
of the modified proposal to take 20,000 tonnes per day,
the extra monitoring effort would be practically the same
as for the original proposal, so for the smaller proposal the
overhead of that monitoring would become relatively
larger.
Findings about the models

[211] Mr Vane quoted this passage from a Planning
Tribunal decision about mathematical models of the
Wairakei geothermal field
We consider that their true value has been as tools
used by persons qualified to interpret them to
inform their own opinions about the probable
effects of the proposed taking.56
[207] In response to a question by Mr Kember, Dr Grant

gave the opinion that further monitoring and finer definition
of the model would enable reliable prediction of what might
happen around Waipahihi that would have some value. He
was not sure that drilling a deep well there would be
sufficiently desirable to be worth the cost. In examination
by Mr Robinson, Dr Grant stated that he agreed that the
representation in the OSullivan model of the southern part
of the Tauhara field was consistent with his view as to the
structure of the southern part of the field. He agreed that
the principal reason one would wish to drill a deep well in
that part of the field would be to establish whether or not a
development would be possible.
[212] We adopt that statement. It is the context in which

we address the respondents claim that Contacts evidence
was not independent of the models. Contact did not seek
to rely on the outputs of the models as such. Rather, Mr
Robinson submitted that the significance of the modelling
evidence was not that it is totally accurate in its own right,
but that it is consistent with the conclusions Dr Allis and
Mr Bromley reached on their analyses of the data available.
Contact was entitled to present that evidence and have its
case judged on that basis.
[213] The features which contribute to the value of a model
include the quality and detail of the field data that are used
to develop and calibrate it, and the degree of refinement
of the model itself (for instance in the size of the blocks).
There was no contest that if more wells had been drilled
and relevant data from them used in developing the
OSullivan model, and if more benchmarks had been used
[208] Asked in cross-examination what experience he had

himself in subsidence modelling, Dr Grant replied: None,
however the mathematical models involved are very simple
and easily understandable. He deposed that he had
produced many models of pressure change in an aquifer
56
Geotherm Energy v Waikato Regional Council Planning Tribunal Decision A58/91, page 32.
273
in more successive levelling surveys and the measurements

used in developing the Allis model, those models would
have been more valuable than they are. Likewise if the
OSullivan model had smaller blocks near the surface, and
had used more field data about groundwater, it would have
been more valuable too.
will have subsided by 2 metres (plus or minus 1 metre);

and that the total subsidence near Benchmarks BM54 and
AA80 (by a bend in Centennial Drive, and at the
intersection of Centennial Drive and Rakaunui Road
respectively) will be 3 metres (plus or minus 1 metre) by
then. Dr Allis added that if there is no development of the
Tauhara field, the predicted subsidence in those areas will
be 5 to 10 centimetres greater by 2030 compared with that
predicted with Contacts development. He acknowledged
that the difference is small compared to the uncertainties,
and stated that the uncertainty should be able to be reduced
if better information becomes available about pore pressure
trends in the area.
[214] An expert witness giving opinion evidence on a

matter such as the effects on the environment of geothermal
development has to apply professional judgment to all the
facts available. The witnesss understanding and
interpretation of a model can assist in the making of the
judgment, and the forming of the opinion. The witness has
to exercise responsibility in deciding the extent to which
the opinion can be assisted by model.
[219] In cross-examination Dr Allis agreed that his model

had used the OSullivan model as a guide to pressure
changes, and had altered it to fit observed data; that the
1997 benchmarks used for levelling surveys to measure
subsidence had been mainly north of Tauhara Road
(previous levelling having shown that the Tauhara
subsidence zone was in that area); and that there were no
data about the pressure in the deep reservoir under Taupo
town itself. He also stated that it is still possible that
pressure changes could occur in the south of the Tauhara
field, but the weight of the evidence strongly pointed to
that not being the case. He confirmed his opinion that the
subsidence effects due to the proposed development would
be very small.
[215] This is not a case where there were better models

available for the witnesses to use. Nor is there room for
finding that the models incorporated flaws so that they
should not have been used. The witnesses would not have
been justified in ignoring the models on the basis that if
more field data had been available, better models might
have been produced. Neither Dr Watson nor Dr Grant
claimed that Contacts witnesses should have ignored the
models. The value of bringing to the Courts attention the
limitations on the models was to emphasise the uncertainty
inherent in the predictions of effects, rather than to criticise
the expert witnesses for using them to assist in the
formation of their opinions about the effects of the project.
[220] Dr OSullivan gave the opinion, based on his

modelling, that the predicted subsidence trends would not
be significantly affected by Contacts proposed
development. He also predicted that without the Contact
development, there would be slightly greater subsidence
(0.05 to 0.1 metre).
[216] We accept that to the extent that the expert opinions

are based on the models, they should not be given complete
confidence. In the end the Court has to make its own
finding. It is not entitled to avoid that responsibility on the
basis that there is uncertainty, but it can take that
uncertainty into account.
[221] Professor Watson concluded that a development

including an extraction of 20,000-25,000 tonnes per day
of geothermal fluid should produce a significant and
measurable but acceptably low impact. He had not
distinguished effects caused by Tauhara development
alone, distinct from the effects of the Wairakei operation;
nor had he drawn a distinction between the effects of
Wairakei operations to date and those effects which might
be drawn in the future. He explained that it would be very
difficult to separate out the effects because subsidence due
to Wairakei is ongoing and has yet to be experienced.
Subsidence
[217] Dr Allis has been a geothermal scientist for 22 years,
has had extensive experience of the Wairakei-Tauhara
geothermal system, and has been studying and publishing
material on geothermal subsidence since the early 1980s.
He gave evidence about the development of his model of
the subsidence history of the Tauhara field, following a
relevelling survey in 1997. Predictions of future subsidence
had been made assuming that the Wairakei development
continues as at present, and comparing the subsidence if
Contacts Tauhara project proceeds and if it does not. In
his evidence Dr Allis did not avoid the combined
uncertainties, nor did he merely report on the output of the
model, but gave his best estimate of the magnitude of
uncertainty.
[222] Dr Grant deposed that the maximum subsidence at

Tauhara is about 60 millimetres per year, and that injection
of waste water into a steam zone would reduce pressure
and exacerbate any subsidence. He deposed that the
development of localised subsidence that had not been
predicted beforehand showed the presence of a previously
unrecognised mechanism and indicates a need for caution.
However he did not himself offer any opinion about the
extent of ground subsidence attributable to Contacts
proposed development.
[218] Dr Allis had used measurements at benchmarks that

he considered representative of the subsidence area of the
Tauhara field and that had a long history of measurements.
It was his evidence that by 2030 the area around Benchmark
AA1/14 (by Huka Falls Road, west of the Waikato River)
274
So we should read the references to acceleration

in your evidence with that qualification? Yes.57
[223] Dr Grant agreed that by and large future subsidence

should be expected by and large where it currently occurs,
although it need not follow the current pattern. He accepted
Dr Alliss evidence that subsidence rates along Centennial
Drive had been nearly constant through the 1990s.
[227] We are not persuaded that Dr Grants answers in

that cross-examination showed that Dr Grant had accepted
that his evidence had been based on a misreading of the
subsidence information. Rather, it shows that the witness
was not willing to testify that there is no evidence of
subsidence accelerating in recent times until he had had
the opportunity to inspect one by one the plots of
measurements referred to by Dr Allis.
[224] Contact submitted that Dr Grant had not drawn a

distinction between past Wairakei effects and effects of
proposed development; and that the Court must make a
judgment, based on its analysis of legal framework, as to
the extent to which it can rely on Dr Grants conclusions.
[228] In his evidence Mr Keogh suggested that Dr Grant

had been wrong in his analysis of the subsidence data. That
was based on Mr Keoghs own analysis of a series of
subsidence contour maps. Mr Keogh professed no relevant
training or experience which would qualify him to give
opinion evidence as an expert on technical matters to do
with measurement of ground subsidence. To the extent that
his opinions differed from Dr Grants on this topic, the
latter is qualified, the former is not. We accept Mr
Robinsons submission that Mr Keogh tended to confuse
the role of an expert witness with that of an advocate. Dr
Grants opinions were capable of assisting the Court, and
to the extent that they address subjects outside the area of
his professed expertise, Mr Keoghs opinions were not.
[225] Mr Robinson also submitted that Dr Grant had

accepted that the report he produced had been based on a
misreading of the subsidence information which the
District Council had provided to him, and that the evidence
he had given on subsidence had to be qualified accordingly.
In his evidence-in-chief Dr Grant had said:
the development of localised subsidence, which
is related to drainage commencing in the late
1980s, and was not predicted beforehand, shows
the presence of a previously unrecognised
mechanism and indicates a need for caution.
[226] In cross-examination by Mr Robinson, Dr Grant

was asked about that passage
[229] From his analysis of the evidence Mr Brockelsby

observed that the proposed development would have about
a ten percent greater effect on pressure reductions than
would occur solely as a result of the Wairakei drawdown,
and that the restraint on subsidence resulting from
reinjection would only be in the area of the reinjection
site.
was that the subsidence that commenced in

the late 80s, drainage or both? I think the accurate
statement would be it commenced earlier and was
recognised in the 1980s.
Dr Allis gave evidence that the subsidence at certain

benchmarks and the instance being BM54 at the golfcourse
corner being recorded since the 1960s, so your view is
that both drainage and subsidence had commenced in the
60s if not earlier but not been recognised before the 1980s?
Yes.
Dr Allis gave evidence that subsidence rates at the

benchmarks along Centennial Drive have been nearly
constant through the 90s, do you accept that? I havent
inspected the data of his plots to verify that, but I accept
his statement.
[230] Mr A J Waters expressed concern about risk of

subsidence, expressing little confidence in Contacts
predictions in the absence of proven correlation, and
referring to paucity of detailed data about the geological
structure (and the location of the resistivity zone boundary)
underlying Taupo town and its immediate environs. He
considered that there is a possibility that a pressure decline
generated by extraction of geothermal fluid may result in
surface deformation and subsidence out to the resistivity
boundary; and he described effects on buildings likely to
result from only a few centimetres of subsidence. He agreed
that the cumulative effect of small tectonic movements over
time could result in similar minor damage to buildings,
and that it would be difficult to attribute responsibility.
So on that basis there would appear to be no evidence of

accelerated subsidence in the area in recent times? I
wouldnt comment. I would want to inspect the plots one
by one before answering that.
[231] Mr Waters relied on his experience as a roading

engineer that considerable variation can be expected in
below-surface materials and that despite testing and
sampling, unforeseen local conditions will almost
Yesterday you stated that the most recent subsidence

contour map didnt demonstrate acceleration of the
subsidence, is that a correct statement of your position?
Yes.
57
Notes of evidence pp 133, 134.
275
invariably be encountered. He concluded that there will

always be uncertainties and inaccuracies in predicting how
underground materials are likely to behave.
or cumulative on effects of drawdown resulting from

abstraction for the Wairakei Power Station. We do not find
it persuasive to take a situation of inherent uncertainty and
then construct a hypothesis for which there is no evidence
of a plausible mechanism on the basis that it is of low
probability but high potential impact.
[232] We accept that on the present state of knowledge

no-one can confidently predict the effects of Contacts
proposal on ground subsidence. Therefore our finding has
to be made on the basis of the opinions of the expert
witnesses, making allowance for the uncertainties. We have
found Dr Alliss opinions persuasive, given the extent of
his own professional experience studying the Tauhara field
and subsidence effects, and the allowances he made for
uncertainties. We also found the opinions of Drs
OSullivan, Watson and Grant helpful. On the totality of
the evidence on the topic, we find that Contacts project
would not be likely itself to cause any significant adverse
effect by way of ground subsidence, either considered alone
or cumulative on the subsidence attributed to the drawdown
for Wairakei.
[237] It is our judgment that this would not be a realistic

attitude for the Court to take on the evidence before us.
Rather it is our finding that, even though predictions cannot
be reliable in detail, the heat flow and hot ground effects
on the environment of allowing the activity would not be
more than minor.
Surface water changes
[238] Mr Bromley gave the opinion that the additional
effects of the proposed development on the near-surface
aquifers and springs would be minor. Dr OSullivan
deposed that the proposed development would cause little
difference to the surface fluid flows at Tauhara.
Hot ground and heat flow

[233] Dr Allis gave his reasons for the opinion that he gave
that the proposed development is unlikely to cause
significant near-surface changes, with any changes in
thermal activity being so small that they may not be
measurable with the routine monitoring presently being
carried out. Dr OSullivan explained why he had come to
the opinion that the surface heat flow would be similar
with or without the project. Dr Watson agreed that the
increase in heat flow would be very small compared with
that of the 1970s. Dr Grant deposed that without mitigation,
some increase in steam flow might be expected, and this
would occur in the same areas and patterns as before.
[239] Dr Grant gave the opinion that the shallow aquifers,

and the bores and springs producing fluid from them, would
be affected by an increased steam upflow and increased
downflow from the surface, and by the injected water.
[240] On the evidence we find that the effect of Contacts
project on the environment in terms of surface water
changes would be minor.
Seismicity
[241] The Taupo fault belt is noted for its naturally high
level of seismicity. Dr Allis deposed that there is no
correlation between the seismic activity and production or
injection activities, although there is a small risk of causing
induced seismicity especially around reinjection wells. In
summary he gave the opinion that the proposed
development is unlikely to cause a change in seismicity.
[234] It was the respondents case that because an increase

in surface heat flow is not projected to start until 2020, it
is very difficult to predict the area that is likely to be
affected, the size, scale and intensity of the effect, and the
extent of development of the town in the intervening 20
years; and that expansion of steaming ground would be an
effect which, even if of low probability, would have a high
potential impact.
[242] Dr Watson testified that he knew of no reason to

expect that the Tauhara reservoir would be particularly
prone to seismic activity as a result of the proposed
development. Dr Grant deposed that earthquakes do not
appear to happen under what would be normal operating
conditions for a project like Tauhara.
[235] On the point about development of the town in the

next 20 years, we find it difficult to understand how the
development of the town in the Tauhara geothermal area
would be responsible regardless of the outcome of this
appeal. The significant environmental effects of past
abstraction for the Wairakei Power Station, and the natural
features of the area, should raise questions about its
suitability for urban development.
[243] In short there was no evidence that would support a

finding of seismic effects of allowing the activity.
Hydrothermal eruptions
[236] There is uncertainty about the increase of surface

heat flow and hot ground that would result from Contacts
proposal. Even so, there is no basis for a finding that there
is even a low probability that the project would cause high
impact in respect of heat flow or hot ground, whether alone
[244] It was the case for the respondents that although

hydrothermal eruptions are the least likely effect, if they
occurred they would be devastating. The respondents urged
that the possibility of eruptions should not be disregarded
altogether, but given some weight in the overall judgment.
276
[245] Mr Bromley deposed that there is negligible risk of

hydrothermal eruptions created by the proposed
development because the overall upflow of steam to the
surface environment is still expected to decline. In the
unlikely event of one occurring, it would grow from a small
event at the surface, only last a few days, and be selfquenching.
in this case the risk is real, in that the feared effects have
occurred and in the case of subsidence and hot ground
migration, continue to occur; and there is a probability of
the feared effects occurring with high potential impact.
[252] Counsel for the respondents also referred to
community concern and economic impacts on property as
effects to be considered.
[246] Dr Grant gave the opinion that some increase in

steam flow might be expected, and that means an increased
chance of eruptions.
[253] Counsel for Contact cited decisions in which the

Planning Tribunal and the Environment Court have held
that community perceptions of risk are not themselves
effects on the environment, and can only be given weight
if based on risk established on scientific evidence. 59 Mr
Robinson submitted that community perceptions and
concerns are therefore not a separate ground for deferring
consideration of the appeal on the merits. He also
contended that the perceptions arose from circulation of
misleading statements about the proposal and its effects.
Mr Robinson observed that the appeal should not be
conducted as a political process where the extent to which
parties have mobilised public opinion might influence the
outcome.
[247] There was no evidence to support a finding that

hydrothermal eruptions, if they occurred, would be
devastating, or indeed significant rather than insignificant
and temporary. In our judgment the evidence does not
justify a finding in this respect that should influence the
decision of the appeal.
Biota
[248] Mr B R Burns, a plant ecologist, deposed that he
would expect few changes in thermotolerant vegetation
and biota directly attributable to the proposed development.
He described a current 3-year project by Contact
establishing new, self-sustaining populations of two
geothermal fern species at sites where they have been lost
or substantially reduced, including within the Tauhara field.
He recorded that the regional policy statement recognises
such offset works as a way of mitigating environmental
effects in developed geothermal systems.
[254] We certainly agree with that remark. Parliament has

provided for resource consent appeals to be decided by
the Environment Court, which is a judicial body, a court
of record. It would not be consistent with those provisions
for the outcome of appeals to be influenced by the number
of people who express opposition to a proposal, or who
perceive themselves to be at risk or concerned about the
possible adverse effects. Because the Court has the same
duty in respect of a decision appealed against as the primary
decision-maker,60 it acts on its findings based on evidence
of probative value in having regard to the matters directed
by section 104 and making the discretionary judgment to
grant or refuse consent conferred by section 105 for best
achieving the purpose of the Act defined in section 5. There
is ample scope in that process for the Courts decision to
be influenced by adverse effects on the environment which
are shown on evidence to be well founded. However there
is no place in that process for the Court to be influenced
by mere perceptions of risk which are not shown to be
well founded.
[249] We find that there would be no significant effect on

the environment of allowing the activity in this respect.
Community perceptions
[250] Although counsel for the District Council did not
expressly make it part of his submissions, he called as a
witness a Mr P A Henry, who gave his opinion in evidence
that the geothermal power station and other development
of the Tauhara Geothermal Field would have adverse
effects on the tourism appeal of the Taupo area. In addition,
Mr Keogh suggested that public perceptions are relevant
even if not well founded, but he cited no authority for that
proposition.
[255] Claims of effects on tourism appeal, such as referred

to by Mr Henry, like claims of depreciation of property
values, are derivative. If they are well founded, that is
because of adverse effects on the environment, and it is
the adverse effects themselves, rather than the supposed
secondary results of them, that should be considered in
[251] Mr Vane cited a passage in the Environment Court

decision in Shirley Primary School v Telecom Mobile
Communications 58 that fear can only be given weight if it
is reasonably based on real risk. Counsel contended that
58
59
60
[1999] NZRMA 66, 125-6.

Ngataringa Bay 2000 v Attorney-General Planning Tribunal Decision A16/94; Telecom New Zealand v Christchurch City Council W165/96;
Shirley Primary School v Telecom Mobile Communications [1999] NZRMA 66.
277
the ultimate judgment. If they are not proved to be well

founded, we hold that they should not influence the Courts
decision. 61
[260] Although we understand the concern of those whose

businesses use geothermal fluid, the expert evidence does
not support any finding that Contacts project would be
likely to affect the continuity of supply of fluid or its
quality. That is much more likely to be affected by natural
processes.
Continuity of supply for tourist/visitor facilities

[256] Taupo Hot Springs Limited and Akinra Holdings
Limited submitted that the geothermal systems on which
their businesses rely are too fragile, the effects of extraction
too unpredictable, and the consequences of something
going wrong too devastating, for the proposed
development to be warranted, in that draw-off from Tauhara
might result in a material decline in the Waipahihi Springs
and the supply of geothermal water essential to their
activities. Their counsel, Mr Kember, submitted that the
southern part of the Tauhara Field is relatively poorly
explored and poorly understood. He listed that there are
no deep wells, that Dr Allis had suggested that there is a
separate upflow zone, but Dr Grant had discounted that
thesis; that Professor OSullivan had agreed that the
predictive value of his model is affected by the fact that
the blocks in the southern part of the field are much larger
than those in the northern part; and that Dr Grant had
expressed the opinion that the Waipahihi area is only just
starting to experience the effects of drawdown at Wairakei,
and that there could be significant changes yet to occur.
Mr Kember submitted that mitigation and monitoring are
not an acceptable antidote to the risks, and the potential
impact is such that the risk is not worth taking. Counsel
also raised the effects on the particular chemistry of the
hot water, observing that in the past around Taupo, it is the
chloride content of spring water that is the first to be lost.
Other effects on tourist/visitor business

[261] Mr A Montgomerie, Economic Development
Manager for Destination Lake Taupo, gave the opinion in
evidence that disruptions to natural resources have a
disproportionate effect on tourism confidence, whether or
not the effect is physically significant or not; that because
tourism confidence relies on positive image, it is
disproportionately affected by negative events, real or
imagined. He deposed that physical disturbance to the
recreational and sporting facilities in the Tauhara
geothermal area would be
detrimental to their image perception and
consumer confidence in the product, which in
terms of attracting visitors will be much more
devastating than a purely physical occurrence.62
[262] As well as the Lanecove Hotel, Mr P A Henry has

other business interests in Taupo, mainly related to the
tourism industry. He expressed concern about potential
adverse effects on tourism of geothermal power generation
so close to Taupo township, as being inconsistent with
protection and enhancement of the environmental qualities
of the area, especially the appearance of wells, pipelines,
and a power station, possible fog, subsidence and noise.
He also deposed that a hot-water beach on the lake edge
near his hotel is popular with visitors, and that loss of that
attraction would impact on the business of the hotel and
Taupo in general.
[257] Mr Bromley testified that the decline in chloride

concentration at the Waipahihi Source Spring is a dilution
effect directly linked to increased rainfall recharge of the
groundwater aquifer.
[263] Section 104(1)(a) calls on consent authorities to have

regard to actual and potential effects on the environment
of allowing the activity. We have quoted the meaning to
be given to the term environment. If the effects of
allowing the activity included physical disturbance to the
recreational and sporting facilities referred to by Mr
Montgomerie, or the loss of the hot-water beach referred
to by Mr Henry, we should have regard to them. However
the evidence does not justify finding that effects on those
facilities would be likely to be caused by allowing the
activity. So the derivative effects on tourism confidence
and so on (which would not be effects on the environment
as defined) would not be triggered.
[258] Mr Henry, owner of the Lanecove Hotel which uses

geothermal fluid from a bore for heating spa pools, hot
water supply, and for space heating, expressed similar
concerns.
[259] There is no evidence of minimal change in the
southern Tauhara area attributable to taking geothermal
fluid for the Wairakei Power Station. Dr Allis and Mr
Bromley were confident that the proposed development
would have negligible further effect, and Professor
OSullivan modelled a similar pattern. Dr Grant was less
sure, but accepted that the OSullivan model predicting a
slow decline over a prolonged period was consistent with
his view of the subsurface structure of the southern part of
the field.
61
[264] The visual effects referred to by Mr Henry (the

appearance of the geothermal facilities, fog, subsidence
Northern Wairoa Dairy Co v Dargaville Borough Council, Planning Tribunal Decision A181/82; Affco v Hamilton City Council Planning Tribunal
Decision A3/84; Purification Technologies v Taupo District Council [1995] NZRMA 197.
278
and noise) would be effects on the environment. However

there was no plausible evidence to support findings that
the geothermal facilities would be visible to the public,
that their appearance would be unattractive, or that the
project would cause fog, subsidence or noise. The expert
evidence of Mr M J Hunt, an environmental noise
consultant, refuted any suggestion of noise disturbance or
nuisance.
[270] The District Councils position shows the value of

the designation process provided by Parliament in
successive Acts, and the consequence where a requiring
authority planning a public work fails to use that process.
In our opinion any difficulty that the District Council might
face as a result of Contact erecting a generating station on
land where it is a permitted activity is due to the way in
which the District Council has managed its affairs, and
does not provide a valid ground for refusing resource
consents associated with the power station project.
[265] In short, we conclude that these concerns are

overstated and, on the evidence before us, unwarranted.
Contacts easements
Proposed bypass road
[271] Contact has property rights (by an easement and
profit--prendre) over certain land overlaying the Tauhara
geothermal field assuring access for extraction and
reinjection of geothermal fluids for electricity generation,
and for construction of fixtures, pipes, equipment and lines
associated with it. The District Council submitted that the
easement has the effect of preventing anything other than
farming on the land by any person other than Contact
without Contacts consent. It contended that this causes
adverse effects constraining development of the urban area,
especially south of the Napier-Taupo Road (State highway
5). Mr Keogh testified that he considered the effects of the
easement as a prohibitively restrictive covenant on most
of the land, east, north-east and south-east of the existing
Taupo township.
[266] The District Council is working with Transit New

Zealand towards joint development of a bypass road around
the Taupo urban area. Mr Mitchington stated that the route
will be east of the town across land affected by the
application, and that the District Council and Contact are
working together over the route which crosses the power
station site. He stated that a significant amount of land has
been acquired, that a designation is shortly to be published,
and that Transit and the District Council have expended
money on design and investigation.
[267] Mr Mitchington deposed that the route for the bypass
road has already been moved eastward to avoid steaming
ground and hydrothermal eruptions, so that a road on the
current route would be longer than that originally planned.
He gave the opinion that any further movement to the east
would further lengthen the route and alter its economic
balance, possibly making it unacceptable as an alternative
route for State highway traffic. He also claimed that any
recurrence of surface activities could place the road in
jeopardy, denying the opportunity to remove highway
traffic from the Taupo lakefront and town centre.
[272] The District Council argued that granting the

consents sought may have the effect of encouraging
Contact to perpetuate that constraint on development; but
that declining consent would inevitably result in release
of surface rights over the land south of the Napier-Taupo
Road, making it available for urban expansion. It was
contended that this would have a very substantial effect
on the future development of Taupo and on its urban
economy. In addition, the District Council argued that the
areas of land subject to the easement lying north-east of
Taupo might also become available for development if used
for reinjection of Wairakei waste fluids, but granting the
consents would be contrary to that, or at the least cause
that outcome not to be available.
[268] In cross-examination Mr Mitchington confirmed that

the proposed bypass road had been first mooted in 1962,
and that no formal process to designate the routehad been
pursued since then, although the route had been shown on
the district planning maps from the late 1970s. The witness
also confirmed that Contact had shifted its proposed
generation station site to accommodate the route, and that
an alternative route had then been proposed which would
bring the road nearer the generation site, a route which
would also go through an area of existing hot ground.
[273] In reply, Contact submitted that its property rights,

and its contract with the owners of the land subject to the
easements, are not resource management issues and are
not relevant to the matters at issue in these proceedings.
[269] Contact contended that the District Council had

made a deliberate decision not to designate the route of a
proposed bypass road, and after consulting with the Council
Contact had shifted the site of its proposed power station
to accommodate the bypass. The District Council had then
devised an alternative route through the amended power
station site but had not advised Contact of that, even though
the power station is a permitted activity in terms of the
district plan.
[274] We accept that submission. In addition we observe

that the appropriate way for the District Council to pursue
its wishes about the future development of Taupo would
be to propose provisions in a district plan and allow the
proposal to be tested by the process Parliament has
provided. That would be an appropriate way for the
suitability of the land for urban uses to be decided. In the
meantime, the District Council can have no complaint
279
about those with interests in the land making a use of it

that is consistent with what is permitted by law.
already referred to the evidence by Mr Burns about

establishing new populations of geothermal ferns.
[275] In the result, we hold that our decision of this appeal

should not be influenced by the District Councils
submission about Contacts property rights in respect of
the land overlying the Tauhara geothermal field hindering
urban expansion over that land.
[280] It was the case for the respondents that the mitigation
measures proposed leave considerable room for doubt
whether they would prove effective in practice. Mr
Brocklesby gave the opinion that the conditions suggested
gave the consent holder too much flexibility, but he
accepted that the drafting could be improved to meet his
point. The witness also agreed that the objective ought to
be to avoid remedy or mitigate actual effects, rather than
loss of property values unconnected with actual or potential
effects.
Discharge of contaminants
[276] Section 104(3) of the Resource Management Act
1991 applies where an application is for a permit to
discharge contaminants. It requires a consent authority to
have regard to the nature of the discharge, the sensitivity
of the receiving environment, the reasons for the choice,
and any possible alternative methods of discharge,
including into another receiving environment. It is not to
belittle the general importance of that provision to record
that in the circumstances of this case, the opponents did
not seek to make anything of the application of this
provision. Accordingly there is nothing to be gained by
prolonging an already lengthy decision by punctiliously
going through details. It is sufficient that we record our
acceptance of the expert opinion expressed by Mr Chrisp,
for the reasons that he gave, that discharge to waterways,
rather than to the ground, was inappropriate due to
environmental effects, and alternatives to discharging
hydrogen sulphide by venting the non-condensable gases
above the cooling tower exhaust were not considered due
to the low levels of emissions predicted.
[281] Dr Watson gave the opinion that there can be no

certainty that the mitigation measures will work.
Quenching steaming ground requires reinjection of water,
and there could be practical problems with that. Factors
on which success or failure of venting steam to air may
depend cannot be predicted or controlled. Dr Watson
accepted that measurements of subsidence following
reinjection would be a test of reinjection as a mitigation
method.
[282] It was the case for the District Council that the grant
of the consents sought would effectively preclude mass
reinjection of geothermal fluid from Wairakei into the
Tauhara geothermal field as a means to mitigate subsidence
effects arising from abstraction for the Wairakei Power
Station.
[283] Dr Grant deposed that the rationale for producing
or injecting fluids is theoretically sound but had not been
tried, and suggested a field trial; and remarked that the
mitigation programs may have adverse effects on existing
bore users, including the AC Baths. He also observed that
the mitigation methods would not control subsidence like
that occurring at Centennial Drive, caused by a fall in steam
zone pressure.
Mitigation
[277] Witnesses called on behalf of Contact presented
evidence on monitoring and mitigation measures that it
proposed, and addressing the desire by a number of
interested parties for greater assurance about mitigation
in the event of unexpected adverse effects.
[278] Mr Bromley gave his recommendations about
monitoring hot springs and representative deep and shallow
bores, and repeat video thermal infrared surveys. He
described an option for mitigating impacts on shallow
aquifers or surface features by directly tapping the
underlying steam zone with production wells. He also
suggested that if a hydrothermal eruption occurred close
to buildings, it could be quenched by shallow injection of
water, or by localised reduction of steam pressure by
venting. He recommended that if adverse effects are
detected, mitigation options should be implemented in
consultation with the peer-review panel.
[284] Contact submitted that there was no reliable

evidence that mass reinjection of fluid from Wairakei
would be a practical measure. The evidence was that it
would have negative effects, particularly in cooling the
shallow aquifer.
[285] Mr Waters contended that there is a tenuous linkage
between taking geothermal fluid as a cause of property
damage, and the effect (due to the time-lag), so that even
if action is taken to remedy property damage or remove
the cause, the effect may continue for a long time, perhaps
years. He observed that ground subsidence cannot be
reversed by reinjection, that mitigation measures would
be experimental and that it may take several years to assess
their effectiveness.
[279] Mr A W Clotworthy, a geothermal reservoir engineer

with Contact, also described in detail monitoring and
testing, the need for a management plan, and support for a
peer review panel and its functions. Mr Hunt described
design measures to avoid or mitigate noise effects, and
suggested a condition of consent in that respect. We have
[286] We hold that the appropriate way to address these

issues is to make a judgment on the proposal on the basis
that if the project proceeds there should be a management
280
plan, a comprehensive regime of monitoring, and a peerreview panel independent of the consent-holder; and that
if untoward adverse effects on the environment occur, there
are measures for mitigation of the effects which are
available to be tried, although success in practice cannot
be assured.
details of which might be addressed by counsel for the

parties, and settled by the Court.
Summary of effects
[293] We accept the submission by Contact that of all the
witnesses called on behalf of parties opposed to the appeal,
only two were qualified by training and expertise to give
opinion evidence on technical aspects of geothermal
development and the level of likely effects: Drs Watson
and Grant.
[287] On the District Councils point that the project would

preclude mass reinjection as a measure to mitigate
subsidence effects caused by Wairakei abstraction, we
accept Contacts submission that mitigation of that
subsidence is hypothetical and speculative. In our judgment
it is not a sound basis for judicial decision-making.
[294] Dr Watson concluded that a development including

an extraction of 20,000 tonnes per day of geothermal fluid
should produce a significant and measurable but
acceptably low impact. He had not distinguished effects
caused by past Tauhara development, but he accepted that
subsidence caused by past development was ongoing and
would continue into the future in any event. In crossexamination he explained that it would be very difficult to
separate out the effects.
Mitigation condition
[288] The draft conditions of consent proferred by Contact
included an outline of a provision for avoiding, remedying
or mitigating significant actual or reasonably anticipated
property damage caused by the exercise of the consents,
alone or in combination with the consent-holders other
operations. The peer-review panel would have a part in
deciding disputes.
[295] Dr Grant agreed with the consensus of views about

the underground structure of the Tauhara geothermal
resource. His terms of reference had been to advise what
would be required to achieve a very high degree of
assurance or certainty about the effects. He offered a
program of monitoring which would improve the level of
confidence about the effects (on a scale of 1 to 10) from
between 6 and 7, to between 8 and 9.
[289] The respondents submitted that the proposed

condition requires physical damage and the peer review
panel to find that the damage was caused by the consent;
and submitted that if Contact had been confident of the
predictions of its advisers, they would have expected a
more generous approach.
[290] Mr Taylor also submitted that delegating such
questions to a peer-review panel raises questions whether
such delegation would be valid; but he accepted that this
cannot arise where, as here, the regime is proffered by
applicant.
[296] We have found that there have in the past and are
now various effects on the environment at Tauhara
attributable to past abstraction of geothermal fluid for the
Wairakei Power Station, and that changes to geothermal
features are likely to continue even if Contacts present
proposal does not proceed. We have found that it was
appropriate for Contacts expert witnesses to use the
mathematical models to arrive at the opinions that they
gave in evidence, although the outputs are subject to
considerable uncertainty because of limitations in the
models and in the field data on which they have been
developed.
[291] The District Council submitted that the Resource

Management Act is concerned with avoiding, remedying
and mitigating adverse effects on the environment, not with
compensating for damage arising from those effects. It
questioned the practicality of obtaining agreement on
compensation with a town the size of Taupo; and observed
that the suggested compensation conditions would only
apply in respect of significant property damage involving
substantial loss of function from exercise of the consents.
The District Council raised a number of claimed
deficiencies about the suggested condition.
[297] We have found that Contacts project would not be

likely itself to cause any significant adverse effect on
ground subsidence, either alone or cumulative on the
subsidence attributed to abstraction for the Wairakei Power
Station. We have also found that the heat flow and hot
ground effects of allowing the activity would not be more
than minor; that the effects in terms of surface water
changes would be minor; and that the evidence does not
point to seismic activity or hydrothermal eruptions as
effects of allowing the activity. Nor would there be
significant effects on biota.
[292] Contact did not present the suggested condition as a

final, polished piece of drafting. Appropriately, it suggested
it as an expression of a concept that might be developed if
the consents are granted, and if the concept is accepted by
the Court. There may be conditions imposed in other cases
that could assist in the development of such a condition.
We hold that we should make a judgment on the proposal
on the basis that if consent is granted there could be a
condition of that kind, and indeed other conditions, the
[298] We have held that there is no sound basis for

community perceptions of risk as effects on the
281
environment that should influence the decision; nor for

concern that the activity would affect the supply of
geothermal fluid for tourist and visitor facilities; nor for
adverse effects on tourism confidence. We have rejected
claims of adverse effects in respect of a proposed bypass
road and Contacts property rights in respect of land
overlying the geothermal field.
[302] Mr Taylor quoted this passage from the decision of

the Planning Tribunal in Liquigas v Manukau City Council
66
What is called for is an assessment of the risk

and consequences of the proposal before us. In
making that assessment, we must endeavour to
hold a balance between being unduly timorous in
the face of danger, however remote, and being
callous about other peoples safety.
[299] In short, there are no significant adverse actual or

potential effects on the environment of allowing the activity
that should be had regard to in considering the resource
consent application. However consideration of the
application should take into account that there is
uncertainty about the possibility of adverse effects, but that
a regime of monitoring can be provided for, mitigation
measures are available to be tried, and conditions of consent
could provide for an independent peer-review panel to
review measures for avoiding, remedying or mitigating any
significant property damage caused.
[303] Mr Henry contended that in the absence of certainty,

the precautionary principle should apply as the
consequences of risking Taupos natural and built
environment could have catastrophic and long-term
impacts on the communitys social cultural and economic
well-being.
[304] Mr Waters described the project as a risky
experiment based on a mishmash of best guesses, not
good enough in such close proximity to a town particularly
where the geothermal field extends under the town. He
urged that extreme caution should be exercised, assuming
a worst-case scenario, and contended that any risk at all is
unacceptable.
PRECAUTIONARY APPROACH
[300] It was the case of the respondents that assessment
of this case involves application of the precautionary
principle. Their counsel sought to distinguish the radiation
cases, 63 where there had been an absence of scientific
evidence that there was an effect. By comparison he
contended that in this case the geophysics of the resource
are well-understood in broad terms, there is past history
of a heat pulse in and adjacent to Taupo, and in an area
that is now more heavily built up.
[305] We do not accept that there is any basis for finding

that there would be catastrophic and long-term impacts,
for assuming a worst-case scenario, or for extreme
caution. Nor do we accept that any risk at all is
unacceptable. However we do accept that the bases for
the expert witnesses opinions involve some degree of
uncertainty, the possible extent of which was helpfully
quantified by Dr Grant, and incorporated in Dr Watsons
conclusion about acceptably low impact. That
uncertainty should not make us unduly timorous, but
ought properly to be taken into consideration, as Mr Taylor
submitted, in making the ultimate judgment, to which we
can now turn.
[301] Mr Taylor submitted that in this case there is no

unproven scientific hypothesis, no lack of evidence about
effects or potential effects, there is no scientific uncertainty
or ignorance about how the resource responds but an
ignorance in the state of knowledge about the resource such
that we cannot predict with certainty how it will respond.
He contended that the case has more in common with cases
like Liquigas v Manukau City Council 64 and Te Aroha Air
Quality Protection Appeal Group v Waikato Regional
Council (No 2),65 cases where the risk was manifest and
the issue was whether it was sufficiently remote. He
submitted that it would be appropriate to take the
precautionary approach at the ultimate judgment (citing
McIntyre).
62
63
64
65
66
67
JUDGMENT
[306] We have found that the land-use consent has the
status of a noncomplying activity, because the operation
and maintenance of the existing well TH3 is not provided
for in the relevant section of the transitional district plan.
Section 105(2)(b) of the Resource Management Act67
A Montgomerie, statement of evidence, page 6, paragraph 18.

McIntyre v Christchurch City Council[1996] NZRMA 289 and Shirley Primary School v Telecom Mobile Communication [1999] NZRMA 66.
(1983) 9 NZTPA 193.
[1993] 2 NZRMA 574.
(1983) 9 NZTPA 193 at paragraph 23.8, page 220.
Prior to incorporation of the 1997 amendment see footnote 5.
282
prohibited granting of consent for a noncomplying activity

unless having considered the matters set out in section 104,
the consent authority is satisfied that any effect on the
environment will be minor, or granting consent will not
be contrary to the objectives and policies of the plan.
satisfy the Court that the potential impact of the effects

will not occur; that although the chances of serious adverse
effects are small, if the effects do occur they would impact
on hundreds, if not thousands, of people.
[310] The District Council submitted that to grant the
consents, the Court must have a high degree of assurance
and certainty about the extent, location and probability of
adverse effects and that the effects can and will be avoided
or remedied, or very substantially mitigated. The particular
circumstances said to require that very high degree of
assurance were that the Tauhara geothermal field underlies
the Taupo township; that adverse effects have actually been
experienced at Taupo arising from extraction of geothermal
fluid at Wairakei; the gravity of the potential effects; and
the existence of very substantial urban, industrial, tourism
and recreational assets and development in areas of Taupo
which have suffered adverse effects from draw-off from
the Wairakei-Tauhara geothermal system.
[307] Our findings about effects on the environment

considered as required by section 104 are that any effect
on the environment will be minor. Further, there is nothing
in what may be identified as objectives and policies of the
district plan relating to the absence of provision in the Rural
zone for the operation and maintenance of the existing well
TH3 that would lead to a finding that this activity would
be contrary to the objectives and policies of the plan.
Considering the total proposal, and the totality of the
objectives and policies of the plan, and bearing in mind
that it is a composite of provisions of two former district
schemes under the Town and Country Planning Act 1977
we accept the unchallenged opinion of Mr Chrisp and are
satisfied granting consent for the land-use activities will
not be contrary to the objectives and policies of the district
plan. Accordingly we hold that the contingent prohibition
of section 105(2)(b) is not effective, and the Court is not
precluded by that from exercising the judgment to grant
or refuse consent conferred by section 105(1)(c).
[311] The District Council contended that the Court cannot

have that very high degree of assurance because the
appellants modelling is inadequate; that existing
monitoring of adverse effects is inadequate to establish
baselines against which changes could be measured; that
future monitoring may not be effective to prevent future
adverse effects because of the delay between cause and
changes that are able to be monitored; and that assessment
of risk to people and property are fundamental matters for
the Court to consider when deciding the appeal, and not to
be left to a peer review panel in reaction to effects that
occur.
[308] We accept Mr Robinsons submission that this

requires an overall broad judgment of whether the proposal
would promote the sustainable management of natural and
physical resources, and that this allows for comparison of
conflicting considerations and the scale or degree of them,
and their relative significance or proportion in the final
outcome. 68

that because there is not enough detailed scientific
knowledge about the southern part of the Tauhara
Geothermal Field to be able to predict its performance as
a result of the drawdown of fluid from the northern part of
the field, a very conservative approach is called for.
[309] Counsel for the respondents urged that because a

consent, once granted, cannot be recalled even if later
investigations show that it should not have been granted,
the appellant must produce compelling evidence to satisfy
the Court that the potential impact of the adverse effects
on the environment will not occur; and that if the Court
does not find the evidence compelling, then either as a
result of the application of the statutory criteria, or as a
result of the precautionary principle in the Courts overall
discretion, the Court should refuse the application. The
respondents submitted that even a very small possibility
of a risk occurring will be sufficient to decline consent if
the risk of sufficiently high impact, citing decisions in
Liquigas 69 and Te Aroha (No 2).70 Mr Taylor urged that
the scale or degree of the effects requires the applicant to
demonstrate to a very high level that their proposal is
worthy of resource consent. He contended that the applicant
had not produced the compelling evidence required to
68
69
70
[313] Mr Henry contended that because the use of the

geothermal resource is perceived to be free there is no
encouragement to explore ways of using the resource more
efficiently, and an encouragement to plunder the resource.
[314] Contact did not accept that if effects arise which
had not been predicted, those effects would necessarily
have high impact; and that the possibility of high potential
impact events occurring is so low or remote that it should
not preclude the grant of consent. Mr Robinson submitted
that a no-risk regime is not compatible with the definition
of sustainable management, citing Aquamarine v Southland
North Shore City Council v Auckland Regional Council [1997] NZRMA 59.
(1983) 9 NZTPA 193.
[1993] 2 NZRMA 574.
283
Regional Council.71 In response to Mr Henrys contention

about use of the geothermal resource being perceived as
free, Contact relied on the Planning Tribunal decision in
Swindley v Waipa District Council 72 to support the
proposition that classification of the proposed activity as
a discretionary activity implies that in general it is an
efficient use and development for the purpose of Part II.73
sustain the potential of the resources involved to meet

future needs, and would safeguard the life-supporting
capacity of air, water, soil and ecosystems.
[319] In our judgment the appropriate scale or degree to
ascribe to the relevant significance of the concerns
advocated by the opponents, including the uncertainty of
the predictions about adverse environmental effects, is not
enough to warrant refusing the consents. We find that the
modified proposal would overall serve the purpose of
sustainable management of natural and physical resources,
and that the resource consents needed should be granted,
subject to compliance with conditions which the Court will
impose.
[315] We repeat that we accept that there is uncertainty

about the degree of the environmental effects of the
proposal that ought to be taken into account in making the
judgment. The extent of the uncertainty is represented by
Dr Watsons description of acceptably low impact, and by
Dr Grants placing the confidence level at between 6 and
7 on a scale of 0 to 10. We place reliance on their evidence
because of their professional understanding of the subjectmatter. We also accept Mr Robinsons submission that the
Act does not impose a no-risk regime.
TERMS AND CONDITIONS

Terms and conditions of consents
[316] Those form the context in which we consider that

the cases of the opponents are not in perspective. Even
allowing for the uncertainty in the predictions, the evidence
does not support even low probability of catastrophic and
long-term impacts of the project on hundreds or thousands
of people, or of grave potential effects endangering very
substantial property assets, as claimed.
[320] The hearing proceeded on the basis that if the Court

decides that consent should be granted, the parties would
then confer about the terms and conditions of consent.
Accordingly we invite counsel to confer, and in due course
to submit a draft formal order granting the consent needed
for the modified proposal, and attaching proposed
conditions, to give effect to the contents of this interim
decision. If agreement cannot be reached, we will receive
written submissions or hold a public sitting to hear
submissions, whichever is appropriate in the
circumstances.
[317] We also repeat that in approaching the judgment we

do so on the basis that if consent is granted, conditions
would be imposed including those discussed earlier in this
decision about avoiding, remedying and mitigating adverse
effects on the environment.
COSTS
[321] The question of costs is reserved. Written
submissions may be made.
[318] In terms of the meaning ascribed to the term

sustainable management in section 5(2), we find that the
modified project would represent a management of the
geothermal resource in a way and at a rate which enables
Contact, and the community, to provide for their economic
wellbeing and for their safety. It does not conflict with the
relevant planning instruments in any significant respect.
Allowing the activity is not likely to have significant actual
or potential effects on the environment and, if carried on
in compliance with appropriate conditions, would avoid,
remedy or mitigate any adverse effects that occur. It would
71
72
73
DATED at Auckland this 24 th day of January 2000.
For the Court:
DFG Sheppard,
Environment Judge
Environment Court Decision C126/97.

Planning Tribunal decision A75/94.
Mr Robinson subsequently cited regulation 14(1) of the Resource Management (Transitional Fees, Rents and Royalties) Regulations 1991 which
provides for continuation of section 10(1) of the Geothermal Energy Act 1953 (as substituted by section 3(1) of the Geothermal Energy Amendment
Act 1977) authorising the Minister for the Environment to impose royalties for use of geothermal energy. We assume that the royalty would be at
a substantial rate, on reasoning similar to that in paragraph 10.4 of Minister of Lands v Bay of Plenty Regional Water Board Planning Tribunal
Decision A55/84.
284
285
DECISION A53/99
IN THE MATTER
AND
IN THE MATTER
of ten appeals/requests for inquiry under section 120 of the Act
BETWEEN
H TE M PARATA
(RMA 42/98)
NORTHLAND PORT CORPORATION (NZ) LIMITED
(RMA 54, 55 and 56/98)
J HAMMON and others
(RMA 60/98)
THE MINISTER OF CONSERVATION
(RMA 61 and 64/98)
THE DIRECTOR-GENERAL OF CONSERVATION
(RMA 62 and 63/98)
WHANGAREI HEADS CITIZENS ASSOCIATION INCORPORATED
(RMA 92/98)
Appellants
AND
THE NORTHLAND REGIONAL COUNCIL and THE
WHANGAREI DISTRICT COUNCIL
Respondents
HEARING at WHANGAREI on 10, 11, 15, 16 and 17 March 1999.
APPEARANCES
S M Henderson and G L Davis for H T M Parata, appellant in Appeal RMA 42/98.
J K MacRae and D Clay for Northland Port Corporation, appellant in Appeals RMA 54, 55 and 56/98.
J Hammon for the appellants in Appeal RMA 60/98.
P Gorringe for the Minister of Conservation, appellant in Appeals RMA 61 and
64/98 and for the
Director-General of Conservation, appellant in Appeals
RMA 62 and 63/98.
F Iseke for the Whangarei Heads Citizens Association, appellant in Appeal RMA
92/98.
B I J Cowper for the Northland Regional Council and the Whangarei District
Council, respondents.
W E Redwood, submitter, in person.
286
DECISION AND REPORT TO THE MINISTER OF

CONSERVATION
fulfil their role as kaitiaki. The grounds of appeal also

claimed that the joint hearings committee had not taken
into account the principles of the Treaty of Waitangi in
that it had failed to consult adequately, had failed to actively
protect taonga, and had failed to have regard to the principle
of partnership.
INTRODUCTION
1.
The Northland Port Corporation (NZ) Limited
proposes to establish a new deep-water port in the
Whangarei Harbour at Marsden Point. It needs some 24
resource consents under the Resource Management Act
1991 to do so. Its applications for those consents were
notified, and drew numerous submissions in opposition.
6.
By Appeal RMA 54/98, Northland Port Corporation
sought an inquiry into recommendations to the Minister
of Conservation in respect of restricted coastal activities,
seeking amendments to conditions recommended.
7.
appealed against decisions of the joint hearings committee
which were the responsibility of the Regional Council,
namely the refusal of consent for maintenance dredging,
and conditions on other coastal permits. It sought grant of
consent for the maintenance dredging, and amendments
to certain conditions imposed by the hearings committee
decision.
2.
Some of the proposed activities required the consent
of the Northland Regional Council, and some required the
consent of the Whangarei District Council. Some of the
activities are classified as restricted coastal activities. The
primary hearings of the resource consent applications were
therefore conducted by a joint hearing committee appointed
under sections 102 and 117 of the Resource Management
Act. After a full hearing, the committee determined to grant,
or to recommend that the Minister of Conservation grant,
23 of the consents sought. Consent for maintenance
dredging was refused.
8.
appealed against decisions of the joint hearings committee
which were the responsibility of the District Council. It
appealed against the omission of some of the description
of the purpose of the land-use consent, and the
identification of the land on which it is to be exercised;
and it also sought amendments to the conditions imposed
on the land-use consents by the hearings committees
decisions.
3.
These ten appeals under section 120 of the Resource
Management Act 1991 arise from the committees
decisions. Four other appeals were withdrawn1 .
4.
To the extent that the proposed activities are
classified as restricted coastal activities, the appeals are
inquiries, and the Courts function in these proceedings is
not to decide the resource consent applications, but to
conduct an inquiry on the joint hearings committees
recommendations and to report on that inquiry to the
Minister of Conservation2 . In all other respects the Courts
function is to conduct a rehearing of the resource consent
applications, and make decisions on them in place of the
hearings committees decisions3. Because the issues are
intertwined, rather than make a report to the Minister and
a separate decision, by this one document we do both.
9.
By Appeal RMA 60/98, J Hammon, Patuharakeke te
Iwi, Patuharakeke Kaumatua and Jan Dobson appealed
against the decisions and recommendations of the joint
hearings committee, and sought that consent to the resource
consent applications be refused. The grounds of appeal were
that the decisions and recommendations of the joint hearings
committee were contrary to the purpose of the Act stated in
section 5; that they did not provide for the relationship of
Maori with their ancestral lands, water, sites, waahi tapu
and taonga as required by section 6(e); did not appropriately
deal with the role of Patuharakeke as kaitiaki; and did not
properly and appropriately take into account the principles
of the Treaty of Waitangi.
The appeals
5.
By Appeal RMA 42/98, Hori Te Moanaroa Parata
appealed against the decisions and recommendations of
the joint hearings committee, and sought that grants of
consents be cancelled. The particulars of the grounds of
appeal referred to the relationship of Maori and their culture
and traditions with their ancestral land, water, sites, waahi
tapu and taonga; and to the extent to which the resource
consents would impact on the ability of tangata whenua to
1
2
3
10. By Appeal RMA 61/98 the Minister of Conservation

appealed against the joint committees decision and sought
amendments to certain of the conditions imposed by the
joint hearings committee, review of discharge locations
and incorporation of mitigation and compensation
measures.
The appeals that were withdrawn were Appeals RMA 22, 65, 81 and 82/98.
See section 118(6) of the Resource Management Act 1991.
See Fleetwing Farms v Marlborough District Council [1997] NZRMA 385, 391-2; 3 ELRNZ 249, 257-8 (CA); K A Palmer Local Government
Law in New Zealand (2d ed) 646; DAR Williams Environmental and Resource Management Law (2d ed) 167.
287
11. By Appeal RMA 62/98 the Director-General of

Conservation appealed against the hearings committees
recommendations about community liaison, harbour
monitoring and kaitiaki groups, and public accesses, and
sought amendments to certain conditions of consent
recommended by the hearings committee.
land in the locality for that purpose so that its total holding
there is about 302 hectares. In addition, it has a leasehold
estate in various areas of foreshore and seabed, including
some 50 hectares at Marsden Point and at Blacksmiths
Creek and Marsden Bay. The company is the proponent of
the deepwater port development, the applicant for the
resource consents the subject of these proceedings, and
the appellant in Appeals RMA 54, 55 and 56/98.
12. By Appeal RMA 63/98 the Director-General of

Conservation appealed against the hearings committees
recommendations about the scope of the community liaison
group, triggers for review of the consents, alternative
discharge locations, stormwater monitoring, mitigation and
compensation measures, and sought further amendments
to the conditions of consent recommended by the hearings
committee.
18. The appellants in Appeal RMA 60/98, J Hammon,

Patuharakeke te Iwi, Patuharakeke Kaumatua and Jan
Dobson are representative of the interests of the
Patuharakeke iwi who have traditional and cultural interests
in the Whangarei Harbour and in part of the southern shore
in the vicinity of Marsden Point.
13. By Appeal RMA 64/98 the Minister of Conservation

appealed against the hearings committees decisions in
respect of the community liaison group, access to wildlife
areas, esplanade strip on reclamation, archaeological sites,
and mitigation and compensation measures, and sought
further amendments to the conditions of consent.
19. The Minister of Conservation has responsibilities

under the Conservation Act 1987, including foreshores.
By section 119 of the Resource Management Act, the
Minister of Conservation is also the consent authority in
respect of restricted coastal activities. To avoid apparent
conflict between those responsibilities, submissions under
the Resource Management Act in pursuit of interests under
the Conservation Act in respect of restricted coastal
activities are not made in the name of the Minister, but in
the name of the Director-General of Conservation4 . In
accordance with section 117(1)(b) of the Resource
Management Act, a person was appointed by the Minister
to the joint hearings committee which conducted the
primary hearing prima facie the resource consent
applications. To the extent that the resource consent
applications are for restricted coastal activities, this
document is the Courts report to the Minister of
Conservation, who then has the decision-making
responsibilities set out in section 119 of that Act.
14. By Appeal RMA 92/98 the Whangarei Heads

Citizens Association appealed against the joint hearings
committees decision in respect of details about the
community liaison group.
The parties
15. Mr Parata is of Te Waiariki descent, associated with
the Ngatikorora and Ngatitaka hapu of Ngatiwai iwi. He
is also the vice-chairman of the Ngatiwai Trust Board and
resource management convenor of the Trust Boards
Resource Management Unit. Ngatikorora have traditionally
lived on the northern shores of the Whangarei Harbour.
Mr Parata lives at Onerahi, a suburb of Whangarei which
lies on the Whangarei Harbour, albeit some distance from
the site of the proposed new port.
20. The nature and interest of the Whangarei Heads

Citizens Association Incorporated is evident from its name.
21. The Northland Regional Council is the regional
council for the Northland Region in which the site for the
proposed port is located. It is the consent authority for the
resource consent applications applying to the coastal
marine area, except to the extent that they are restricted
coastal activities (in respect of which the Minister of
Conservation is the consent authority). The Regional
Council is also the major shareholder in Northland Port
Corporation. In addition it has land interests in parts of the
areas affected by the applications. In accordance with
section 102 of the Resource Management Act, the Regional
Council and the Whangarei District Council held a joint
hearing of the resource consent applications. The Regional
Council appointed two independent persons to the joint
16. Mr Parata acknowledged that his appeal had been

lodged in his own name, although he stated that he was
also in court for his brothers, sisters and grandchildren.
However he did not claim to have brought his appeal on
behalf of Ngatiwai iwi, or on behalf of the Ngatikoroa or
Ngatitaka hapu.
17. Northland Port Corporation (NZ) Limited was
incorporated in 1988 as a port company in terms of the
Port Companies Act 1988. Under that Act, land at Marsden
Point that had previously been acquired by the former
Northland Harbour Board for port development was
transferred to the company; and it has since acquired other
In these proceedings it is not necessary for us to consider whether that way of separating submissions from the responsibility to make decisions
on resource consent applications is satisfactory, because the appeals by the Minister and by the Director General of Conservation have been
settled.
288
hearings committee. By section 102(5) of the Act, the

Regional Council is the respondent to these appeals to the
extent that they relate to proposals in the coastal marine
area.
27. On 12 February 1999 the Registrar of the

Environment Court gave notice to all parties that the
remaining appeals would be heard at a sitting of the Court
at Whangarei to commence on 10 March 1999.
22. The Whangarei District Council is the territorial

authority for the district in which the parts of the site above
the coastal marine area would be situated. It is the consent
authority in respect of the resource consent applications
relating to land-use. It also has land interests in the area
affected. In accordance with section 102 of the Act, the
District Council appointed two independent persons to the
joint hearings committee. By section 102(5), the District
Council is the respondent to these appeals to the extent
that they relate to proposals outside the coastal marine area.
28. When the Court commenced its sitting on that day,

we were informed that all the appeals had been settled
except that by Mr Parata. That appellant sought an
adjournment for three months, but the Court was unable
to hear submissions on that motion on that day, because of
disruption of the Courts proceedings by persons outside
the court using a loudhailer to protest at the Court sitting
and to compel the Court to adjourn. The Court sitting on
that day had to be abandoned.
29. On the next day (11 March), the Court resumed its
sitting in another courtroom less vulnerable to that kind of
disruption. We heard submissions from Mr Parata in
support of his motion for an adjournment, and from counsel
for Northland Port Corporation and for the respondents,
who opposed the adjournment. Having taken time to
deliberate, the Court gave an oral decision declining to
adjourn the hearing of the appeals6 . However we indicated
that we would give Mr Parata a little more time in which
to complete preparation of his address in support of his
appeal (a matter which had featured in his submissions in
support of the adjournment). For that purpose we appointed
15 March 1999 at 1 pm as the time for the presentation of
his case in support of his appeal.
23. Mr W E Redwood lives at Whangarei and has had a

lifetime interest in the health of Whangarei Harbour,
including recreational sailing in the harbour. He had lodged
a submission on the resource consent applications, and as
a submitter he was heard in these proceedings under section
271A of the Act.
The appeal hearing
24. The appeals were lodged with the Registrar of the
Environment Court in early 1998. On 15 September 1998
we held a conference with the parties 5 with a view to
making arrangements for a fair, orderly and efficient
hearing of the appeals. At that conference, we were
informed that the parties to the appeals by Northland Port
Corporation, the Minister and Director-General of
Conservation, and the Whangarei Heads Citizens
Association had reached agreement on how most of the
issues raised in them should be disposed of. We were also
informed that the appeals and requests for inquiries by Mr
Parata, J Hammon and others, and the Northland Urban
Rural Mission challenged grant of resource consents and
it was expected that they would require hearing by the
Court.
30. The Court then received proposals from the parties to the
other appeals, which had been settled, about the disposal of those
appeals by making orders by consent (subject to the outcome of
Mr Paratas appeal). The orders sought by consent would grant
resource consent for maintenance dredging subject to conditions
(allowing Northland Port Corporations appeal in that respect);
and making amendments to conditions imposed or recommended
by the joint hearings committee on the other resource consents.
Only one party sought to be heard in opposition to those proposals,
Mr W E Redwood, who sought to be heard under section 271A of
the Act, as a person who had made a submission.
25. At the conference the Court gave directions requiring

those appellants to deliver statements listing all issues to
be advanced, and the names and topics of all witnesses to
be called by them; and requiring the exchange of statements
of evidence by 15 December 1998 and statements of
evidence in rebuttal by 31 January 1999. The Court also
advised the parties to prepare for hearing on the prospect
that it would commence in the latter part of March or April
1999.
31. On 12 March, accompanied by Mr Parata and

representatives of Northland Port Corporation and the
respondents, we visited the site at Marsden Point and
viewed various aspects of the site.
32. When the Court resumed its sitting on 15 March
1999 at 1 pm to hear his case in support of his appeal, Mr
Parata was represented by counsel, who began by
presenting a further motion for adjournment, this time for
two months. We heard submissions by counsel for Mr
Parata in support of that motion, and by counsel for
26. Subsequently the appeal by the Northland Urban

Rural Mission was withdrawn.
5
6
The conference was held in accordance with section 267 of the Resource Management Act.
The record of that oral decision is identified as Decision A32/99.
289
Northland Port Corporation and the respondents in

opposition. Having taken time to deliberate, the Court gave
an oral decision again declining to adjourn the hearing of
Mr Paratas appeal 7 .
read a previously prepared statement of rebuttal evidence.

The cross-examination of Mr Parata and Ms Armstrong
by counsel on behalf of the applicant and the respondents
was focused on the amended relief sought, namely the
introduction of the proposed condition for a kaitiaki
structure. There was nothing in Mr Paratas answers to
questions in cross-examination to indicate any doubt that
his appeal would be satisfied by the proposed condition,
or that he was no longer seeking that the resource consents
be cancelled.
33. The Court then called on counsel for Mr Parata to

present his case in support of his appeal. Mr Davis then
made an opening address, in the course of which it became
apparent that the appellant was seeking imposition of a
condition of resource consent for a kaitiaki structure by
which tangata whenua would be able to continue their role
as kaitiaki of the Whangarei Harbour. It also became
apparent that the wording of the condition sought had not
been settled. To ensure that the Court, the applicant, and
the respondents could understand what was sought, we
adjourned the hearing to enable counsel to take further
instructions, and to present the Court and counsel for the
applicant and respondents with the wording of the
condition sought.
37. However when the Court resumed on the following

day, counsel for the appellant Mr Parata announced that
their instructions to act on his behalf had been withdrawn,
and they were given leave to withdraw. The appellant, Mr
Parata, then resumed personal conduct of his own case,
and made what he described as a final statement to the
Court:
I, my whanau, hapu and iwi remain resolutely and
absolutely opposed to the project in its entirety.
34. When the Court sitting resumed, Mr Davis presented

the Court with the wording of a proposed new condition
to be inserted in the conditions of the coastal permit for
reclamation and the land-use consent for use of land
(including the land proposed to be reclaimed) for port and
related activities. The conditions would require payment
by the consent-holder of $15,000 to fund a Kaitiaki
Structure to provide a forum to address relevant tangata
whenua concerns arising from exercise of the resource
consents for development and operation of the proposed
port. The proposed conditions set out details of the
composition and scope of the Kaitiaki Structure, and
provided for the consent holder to pay up to $25,000 per
annum for scientific studies for the purpose of monitoring
the cultural impacts of the development. The proposed
conditions also provided for the consent holder to pay to
the appellant, Mr Parata, $10,000 as a consultancy fee.
38. In response to an enquiry from the Court, Mr Parata

stated that he would not be satisfied by the condition which
had been presented on his behalf by his counsel on the
preceding day. The appellant did not stay to take any further
part in the proceedings, but left the courtroom and did not
return during the remainder of the sitting.
39. The Court then proceeded to hear the cases for the
applicant and for the respondents. In the absence of Mr
Parata or any representative on his behalf, the witnesses
for those parties were not cross-examined. To avoid
unnecessary inconvenience and cost, and there being no
opposition, the evidence of some witnesses was admitted
by affidavit. Some other witnesses who (having been
sworn) confirmed the truth of the contents of prepared
statements of their evidence were not required to read them
out in full in court on the basis that we would read them
ourselves.
35. In response to the Courts enquiry, and after taking

further instructions from Mr Parata (who was present in
court), counsel confirmed that the imposition of that
condition was a complete statement of all the relief that
was sought by the appellant, instead of the seeking that
the resource consents be cancelled. Counsel acknowledged
that this represented a significant change in Mr Paratas
position.
40. Counsel for Northland Port Corporation proposed

an amendment to one of the conditions imposed by the
joint hearing committee with a view to addressing the issue
advanced on behalf of Mr Parata about effects on waahi
tapu, taonga and other features of special interest to tangata
whenua. Mr Paratas absence from the hearing deprived
us of the opportunity of having his response to that
proposed amendment.
36. The hearing proceeded on that basis, and two

witnesses gave evidence in support of the appeal: Mr Parata
himself, and Ms M Armstrong. In the light of the refinement
of the relief sought by Mr Parata, the evidence-in-chief of
Ms Armstrong was modified from her previously prepared
statement of evidence, in that paragraphs 8 to 14 of that
statement were omitted, and the witness was not asked to
41. Finally, the Court heard the submissions presented

by Mr Redwood on three aspects of the amendments to
conditions proposed by other parties. First he sought a time
limit for monitoring the turning basin floor; secondly he
The record of that oral decision is identified as Decision A33/99.
290
opposed deletion of a requirement that the consent-holder

immediately notify the Regional Council of escape of a
contaminant, and replacement by a requirement for notice
within one week. Thirdly he opposed amendment of a
condition about making available an area for a wetland
for treating water in Blacksmiths Creek. The amendment
would require approximately 0.5 hectares to be made
available instead of not less than 0.5 hectares. The Court
also heard submissions from counsel for Northland Port
Corporation and the respondents in reply to Mr Redwoods
submissions.
the other parties, and out of order for the Court to receive
in evidence the documents enclosed with Mr Paratas letter.
Accordingly we have not read them.
THE PROPOSAL
The original proposal
45. The proposal involves dredging a turning basin
adjacent to the main channel through the Whangarei Heads
to a depth of 13 metres for manoeuvring ships into a berth.
The turning basin would be up to 430 metres wide. An
area of 32 hectares would be reclaimed from the harbour
bed. It would extend about 850 metres to the west of an
existing jetty at Marsden Point, and would extend about
500 metres out from the existing shore. The reclamation
would be formed by constructing a perimeter bund wall
with quarry rock, and filling behind that wall with material
dredged from the turning basin. Water content in the
dredgings would be decanted back into the harbour. On
the northern edge of the reclamation a wharf about 30
metres wide would be constructed on piles. There would
be berths for ships for general cargo and for forestry
produce. A dry bulk-cargo pier would be constructed as an
extension to the existing jetty. A quarantine station, barge
berths and a water taxi ramp would also be provided.
42. On 24 March 1999, following the end of the hearing

and inquiry, the Registrar of the Environment Court
received from Mr Parata what purported to be a statement
of evidence of a Dr Cleese in reply, documents which he
stated should have been tabled with Moea Armstrongs
evidence, a document which he stated was to have been
tabled with Warren Farrellys evidence, and a notice of
change of representation and address for service. On 29
March 1999 the Registrar received a response by the
solicitors for the Northland Port Corporation objecting to
the Court considering those documents (save the last) on
several grounds.
43. The first was that on 16 March 1999 counsel for Mr
Parata had closed Mr Paratas case without having called
Dr Cleese as a witness, and without having sought leave
to place any further evidence before the Court. The second
ground was that Mr Poynter, a witness called for the port
company, had not been asked to give evidence he had
prepared in reply to that of Dr Cleese, because the latter
had not been called as a witness. The third ground was
that Ms Armstrongs evidence had been limited to about
two pages of her initial statement of evidence, and an
objection by counsel for the Northland Port Corporation
to her giving further evidence by reference to a bundle of
documents had been upheld. Fourthly, counsel for Mr
Parata had elected not to ask Ms Armstrong to present
evidence that she had prepared in reply, on the basis that it
dealt with matters of consultation, which were no longer
relevant to the issues before the Court on Mr Paratas
appeal. The two documents relating to Ms Armstrong
referred to in Mr Paratas letter had both been referred to
in the statement of Ms Armstrongs statement in reply,
which she had not given in evidence. Next, Mr Farrelly
had not been called as a witness and had not produced any
statement or document to the Court. Finally, after Mr Parata
had withdrawn instructions from his counsel, he had
departed from the proceedings, and had not sought leave
to present any further evidence or to produce any further
documents to the Court.
46. Behind the berth faces there would be areas of open

and covered storage for cargoes, and buildings for
administration, workshops, equipment maintenance, and
other services. A transport corridor is proposed to provide
access to the port for cars and trucks, heavy off-road
vehicles, with provision for possible future railway,
conveyor and pipeline. Carparking would be provided for
104 cars. Provision for public access to the foreshore would
be by an accessway 10 metres wide, and there would be a
6-metre wide walkway to the water taxi berth.
47. A stormwater disposal system would be established
on land behind the wharf development and storage areas.
It would include a settlement pond behind Blacksmiths
Creek leading to a storage pond further to the west. About
39% of the stormwater collected would pass from the
storage pond and spill into the harbour through a spillway
leading back to the northern face of the wharf, where it
would be dispersed into the tidal current in deep water. A
similar quantity would be irrigated on farmland. The
remainder would be lost by evaporation and seepage.
Modifications to the proposal
48. Following notification of the resource consent
applications, some modifications of detail were made to
the proposal. The length of the dredged turning basin was
reduced; the access strip to the eastern foreshore was
widened; a combined entrance for the port and refinery is
now proposed; the locations of port administrative and
44. Those grounds are consistent with the events that

occurred. As the Courts hearing and inquiry had been
concluded, and leave had not been reserved for the
presentation of additional evidence, it would be unfair to
291
service buildings, water taxi ramp and pontoon and the

quarantine station were altered; and changes made to the
wharf cross-section.
53. Although the certificates of compliance that have

been granted confirm that Northland Port Corporation is
entitled to undertake most of the important land-based
elements of the proposal as of right, uncertainties about
the precise areas to which they apply and the need for
certainty of authorisation for the project have led the
company to include all aspects of the proposal in its
resource consent applications. Even so the status of many
of the land-based activities as permitted activities is
relevant to consideration of the appeals because the
certificates of compliance that have been granted by the
District Council are authority for the activities to which
they relate. We now summarise them.
49. Northland Port Corporation has agreed to enter into

a $5 million bond to secure performance of all works and
mitigation measures. It will investigate the feasibility of
constructing a short pier jetty on the northern end of the
access on the western wall to provide a fishing platform.
It will construct and maintain a public access from One
Tree Point Road to the western end of the reclamation
including vehicle access to a car park and walking access
along the western wall of the reclamation at a point 70
metres form the northern wharf face. Planted amenity strips
are to be provided along the eastern side of the transport
corridor, along the northern side of One Tree Point Road,
and along the western boundary of the development site.
Specimen trees are to be planted along parts of the
foreshore edge, and on the eastern and western edges of
the reclamation. Northland Port Corporation is to
contribute $1.5 million towards upgrading of the access
route from State Highway 1 to the proposed port.
THE CONSENTS
54. First, on land zoned Industrial D and subject to

Designation 381 in the south-eastern sector of the
development area, port and port-related activities and
buildings including loading and unloading structures, cargo
sheds, port storage and transport operating areas, as shown
on the development plan and elevations in the application
documents are permitted activities.
55. Secondly, on land the subject of Designations 380
and 381, construction, use and maintenance of covered
and uncovered storage areas as shown on the development
plan and elevations are permitted activities.
SOUGHT
50. Resource consents are required from the District

Council for activities on land above the coastal marine
area; they are required from the Regional Council for
activities in the coastal marine area and for discharges to
land, water and air; and from the Minister of Conservation
for those classified as restricted coastal activities. A
description of the consents sought from each consent
authority follows.
56. Thirdly, on land the subject of those designations,

and land in the Marsden Point Special Industrial Zone,
construction, operation and maintenance of stormwater
collection and bark separation systems together with
stormwater settlement and storage ponds as shown on the
development plan are permitted activities. This does not
apply to the stormwater storage pond which is on land
zoned Rural B.
The Whangarei District Council
57. Fourthly, on land identified on the development plan

as irrigation areas for spray irrigation, equipment ancillary
to irrigation of treated stormwater south of Blacksmiths
Creek and the use of that land for spray irrigation by treated
stormwater are permitted.
51. Many of the proposed activities on land are permitted

activities in terms of the district plan. Northland Port
Corporation has sought eight certificates of compliance8
in respect of activities which it claims are permitted
activities. The District Council has granted six of those
certificates, and has declined certificates sought for
deposition of dredgings, and for hours of operation of the
port. The applicant has lodged objections in those respects,
and by agreement the issues raised have been held over
pending the outcome of these appeals.
58. Fifthly, on land the subject of Designation 381,

ancillary buildings including administrative building,
equipment maintenance building, utility maintenance
stores, stevedoring facilities, berth operations shed, and
gatehouse as shown on the development plan and
elevations in the application documents are permitted. The
applicant acknowledged that this does not extend to the
proposed Mission to Seamen facility.
52. Northland Port Corporation has also applied for and

been granted an extension of the period for giving effect
to the certificates to seven years from October 1993 to be
consistent with the period for giving effect to a deemed
coastal permit (formerly a designation).
8
9
59. Sixthly, the activities proposed for the transport

corridor as shown on the development plan are permitted9 .
A certificate of compliance may be granted under section 139 of the Resource Management Act.
The certificate of compliance does not apply to the land in Certificate of Title 88C/775 fronting McEwens Road, but this is presumably an
erroneous omission.
292
60. Northland Port Corporation applied for nine separate

resource consents for land use. As none of these were the
subject of contention in the proceedings before the Court,
we can properly summarise them.
plan imposes no limitation on hours, but the District

Council did not issue a certificate of compliance in this
respect.
The Northland Regional Council
61. The first applies to port and port-related activities

as shown on the development plan on four different classes
of land: land east of Marsden Point Road zoned Industrial
D and subject to Designation 381 for harbour works; road
to be stopped, being Papich Road and the end of Marsden
Point Road; land in the Marsden Point Special Industrial
zone; and the land to be formed by the proposed
reclamation 10 .
70. Northland Port Corporation had also sought

numerous resource consents from the Northland Regional
Council. Four of them related to restricted coastal activities,
in respect of which the decision-maker is the Minister of
Conservation. By the Regional Councils proposed regional
plan: coastal, part of the harbour affected by the proposal
would be in a Marine 2 (Conservation) Management Area,
and part would be in a Marine 5 (Port Facilities)
Management Area.
62. The second applies to covered and uncovered storage

areas on the land to be reclaimed, on the portions of road
to be stopped, and on land in the Industrial D and Marsden
Point Special Industrial zones subject to Designations 380
and 381.
71. First, the Northland Port Corporation applied for

consent for occupation of land in the coastal marine area
for port construction and operation. In the proposed
regional coastal plan, port development is classified as a
noncomplying activity in the Marine 2 area, and erection
of new port-related structures is a discretionary activity in
the Marine 5 area. Out of caution, these activities were
treated as restricted coastal activities.
63. The third applies to a Missions to Seamen facility

(including accommodation for the manager) on land zoned
Industrial D and subject to Designation 381. (Evidently
the District Council refused a certificate of compliance
for this because the definition of harbour works in the
Harbours Act included dwellings but only those for port
employees.)
72. Secondly, the Northland Port Corporation applied

for consent for excavation and maintenance dredging of a
dredge basin with a design depth of 13 metres below chart
datum extending approximately 300 metres westward of
the proposed reclamation and approximately 420 metres
out from the berth face11 . This extent of seabed excavation
is a restricted coastal activity; and the dredge basin is a
noncomplying activity in the Marine 2 area and the Marine
5 area.
64. Fourthly land-use consent is sought for the

stormwater collection and bark separation system including
the settlement and storage ponds, including in the Marsden
Point Special Industrial and Rural B zones.
65. The fifth consent is sought for irrigation and
associated equipment in those zones.
73. Thirdly, the Northland Port Corporation applied for

consent for a reclamation from the bed of the harbour of
approximately 32 hectares in area; and in the course of
construction to build a bund wall, to deposit the sediment,
and to discharge settled decant water. The reclamation is a
restricted coastal activity, and it is a noncomplying activity
in the Marine 2 area and in the Marine 5 area.
66. The sixth is for deposition of dredgings during

construction and during maintenance operation on land
between the foreshore, Marsden Point and One Tree Point
Roads and Blacksmiths Creek. This is a discretionary
activity in the Marsden Point Special Industrial zone.
67. Seventhly, access over the land to be reclaimed to
the quarantine station, water taxi and barge terminals,
which themselves will be in the coastal marine area beyond
the District Councils jurisdiction.
74. Fourthly, the Northland Port Corporation applied for

consent to build, use and maintain piles and wharf
structures abutting the reclamation. Out of caution this was
treated as a restricted coastal activity. It is a noncomplying
activity in the Marine 2 area, and a discretionary activity
in the Marine 5 area.
68. Eighthly, ancillary activities including dust

suppression, sprinkler and fire protection systems, lighting,
landscape planting, fencing, parking and transport corridor,
for which consent is sought out of caution.
75. Fifthly, the port company applied for consent for

construction, use and maintenance of covered and
uncovered storage areas supported by a dust suppression
sprinkler and firefighting system, bulk store, conveyor,
69. The ninth consent sought is for operation of the port

for up to 7 days per week, and 24 hours per day. The district
10 See the Resource Management Act, section 89(2) and NZ Rail v Marlborough District Council (1993) 2 NZRMA 449.
11 These dimensions were subsequently modified.
293
loading and unloading facilities and associated systems.

These activities are noncomplying activities as part of a
port development in the Marine 2 area, and are
discretionary activities in the Marine 5 area.
81. The port companys eleventh application to the

Regional Council was for consent to operation of the port
for up to 7 days per week, 24 hours per day including vessel
and machinery movements, operation and discharges. By
the proposed regional coastal plan, the occupation of berth
space by commercial vessels is a permitted activity in the
Marine 5 area, and occupation and use of new port-related
structures is a discretionary activity. In the Marine 2 area,
port development is a noncomplying activity. The proposed
plan places no limit on hours of operation.
76. The sixth application to the Regional Council was

for consent for the establishment, use and maintenance of
a stormwater and bark separation system linked to a 3pond settling and treatment system on land adjacent to and
to the south of Blacksmiths Creek. These activities, being
incidental to port development, are noncomplying activities
in the Marine 2 area, and discretionary activities in the
Marine 5 area. The diversion and discharge of stormwater
is a controlled activity under the proposed regional water
and soil plan.
82. The twelfth application was for consent to discharge

settled and treated stormwater runoff to Marsden Bay. The
discharge is to be through a pipe to the northern face of
the wharf structure in the Marine 2 area. The discharge is
classified as a controlled activity under the proposed
regional coastal plan.
77. The seventh application was for consent to build,

use and maintain an extension to the existing jetty. The
existing jetty lies within the Marine 5 area and is authorised
by a deemed coastal permit (having previously been
designated). Where the extension is in the Marine 5 area it
is a controlled activity; and where it is in the Marine 2
area it is a discretionary activity.
83. The thirteenth application was for consent to

diversion and damming of stormwater, a controlled activity
under the same proposed plan.
84. The fourteenth application was for consent to
diversion of seawater for the purposes of the reclamation
and port construction. That activity is not controlled by
the proposed plan, and consent is required by section 14
of the Act.
78. Eighthly, the port company sought consent to build,

use and maintain a barge berth, water taxi landing and a
quarantine transfer station. The site for the quarantine
station is in the Marine 5 area, and the activity is classified
as a discretionary activity. Where the barge berths are in
the Marine 5 area, they are a discretionary activity; and
where they are in the Marine 2 area, being part of a port
development, they are a noncomplying activity. Likewise
the water taxi landing, being part of a port development in
the Marine 2 area, is a noncomplying activity.
85. The fifteenth application to the Regional Council

was for consent to taking and discharge of settled and
treated water, including stormwater, by spray irrigation to
land. That is a controlled activity under the proposed water
and soil plan. It is not specifically dealt with by the
proposed regional air quality plan, and is therefore
classified as a discretionary activity in respect of that
instrument.
79. The ninth application to the Regional Council was

for consent to all earthworks, disturbance of foreshore and
seabed, removal of sand, shingle, shell and other natural
material, depositing of material, compaction and other
works and excavations necessary for the construction,
operation and maintenance of the port and associated
support facilities and systems including the establishment
of the stormwater settlement pond and stormwater storage
facilities. Out of caution these were treated as restricted
coastal activities, and noncomplying activities in the
Marine 2 area. In the Marine 5 area they are noncomplying
activities as they are not included in any specific activity
provided for. By the proposed regional water and soil plan,
earthworks outside the coastal marine area and outside a
streamside management area are controlled activities, but
a discretionary activity if inside a streamside management
area.
86. The sixteenth application to the Regional Council

was for consent to discharge particulate matter and
contaminants into the air. Discharges of contaminants to
air (other than from building construction and dust from
moving vehicles, which are permitted activities) are
discretionary activities.
87. Finally, the port company applied to the Regional
Council for consent for the relocation, maintenance and
repair of navigational aids. The placement of navigational
aids is a controlled activity in the Marine 2 area, and their
maintenance and repair is either a permitted activity or
controlled activity.
The Minister of Conservation
80. Tenthly, Northland Port Corporation applied for

consent to deposit dredge tailings on land. By the proposed
regional water and soil plan, earthworks of that kind are a
controlled activity outside a streamside management area,
and a discretionary activity within such an area.
88. From the preceding description of the applications

to the Regional Council, those which are restricted coastal
activities, requiring decision by the Minister of
Conservation, are occupation of the coastal marine area
for port construction and operation, excavation and
294
maintenance dredging of the dredge basin, reclamation,

building, use and maintenance of piles and wharf structures,
and disturbance of foreshore and seabed. To the extent that
it relates to those activities, the Court makes no decision
on the applications, and this document is a report to the
Minister.
THE BASIS
achieving the goals set out in paragraphs (a) to (c) of section

5(2). Particular aspects of achieving those goals are found
in sections 6 and 7: preservation of the natural character of
the coastal environment, and protection from inappropriate
use and development13 ; protection of significant habitats
of indigenous fauna 14 ; maintenance and enhancement of
public access to along the coastal marine area15 ; the efficient
use and development of natural and physical resources16 ;
maintenance and enhancement of amenity values17 ; intrinsic
values of ecosystems18 ; maintenance and enhancement of
the quality of the environment 19 ; and any finite
characteristics of natural and physical resources20 . Thirdly
there are provisions which respond to Maori values and
interests: the relationship of Maori and their culture and
traditions with their ancestral lands, water, sites, waahi tapu
and other taonga 21 ; kaitiakitanga22 ; and the principles of
the Treaty of Waitangi 23 .
FOR DECISION
Part II
89. The proceedings arise under the Resource
Management Act 1991. The purpose of that Act is stated
in section 5 in this way:
5. Purpose (1) The purpose of this Act is to
promote the sustainable management of natural
and physical resources.
(2) In this Act, sustainable management means
of natural and physical resources in a way, or at a
wellbeing and for their health and safety while -
92. It is implicit that those statements of the purpose

and principles of the Act are to guide the making of
decisions under it.

environment.
93. Consideration of resource consent applications is

governed by Part VI of the Act. In particular, section 104(1)
directs that, subject to Part II, in considering a resource
consent application a consent authority is to have regard
to the various classes of matter listed in that subsection.
Making that subsection subject to Part II implies that the
duty to have regard to those matters is to yield to the
provisions of Part II where there is a conflict between them.
In this case no party submitted that there is anything in
Part II which would conflict with our having regard to the
relevant matters listed. Therefore we have to have regard
to such of the matters listed in section 104(1) as are relevant
to the facts of this case.
Part VI
90. Other important provisions of the Act are found in

sections 6 to 8 of Part II. However, the Act has a single
purpose, and the provisions of those sections are to be
regarded as subordinate and accessory to the stated purpose
of the Act12 .
94.
91. We identify the contents of Part II which may be
relevant to this case. The first is the inclusion, in the
meaning of the term sustainable management, of using,
developing and protecting resources in ways that enable
people and communities to provide for their wellbeing,
health and safety. The second is the aim of doing so while
12
13
14
15
16
17
18
19
20
21
22
23
Material provisions of section 104 are

104. Matters to be considered (1) Subject to
Part II, when considering an application for a
resource consent and any submissions received,
the consent authority shall have regard to
NZ Rail v Marlborough District Council [1994] NZRMA 70.

Section 6(a).
Section 6(c).
Section 6 (d).
Section 7(b).
Section 7(c).
Section7(d).
Section 7(f).
Section 7(g).
Section 6(e).
Section 7(a).
Section 8.
295
(c) Any relevant New Zealand coastal policy

statement, regional policy statement, and
proposed regional policy statement; and
other provisions of a plan or proposed plan;
and
(e) Any relevant district plan or proposed district
plan, where the application is made in
accordance with a regional plan; and
(h) Any relevant designations or relevant

requirements for designations; and

otherwise contravene section 15 or 15B (relating
to discharge of contaminants), the consent
authority shall, in having regard to the actual and
potential effects on the environment of allowing
the activity, have regard to
in respect of those matters over which it has

reserved control:
a consent authority may grant or refuse the
consent, and (if granted) may impose
conditions under section 108:
Provided that, where the consent authority
has restricted the exercise of its discretion,
[consent may only be refused or] conditions
may only be imposed in respect of those
matters specified in the plan or proposed plan
to which the consent authority has restricted
the exercise of its discretion:
activity or a discretionary activity or a
restricted coastal activity), a consent authority
may grant or refuse the consent, and (if
granted) may impose conditions under section
108.
(2) A consent authority shall not grant a resource
consent (a) Contrary to the provisions of section 106 or
section 107 or section 217, or contrary to any
Order in Council in force under section 152
or to any regulations; or
(b) [Repealed]
(c) For a prohibited activity; or
(d) For any activity described as a prohibited
activity by a rule in a proposed plan once the
time for making or lodging submissions or
appeals against the proposed rule has expired
and
made or lodged; or
(ii) All such submissions and appeals have been
withdrawn or dismissed.
(2A) Notwithstanding any decision made under
section 94(2)(a), a consent authority must not
grant a resource consent for a non-complying
activity unless it is satisfied that (a) The adverse effects on the environment (other
than any effect to which section 104 (6)
applies) will be minor; or
(b) The application is for an activity which will
not be contrary to the objectives and policies
of, (i) Where there is only a relevant plan, the
relevant plan; or
(ii) Where there is only a relevant proposed plan,
the relevant proposed plan; or
(iii) Where there is a relevant plan and a relevant
proposed plan, either the relevant plan or the
relevant proposed plan.
(3) For the avoidance of doubt, when granting a
resource consent for a controlled activity
under subsection (1)(a), the matters described
in section 104 shall be relevant only in
determining the conditions, if any, to be
included in the consent.

(4) Without limiting subsections (1) and (3), when
considering an application for a coastal permit, a
consent authority shall have regard to (a) Any relevant policy stated in a New Zealand
coastal policy statement in respect of the
Crowns interests in land of the Crown in the
coastal marine area; and
(b) Any relevant provisions included in the
appropriate regional coastal plan to implement
that policy.
(5) Where an application is made to a regional
council in respect of a reclamation, the consent
authority shall have regard to whether it is
appropriate in the circumstances for an esplanade
reserve or esplanade strip to be required for the
purposes of section 229 and to be set aside or
created under section 108(2)(g).
95. Decision of various classes of resource consent is

also governed by section 105, relevant passages of which
are now quoted.
96. The joint hearings committee imposed conditions

on the various consents which it granted, and recommended
that the Minister of Conservation impose conditions on
the consents for restricted coastal activities. We have
recorded that the parties proposed that the appeals (other
than Mr Paratas) might be disposed of by granting consent
105. Decisions on applications (1) Subject to

subsections (2) and (3), after considering an
application for
(a) A resource consent for a controlled activity,
a consent authority shall grant the consent,
but may impose conditions under section 108
296
for maintenance dredging subject to conditions, and by

amending the conditions imposed and recommended by
the joint hearings committee in respect of other consents.
We consider those proposals later. However for the purpose
of deciding whether the various resource consents should
be granted or refused, it is appropriate that we do so on the
basis that if they are granted, they would be subject to the
respective conditions imposed and recommended by the
joint hearings committee, as they would be modified as
proposed by the parties.
the kaitiaki structure that was proposed by a number of

hapu to the joint hearing committee, that they have mana
whenua in the harbour. Mr Parata was asked by counsel
for the port company about the payment of $10,000 to
himself which would be included in the condition proposed
on his behalf by his counsel. The witness stated that the
payment related to attempts to consult with the Ngatiwai
resource management unit, starting with a Mrs Z Midwood
who had been engaged by the port company to make a
cultural assessment of the proposal. Mr Parata stated that
Mrs Midwood had approached him in the course of making
that assessment and he had arrived at the fee of $10,000
by reference to the time he had spent with Mrs Midwood
and other representatives of the company, at $100 per hour.
He estimated that the costs of the Ngatiwai Trust Board
would have been in excess of $30,000.
GROUNDS FOR H PARATAS APPEAL

97. All the appeals and requests for inquiry have been
settled other than that lodged by Mr Parata24 . Accordingly
we now address the grounds advanced by him or on his
behalf.
101. The other witness called on behalf of Mr Parata was

Ms M Armstrong, who has a diploma of environmental
studies from Northland Polytechnic, and is by trade a
journalist. There was nothing in the evidence given by Mr
Parata or by Ms Armstrong about the alleged inadequacy
of consultation by the port company or those advising the
consent authorities over the proposal.
Consultation
98. In his notice of appeal, Mr Parata claimed that the
joint hearings committee had not taken into account the
principles of the Treaty of Waitangi in that it had failed to
consult adequately. This claim invokes section 8 of the
Resource Management Act:
102. Mr J Smellie, secretary of Northland Port

Corporation, gave evidence of his own involvement in
consultation about the port project with various individuals
and groups within the community. He testified that he had
attended a meeting with members of Takahiwai Marae
Committee and Patuharakeke Ti Iwi in 1993, followed by
correspondence between the company and Patuharakeke;
and that during 1994 and 1995 consultation with iwi groups
continued through the companys chairman and deputy
chairman. The witness continued that following a Planning
Tribunal decision in May 1996 a meeting had been held
with Patuharakeke to discuss an appropriate person for
appointment of a liaison person to facilitate consultation
as had been recommended by the Parliamentary
Commissioner for the Environment. A Mr B Paki had been
appointed, but it turned out that other commitments
prevented him from continuing, and after further discussion
with Patuharakeke, a Ms M Fletcher had been appointed.
Correspondence produced by Mr Smellie showed that the
appointments of Mr Paki and of Ms Fletcher involved
liaison with tangata whenua generally, not only
Patuharakeke, but also with other Maori individuals and
groups having interests.
In achieving the purpose of this Act, all persons

relation to managing the use, development, and
protection of natural and physical resources, shall
take into account the principles of the Treaty of
Waitangi (Te Tiriti o Waitangi).
99. In his address on behalf of Mr Parata his counsel,

Mr Davis, submitted that it was incumbent on the Court to
ensure that consultation with the appellant and with
Ngatikorora and Te Waiariki, and with Ngatiwai, was not
in a manner in which the project was presented to them as
a fait accompli. He acknowledged that it was not the
Courts duty to consult, but contended that the Minister,
the applicant, and the consent authorities had failed to
consult with the applicant, because there had been no
consultation about a change in the location of the dredged
hole (ie the turning basin). Counsel accepted that the
appellant and other representatives of tangata whenua had
had opportunity to comment on the revised location at the
primary hearing.
100. Mr Parata gave evidence that Ngatikorora and Te
Waiariki have traditionally lived on the northern shores of
the Whangarei Harbour; that the whakapapa of Ngatiwai
and that of the Whangarei Harbour are intertwined, so that
anything that affects the water affects Ngatiwai, and
Ngatiwai are kaitiaki of the harbour. In cross-examination
he agreed that Te Waiariki and Ngatikorora were party to
103. Mr Smellies evidence continued that Ms Fletcher

had been active in meeting with hapu and iwi and arranging
meetings for company representatives with iwi
representatives. Following public notification of the
resource consent applications, iwi asked for a longer period
24 The concerns raised by Mr Redwood related to proposed amendments to conditions of consent. He did not challenge the grants of consent.
297
for lodging submissions, and the company had agreed to a

more than doubling of the period prescribed by law. In the
meanwhile, consultation with iwi groups had continued.
The witness produced a report by Ms Fletcher of the
consultation which she had undertaken with tangata
whenua. The report extends over 30 pages of text and has
7 appendixes. It recorded numerous occasions on which
Ngatiwai had been approached, that they had received all
documents and invitations to meet with the company, and
that they had submitted comments on the draft
environmental impact assessment. The report also recorded
that meetings had been held with Ngatiwai Trust Board,
represented by Mr Parata and Ms Anderson25 , in November
1996.
Maori culture and tikanga) who had reviewed the

environmental assessment of the project for the
Parliamentary Commissioner for the Environment. Mr Hill
recounted the appointments of Mr Paki and Ms Fletcher,
that Northland Port Corporation had taken responsibility
for Maori consultation, and the company had assisted the
Councils with a series of hui aimed at ensuring that all
potential Maori submitter groups reached a common
understanding of the proposal. Three hui had been held
(Mr Hill attending two of them), and subsequently a
professional Maori planner, Mr H Matunga, had been
engaged to assist the Maori submitters. Mr Matunga had
conducted a three-day workshop at the Ngatiwai Trust
Board in April 1997, and Mr Hill had attended to provide
information and answer questions. In addition the iwi
liaison officers of the Regional Council and the District
Council had been in regular contact with the submitters
and attended a number of other hui.
104. Mr J M Palmer, an engineer employed by Northland

Port Corporation, deposed to having had meetings with
Mr Parata and Ngatiwai Trust Board since August 1998 to
try and resolve their concerns, and to having engaged Mr
B Mikaere, who had had several meetings with Ngatiwai.
107. Mr Hill also deposed that after the lodging of

appeals, he had advised the appellants of his wish to meet
with them to discuss and explore outstanding matters; and
through the Regional Councils iwi liaison officer he had
attempted to ensure that tangata whenua appellants were
aware the was prepared to meet and discuss issues. On 14
August 1998 he had met Mr Parata, representatives of
Ngatiwai, and Mr Davis, and the meeting had isolated the
issue of kaitiakitanga as the principal underlying issue to
be resolved.
105. Mr Mikaere is a consultant who had been engaged

by the Northland Port Corporation in 1998 and had
reviewed the consultation with Patuharakeke and with
Ngatiwai over the port project. It is not necessary for us to
refer in detail to his evidence about consultation with
Patuharakeke, as that was not in issue. On consultation
with Ngatiwai, he recounted the sequence of events from
January 1992, and acknowledged the potential for conflict
between Ngatiwai and Patuharakeke in respect to their
respective roles and perceived responsibilities towards the
harbour and its environs. He rejected any suggestion that
the issues raised by the appellants had not been considered,
and stated that they had been dealt with in a variety of
ways including incorporation in project planning,
acceptance of mitigation activities, and appropriate consent
conditions. Mr Mikaere gave the opinion that Mr Parata
has a right to assert a kaitiaki role for Ngatiwai, and that
there had been various offers to Ngatiwai of involvement
in monitoring, in restoration work, in membership of the
proposed community liaison group and Te Roopu
Kaumatua. The Northland Port Corporation was keen to
discuss with Ngatiwai other means of giving practical
expression to their kaitiaki role, and Ngatiwai concerns
about degradation of waters are being properly and
respectfully addressed by mitigation and other measures.
The witness gave the opinion the responses and suggested
resolution of the issues raised show the efficacy of the
consultation in identifying tangata whenua concerns.
108. Mr Hill concluded with the opinion that the

consultation undertaken by the Councils and the applicant
was adequate for the purpose of ensuring that all parties
understood what is intended and its likely consequences,
and the views and feelings of parties about it. The process
had enabled the concerns of hapu and iwi to be clearly and
eloquently expressed, and the fact that not all had been
satisfied was not a reason for dismissing the adequacy of
the consultation.
109. The evidence of Messrs Smellie, Palmer, Mikaere
and Hill was not challenged or contradicted by crossexamination or by conflicting evidence. We accept it.
110. The scale of the project, and its site in the Whangarei
Harbour, made it appropriate that the applicant consult with
tangata whenua about it, and that the consent authorities
had their advisers consider the concerns of tangata whenua
about it. On the totality of the evidence which we have
summarised, we find that the applicant identified, and
consulted fully with all tangata whenua of the locality,
including the hapu and iwi with which Mr Parata is
associated. The number of hours of consultation
represented by the amounts of $10, 000 and $30,000
106. Mr D M Hill is resource management consultant who

had been engaged by the consent authorities to advise on
the resource consent applications, having previously led
the team of technical experts (including Dr M Mutu on
25 Presumably the reference to Ms Anderson is an error, and the report should have referred to Ms Armstrong.
298
referred to by Mr Parata would indicate very extensive

consultation. We also find that the consent authorities
performed their duties of having their advisers consider
and report on the interests and concerns of tangata whenua
and how they might be addressed.
116. In his evidence Mr Parata expressed concern that

places of traditional occupation, taonga of Ngatiwai, might
be destroyed by construction of the port, and by increased
shipping and traffic flow to and from the port. In particular,
Mr Parata expressed concern that increased shipping might
destroy middens along the east coast; that there might be a
spill or discharge of chemicals that would destroy kaimoana
and fisheries. He suggested that there should be a baseline
study of the health of the Whangarei Harbour completed
prior to any work being commenced on the port.
111. There was no evidence to support the claim by Mr

Parata that consultation with him and his iwi presented
the project as a fait accompli. There was no evidence that
there had been no consultation about the change in the
location of the turning basin; nor any evidence that the
revised location raised any different issues or concerns. In
addition it was accepted that Mr Parata and other tangata
whenua had opportunity to comment on the revised
location at the primary hearing. In short, there was no
evidence to support Mr Paratas claim that consultation
with tangata whenua had been inadequate, and we do not
accept it. There is no basis in this ground of appeal for
refusing any of the resource consents sought.
117. In cross-examination by counsel for the consent

authorities, Mr Parata agreed that physical impacts on the
harbour would be covered by scientific studies provided
for by condition 10 of coastal permit 2. He explained that
if a midden was to be removed, the kaitiaki structure may
require that it be properly excavated and recorded; and
agreed that the work would require the consent of the
Historic Places Trust, and that the Trust would seek the
views of tangata whenua.
Maori relationship with Whangarei Harbour

118. Ms Armstrong affirmed that the Whangarei Harbour
has always been an important site for local Maori. She
expressed concerns about ballast water discharged from
ships using the port, and decant water from dredging and
reclamation activities, having negative effects on flora and
fauna. Ms Armstrong also advocated a baseline
environmental study of the health of the harbour.
112. Another ground of Mr Paratas appeal was to the

effect that the joint committees decision and
recommendations do not recognise and provide for the
relationship of Maori and their culture and traditions with
the Whangarei Harbour. That claim invokes section 6(e)
of the Act:
In achieving the purpose of this Act, all persons
relation to managing the use, development, and
protection of natural and physical resources, shall
recognise and provide for the following matters
of national importance:
(e) The relationship of Maori and their culture

and traditions with their ancestral lands, water,
119. No expert witness was called on behalf of Mr Parata

to show how the effects referred to by him and Ms
Armstrong might be caused by the construction or
operation of the proposed port.
120. Mr M Poynter, an applied environmental scientist
having a Master of Science with Honours in Marine
Zoology from the University of Auckland, had been
commissioned by Northland Port Corporation to report on
the actual and potential ecological and water quality effects
of construction and operation of the proposed port. He gave
a detailed assessment in evidence and concluded there
would be no significant adverse effects on terrestrial or
freshwater habitats; the reclamation would not cause loss
of a significant percentage of the marine intertidal or
subtidal habitats of the harbour; it would not impact on
breeding grounds which are vital to populations of
threatened birdlife and would have no effect of any
consequence on the availability of feeding habitat for birds
in the harbour; there are good prospects of recovery in
subtidal habitats to be removed by the development ; a
benthic invertebrate community would quickly recolonise
the harbour bed; and the wider sustainability of fisheries
within and beyond the harbour would not be threatened.
113. No party challenged the existence or the importance

of that relationship. The issue was whether the proposal
recognises and provides for the relationship.
114. The respect in which it was claimed that the proposal
fails to do so was that it would be inconsistent with Te
Waiariki/Ngatikorora and/or Ngatiwais
115. unextinguished customary or aboriginal titles to the
foreshore and bed of Whangarei Harbour. However
argument in support of the claim of failure to provide for
the relationship in that respect was not presented by Mr
Paratas counsel. We apprehend that counsel acknowledged
that this Court does not have jurisdiction to decide issues
about the existence, nature and extent of those titles, and
the necessary parties are not before the Court anyway.
Grant of resource consent implies no judgment about
ownership of land or other rights in respect of it. Indeed,
as Mr Parata himself said in evidence, the cultural
significance of land is not dependent upon title.
121. Mr Poynter also deposed that dredging and decanting

of dredged water would not cause any adverse effects or
cause the classification of the water (CA) to be exceeded
beyond the defined mixing zone; stormwater discharge
would be treated so that the CA standard would be met a
299
very short distance from the outfall; increased seepage to

Blacksmiths Creek from land irrigation would be small
and would not significantly affect water quality or shellfish;
it is unlikely that tributyl tin will continue to be used by
international shipping; ballast water discharges and
associated environmental risks are controlled and managed
by the Import Health Standard issued pursuant to the
Biosecurity Act 1993; and the proposed maintenance
dredging would comply with the environmental standards
that currently apply to that activity in the Whangarei
Harbour.
representative group of agencies, organisations and

individuals including the community liaison group and any
kaitiaki group.
127. In addition, Condition 11 would require the consent
holder to pay $50,000 per year for 10 years to be allocated
after consultation with the consent holder and a kaitiaki
group, to enable improvements to the health of the
Whangarei Harbour, and may include re-seeding shellfish
beds, study of New Zealand dotterel nesting, roosting and
feeding areas, maintenance and enhancement of habitat
for New Zealand dotterel and other shorebirds, and should
include concerns of tangata whenua. The Northland Port
Corporation announced that it would agree to the list of
purposes of that fund to be expanded to include the study
and/or mitigation of the effects of the port development
on waahi tapu, taonga and other features of special interest
to tangata whenua.
122. In reply to the evidence of Mr Parata and Ms

Armstrong about a baseline study, Mr Poynter deposed
that there had already been a multi-disciplinary study of
the Whangarei Harbour, the report of which was published
in 1989; and that the Ministry for the Environment had
produced a number of documents dealing with the
environmental performance indicators that need to be
monitored to define the state of the marine environment
and measure environmental change. The witness observed
that it is the Regional Council that is primarily responsible
for defining and implementing state of the environment
research and monitoring in Northland.
128. We have considered the concerns expressed in

evidence by Mr Parata and Ms Armstrong, and the evidence
of Mr Poynter. On the totality of the evidence we do not
accept that construction or operation of the proposed port
would have the effects claimed by Mr Parata and Ms
Armstrong. We accept that any interference with
archaeological sites would need to be authorised under the
Historic Places Act. We find that the decision of the joint
committee, including proposed amendments to conditions
10 and 11 of coastal permit 2, fully recognise and provide
for the relationship of Maori, their culture and traditions,
with the Whangarei Harbour and its shores in the respects
raised by them. There is no basis in this ground of appeal
for refusing any of the resource consents sought.
123. Mr Poynter gave the opinions that a harbour-wide

study of the health of the Whangarei Harbour is not of
particular relevance or use in relation to the port proposal;
that the Northland Port Corporation could reasonably be
expected to assess the effects of its activities, and any
studies would need to be highly focused on measuring those
effects, as required by condition 10 of coastal permit 2.
He also observed that the mitigation fund under condition
11 of that permit could be used for studies of the kind which
Mr Parata may be contemplating, and that the Regional
Council would have to consult with the kaitiaki group
before deciding how that fund is to be applied.
Kaitiakitanga
129. The next ground of Mr Paratas appeal was that the
resource consents would impact on the ability of tangata
whenua to fulfil their role as kaitiaki. That is relevant to
the direction in section 7(a) of the Act to functionaries to
have particular regard to kaitiakitanga. Again there was
no issue about Mr Paratas claim that he and his hapu and
iwi are kaitiaki of the Whangarei Harbour, accepting that
other hapu and iwi may also be kaitiaki of it. Nor was
there any issue about the importance of kaitiakitanga to
the identity and mana of the kaitiaki.
124. In relation to the concern expressed in evidence by

Ms Armstrong about ballast water, Mr Poynter produced
the Import Health Standard under the Biosecurity Act, and
deposed that the Northland Port Corporation actively
supports its implementation and is receptive to measures
to identify and reduce risks defined within the legislation
and government strategies.
125. The evidence of Mr Poynter was not challenged or
contradicted by cross-examination or by conflicting
evidence. We accept it.
130. In his address on behalf of Mr Parata, his counsel

referred to conditions imposed and recommended by the
joint committee which provide for establishment of a
community liaison group, and also allow for a kaitiaki
group. It was contended that as the conditions require the
former but not the latter, the joint committee failed to
discharge its obligations to Mr Parata and his hapu to
recognise and provide for their kaitiakitanga; and that the
joint committee took into account irrelevant considerations
in particular the role of the persons and groups other than
tangata whenua in setting up the community liaison group.
126. Condition 10 of coastal permit 2, referred to by Mr

Parata in cross-examination and by Mr Poynter, would
require the consent holder to pay the Regional Council up
to $25,000 per year towards scientific studies for
monitoring the effects of the development on the water
quality and environment of the Whangarei Harbour. The
studies are to be approved after consultation with the
consent holder, and after taking advice from a
300
131. It was claimed that the role of the community liaison

group is to act in a manner akin to that of kaitiaki in respect
of the port development, in that its stated purpose of having
discussions with the consent holder, reporting to local
authorities about the development, and recommending
studies designed to improve the health of the harbour are
roles that have traditionally been fulfilled by kaitiaki,
including Mr Parata, his hapu and iwi. It was argued that
priority has been given to resident and ratepayer groups
and citizens associations representing communities of
which Mr Parata and his hapu are members, but there had
not been any attempt to recognise and provide for Mr Parata
and his hapus kaitiakitanga. It was submitted that the
community liaison group would in effect be usurping the
role that has traditionally been carried out since time
immemorial by Mr Parata, Te Waiariki, Ngatikorora and
Ngatiwai.
enhancement of habitat for New Zealand dotterel and other

shorebirds, and including concerns of tangata whenua.
Again, these are subjects which may be within the scope
of kaitiakitanga, but may also be properly within the
interests of other members of the community who are not
kaitiaki. The express references to consultation with a
kaitiaki group, and to concerns of tangata whenua, deny
the claim that the joint committee failed to have particular
regard to kaitiakitanga.
136. The offer by Northland Port Corporation that the
list of purposes of that fund to be extended to effects of
the port development on waahi tapu, taonga and other
features of special interest to tangata whenua, was a
substantive and appropriate response to Mr Paratas case
in this respect.
137. We do not accept Mr Paratas allegation that the joint
committees decision and recommendations would impact
adversely on the ability of tangata whenua to fulfil their
role as kaitiaki. To the contrary, we find that it would
enhance their role by providing funds for relevant purposes
of kaitiakitanga. In our judgment there is no basis in this
ground of appeal for refusing any of the resource consents
sought. If this ground calls for any response, the offer by
Northland Port Corporation of a further amendment to
condition 11 is sufficient.
132. By section 7(a) Parliament has directed functionaries

to have particular regard to kaitiakitanga. It has not directed
that that kaitiaki are to be recognised to the exclusion of
other members of the community.
133. The conditions imposed and recommended by the
joint committee, provide for a community liaison group
(in which any member of the community, kaitiaki or not,
Maori or not) would be able to take part. In addition, they
also provide for the possibility of a kaitiaki group (or
kaitiaki structure). We infer that membership of a kaitiaki
group or kaitiaki structure would be confined to people
who are themselves kaitiaki. The joint committee did not
demean kaitiaki, by providing only for them to participate
along with other members of the community. They allowed
for them to take part in that way. They also gave them
special status (if they want it) as kaitiaki as well, by
providing in addition for a kaitiaki group (or kaitiaki
structure).
Hydrodynamics
138. Mr Paratas notice of appeal did not identify directly
any concern about the effects of the proposed port works
on the hydrodynamics of the harbour. Mr Daviss address
on behalf of Mr Parata did not do so either. However, one
of the grounds advanced by counsel in support of Mr
Paratas second motion for adjournment of the hearing of
his appeal was an assertion that a hydrodynamic study that
had been made by the port companys advisers had been
faulty. The fault claimed was that the study having been
made in the northern hemisphere, it had been based on the
water regime of that hemisphere (described as the plughole
effect), rather than the opposite regime of the southern
hemisphere.
134. The subject-matters which, under condition 10 of

coastal permit 2, would be referred to the community
liaison group and any kaitiaki group are scientific studies
for monitoring the effects of the development on the water
quality and environment of the Whangarei Harbour. Effects
on the water quality and environment of the Whangarei
Harbour are of interest to kaitiaki, and within the scope of
katiakitanga. They are also of interest to other members of
the community, Maori and non-Maori. It does not demean
the status of kaitiaki, or the importance of kaitiakitanga,
that other members of the community have opportunity to
contribute to these same matters.
139. Mr Parata gave and called no evidence in support of

that allegation, nor any evidence to give rise to even a
remote suspicion that such an error might have occurred.
Even so, we have considered the point so that Mr Parata
and the public can be assured that it has not been neglected.
This should not be taken as a precedent for expecting the
Court to depart from the normal expectation that a party
who makes an assertion in Court has a responsibility to
present evidence to make it out. Parties to proceedings in
the Environment Court should not expect the Court to give
consideration to bare assertions of which they provide no
evidence. That is particularly valid in respect of assertions
of primary fact, such as the present subject.
135. Recommended Condition 11 of Coastal Permit 2

provides for allocation of funds after consultation with the
consent holder and a kaitiaki group to enable improvements
to the health of the Whangarei Harbour, and may include
re-seeding shellfish beds, study of New Zealand dotterel
nesting, roosting and feeding areas, maintenance and
301
140. Fortunately the Northland Port Corporation assisted

the Court by providing evidence on this topic from a
hydraulic consultant, Dr A G Barnett, who has over 30
years experience in computational hydraulics including
wide experience of harbour modelling studies. He has a
Ph D in civil engineering, followed by three years postdoctoral research in Europe. His evidence about the
hydraulic effects of the proposed port drew on
hydrodynamic study reports by the Danish Hydraulic
Institute (one of the leading specialist hydraulic
engineering consulting groups worldwide) and interpreting
work undertaken under his own direct supervision.
144. Dr Barnetts evidence was not challenged or

contradicted by cross-examination or by conflicting
evidence, and we accept it. It is the only evidence before
the Court on this topic.
145. We do not accept suggestion on behalf of Mr Parata
that the hydrodynamic study on which the port works had
been designed was faulty for having been based on the
Coriolis effect of the northern hemisphere rather than the
opposite regime of the southern hemisphere. On the
contrary, on the evidence before the Court we find that the
study correctly identified the coreolis effect of the southern
hemisphere and was not faulty in the respect suggested. In
our judgment there is no basis in this respect for refusing
any of the resource consents sought.
141. The issue raised on Mr Paratas behalf is a narrow

one, whether the hydraulic study was based on a northern
hemisphere water regime rather than a southern one. No
other party raised any question about the hydraulic effects
of the proposal. Accordingly we do not need to detail much
of the evidence given by Mr Barnett to support his
conclusions. He deposed to the opinions that concentration
of ebb flow currents and eddy formation in the shipping
basin would largely be compensated by the blocking effect
of the proposed extended reclamation; that local accretion
and erosion impacts are predicted to balance without net
supply from surrounding areas; that a gradual trend to a
new stable harbour morphology is expected; that the main
impact outside the immediate area of construction is a small
increase in ebb tide velocities near the oil wharf; and
conditions recommended for the coastal permits
incorporate his recommended monitoring regime.
146. In summary, none of the grounds advanced by Mr

Parata, or on his behalf, has been made out, and his appeal
should be disallowed.
W E R EDWOOD
147. Mr Redwood made submissions to the Court on three
aspects of amendments to the imposed and recommended
conditions of consent which were proposed by the parties
to the appeals.
148. The first submission concerned a condition requiring
monitoring of the bed of the turning basin for reestablishment of marine life. Mr Redwood urged that the
condition be amended to require that monitoring
commence 12 months after dredging is commenced, or on
completion of 50% of the turning basin dredging. He
contended that it is important that the floor of the basin be
re-established as soon as possible, and that this could be
achieved by early monitoring, so that action could be taken
if necessary to counter any adverse effects. Mr Redwood
observed that the harbour floor is an integral and important
chain in the marine life of the harbour, and if it is not reestablished there could be serious environmental effects.
142. Dr Barnett was asked whether the difference in

vortex rotation of water (the plughole effect) between the
northern and southern hemispheres had been allowed for
in the hydraulic model. As Mr Parata was not present in
Court when Dr Barnett gave his evidence, we quote his
answer:
Yes, technically known as coriolis effect so that
rotation occurs in different direction in the southern
and northern hemispheres. This effect is well
understood and I should add although the model
was developed in the northern hemisphere, the
man in charge of the development was an
Australian colleague of mine who was well aware
of catering to the southern hemisphere, and I have
personally input the required specifications to cater
for the fact that this model is in the southern
hemisphere. That applies to the numerical model,
the physical modelling was done in the northern
hemisphere. It is not possible to take the coriolis
effect in a physical model, so the location of a
physical model is irrelevant, its a rather small
effect in any case in harbour work.
149. In reply, Mr MacRae observed that the monitoring

condition is to apply in the event of delayed reestablishment of the benthic community; and submitted
that the time suggested by Mr Redwood would be
inappropriate for that purpose, because re-establishment
would not occur within 12 months. Mr MacRae also
submitted that what Mr Redwood had referred to as a
condition was not strictly a condition under section 108 of
the Act, but the recording of an undertaking given by
Northland Port Corporation, so it is not open to amendment
by the Court in the same way as a condition.
143. Asked whether the model he used has been used

successfully in the southern hemisphere in port
development, Dr Barnett affirmed that many of the initial
applications of the model had been in Australia so it had
certainly been developed with southern hemisphere
conditions very much in mind.
150. Having examined the joint committees decision and

recommendations, we accept Mr MacRaes submissions,
and we are not persuaded to make the amendment sought
by Mr Redwood.
302
151. Mr Redwoods second submission concerned a

proposed amendment to conditions that would apply where
a contaminant escapes otherwise than in conformity with
the consent. The proposed amendment would delete a
subclause requiring the consent-holder to notify the
Regional Council immediately. Instead a new subclause
would require the consent-holder to report the escape to
the Regional Council within one week of occurrence, and
the steps taken to clean up, remedy adverse effects and
prevent recurrence of the escape.
156. Mr Redwood opposed that amendment to the

condition, and urged that either the condition not be
changed (leaving the requirement to be not less than 0.5
hectares), or that the reference to the area be removed from
the condition. He stated that Blacksmiths Creek is very
important, and observed that the area of land that may be
required cannot be determined until the study is complete.
157. Mr MacRae reported that the Northland Port
Corporation had received advice that if a wetland proves
to be desirable, it would not occupy more than 0.5 hectares,
and that the Regional Council had accepted that advice.
Mr Cowper announced that the advice the Regional
Council had received was that it was most unlikely that
the wetland would need more than 0.5 hectares.
152. Mr Redwood opposed that amendment, claiming

that it would negate any environmental responsibility the
Regional Council would have to the Whangarei Harbour;
and would give Northland Port Corporation the absolute
right to pollute as much as they like for seven days before
informing the authority responsible for the environment.
He spoke of his experience that the Northand Regional
Council has been very fair in responding to environmental
mishaps, and has a special hot line for any such
occurrences. He argued that to omit the requirement for
immediate notification would leave a serious and
dangerous situation.
158. We accept Mr Redwoods submission about the

importance of the quality of the water in Blacksmiths
Creek, but the present cause for concern in that regard does
not arise from the Northland Port Corporation proposal
the subject of these proceedings. Further, it would not be
appropriate for the condition to remain unchanged
(requiring an area that may be larger than required). Nor
would it be appropriate for the condition to impose on the
consent holder an unquantified obligation, as it would if
the reference to the area was deleted. Therefore we do not
accept Mr Redwoods submission in that regard.
153. In reply, Mr MacRae submitted that it is not always

practicable or necessary to report immediately an escape
of contaminant occurs, for instance when it is initially
perceived differently. Mr Cowper reported concern by the
Regional Council on how far it could require a consent
holder, under penalty, to notify a contravention of the Act,
and had felt that it would be preferable to rely on the
provisions of section 341(2) of the Act which apply when
an escape occurs.
PLANNING
INSTRUMENTS
159. We have quoted material provisions of section

104(1) of the Act. They require a consent authority to have
regard to various classes of planning instrument. The
instruments that are applicable in this case are the New
Zealand Coastal Policy Statement, the Northland regional
policy statement, the proposed Northland regional plan:
coastal, and the Whangarei district plan.
154. We consider that the responsibility to mitigate and

remedy effects indicated by section 341(2) is an appropriate
basis for the condition, and we have not been persuaded
that the amendment sought by Mr Redwood ought to be
made.
160. Each of these is a substantial and important

document. However we have disposed of the issues in
contention. We can therefore address the planning
instruments more briefly than if any issues turned on their
contents.
155. The subject of Mr Redwoods third submission was

a condition requiring a study of the Blacksmiths Creek
catchment to identify measures for improving the quality
of water in the creek. The condition continues that if the
study concludes that a wetland is a suitable and feasible
option, the consent-holder is to make available an area to
be agreed between it and the Regional Council but not
less than 0.5 hectares of its land for wetland treatment of
water flows. The parties to the appeal proposed that the
condition be amended so that it would require
approximately 0.5 hectares instead of not less than 0.5
hectares.
New Zealand Coastal Policy Statement

161. The New Zealand Coastal Policy Statement26 states
important principles derived particularly from the direction
in section 6(a) of the Act for preservation of the natural
character of the coastal environment and its protection from
inappropriate use and development. The Statement
recognises that some activities which can only be located
26 New Zealand Gazette No 42, 5 May 1994, page 1563.
303
on the coast are important to the social and economic

wellbeing of people and communities 27 ; and that the
protection of the values of the coastal community need
not preclude appropriate use and development in
appropriate places 28 . The appropriateness of particular
development in a particular place on the coast is guided
by provisions of subordinate instruments.
Transitional regional plan

165. The transitional regional plan comprises what were
formerly a general authorisation under the Water and Soil
Conservation Act 1967, a bylaw for protection of water
courses under the Soil Conservation and Rivers Control
Act 1941, and a notice relating to clearance of vegetation
and disturbance of land surfaces under the Soil
Conservation and Rivers Control Amendment Act 1959.
(The latter expired on 1 December 1995.) Under the plan
(by application of 39 of the Resource Management Act
1991) resource consent is required for stormwater
collection and irrigation; for the use of coastal water; for
discharges to water; for discharges to land and discharges
to air; the drainage system is a discretionary activity.
162. Mr Davies observed that by its function a port is an

appropriate use and development in the coastal
environment, as it cannot be located anywhere else. Mr
Hill gave the opinion that granting the consents sought
would not be contrary to the objectives and policies of the
New Zealand Coastal Policy Statement provided the effects
that cannot be avoided are appropriately remedied and
mitigated. He considered that the relevant policies had been
provided for or given appropriate attention in the process,
decisions and subsequent condition amendments. We
accept those opinions.
Proposed Northland regional plan: coastal

166. Decisions have been given on submissions in respect
of the Proposed Regional Plan: Coastal, references have
been lodged with the Environment Court, but have not yet
been decided.
Northland regional policy statement

163. The proposed Northland regional policy statement
contains general directions, objectives and policies. They
include involvement of tangata whenua in management of
natural and physical resources of the region; minimisation
of contaminants entering coastal waters; maintenance of
the biodiversity of the region; protection of the lifesupporting capacity of ecosystems through avoiding,
remedying and mitigating adverse effects; and protection
of significant indigenous vegetation and significant habitats
of indigenous fauna. Mr Hill gave the opinion that granting
the consents would not be contrary to those objectives,
provided that those effects that cannot be avoided are
appropriately remedied or mitigated.
167. By it, part29 of the Whangarei Harbour affected by

the Northland Port Corporations proposals would be
included in the Marine 5 (Port Facilities) Management
Area, and part would be included in the Marine 2
(Conservation) Management Area. The proposed new
water classification for the Whangarei Harbour is CA, with
a mixing zone for an area of discharges just off Marsden
Point itself.
168. The evidence of Mr Davies and Mr Hill identified
the relevant provisions of the proposed plan. Mr Hill gave
the opinion that few of the objectives provide a definite
yardstick, apart from an objective of protection of
significant habitats of indigenous fauna. Otherwise the
objectives point to matters to be considered in making
judgments of activities to be allowed. He concluded the
proposal is not contrary to the objectives provided its
adverse effects are mitigated, and those effects that are
unavoidable are not significant in the sustainable
management of the resource.
164. The witness also referred to provisions of the

regional policy statement about coastal management,
preservation of natural character, protection of traditional
fisheries and other resources, allocation of space in the
coastal marine area, and public access. He gave the opinion
that granting the consents would not be contrary to those
objectives provided the effects that cannot be avoided are
appropriately remedied and mitigated. He considered that
the relevant policies had been provided for or given
appropriate attention in the process, decisions and
subsequent condition amendments. He also observed that
the proposed development is consistent with particular
policies about allocation of space. That evidence was not
challenged, and we accept those opinions.
169. Mr Hill and Mr Davies reviewed the policies of the

proposed plan. The former identified provisions that
indicate that port development and operation are
contemplated, and concluded that on the proposed
conditions the proposal is consistent with the objectives
and policies of the proposed plan. Mr Davies came to a
27 NZ Coastal Policy Statement, Principle 1.

28 Ibid, Principle 2.
29 The Marine 5 area is a band about 30 metres each side of the existing general cargo wharf, with 60 metres on the harbour side of the berthing jetty,
in effect recognising the existing situation.
304
similar opinion. There was no evidence to the contrary

and we accept their opinions.
and references. It is the latest statement of policy by the

Council, prepared under the current legislation.
Transitional coastal plan
177. By the proposed plan, the land would be zoned

Business 4. The port would qualify as a permitted activity,
and the zone appears intended to facilitate it.
170. The transitional regional coastal plan comprises

provisions of the Whangarei district scheme under the
Town and Country Planning Act 1977 applicable to the
coastal marine area; the final classification of the
Whangarei Harbour under the Water and Soil Conservation
Act 1967; a change pursuant to a direction by the Minister
of Conservation classifying restricted coastal activities; and
the three instruments which comprise the transitional
regional plan already mentioned. The relevant district
scheme provision is the former designation for Harbour
Works. The water classification for the relevant part of the
Whangarei Harbour is SC. Mr Hill gave the opinion that
this has no significance for the proposal as none of the
development area falls within any identified classified
marine zone. The classification of restricted coastal
activities has been superseded by the notification of the
proposed regional plan: coastal.
Effects on the environment

178. In accordance with section 104(1)(a) of the Act we
also have regard to any actual and potential effects on the
environment of allowing the proposed activity. We do so
bearing in mind the extended definition of the term
environment in section 2(1):
(1) In this Act, unless the context otherwise
requires, Environment includes

are affected by those matters:
Transitional Whangarei district plan

171. The operative district plan was prepared under the
Town and Country Planning Act 1977 and publicly notified
in 1984. It continues in the transition pending completion
of the processing of the proposed district plan under the
current regime.
179. The most significant effect on the environment of

allowing the development would be the change to the shape
and tidal flow in a relevant small part of the Whangarei
Harbour as a result of the dredging and reclamation. Other
major effects would be the visual effects of the structures
and buildings associated with the port; and changes in the
intensity, pattern and flow of traffic in the Marsden Point
area. There would be social, economic and cultural effects
on people who will live and work in the locality, and those
who have interests there (including tangata whenua). For
some the economic effects would be positive, for others
the social and cultural effects would be perceived as
negative.
172. A deemed coastal permit (previously a designation)

for harbour works applies to the area of foreshore and
harbour bed the subject of the application, except for about
80 square metres to be occupied as part of the proposed
barge terminal.
173. The land above mean high water springs is
designated for harbour works, some having an underlying
zoning of Marsden Point Special Industrial, and some
Industrial D.
174. The district plan and its predecessor has anticipated
and provided for the proposed port since 1967, and the
provisions were brought up to date by change in 1992.
The objectives and policies have been designed to allow
for it, as has the Marsden Point Special Industrial Zone.
180. Mr Hill gave the opinion that certain localised

adverse environmental effects of the proposal, particularly
the reclamation and dredging, cannot be avoided and will
be significant in extent. In particular we find from Dr
Barnetts evidence that the configuration of the reclamation
and turning basin have been designed to minimise adverse
effects on tidal flow.
175. Mr Davies deposed that the land side component of

the development has been designed to satisfy the relevant
provisions of the district plan, which were most recently
reviewed in 1992.
181. Mr Davies reminded us that the proposal for a port

at this locality has been public for many years, and has
been included in successive planning instruments.
182. Conditions of consent have been devised to avoid,
remedy and mitigate adverse effects of the proposal. Those
conditions (as proposed to be amended) evidently satisfied
all who would have taken part in the Courts appeal hearing
and inquiry save Mr Parata and Mr Redwood. We have
Proposed Whangarei district plan

176. The proposed district plan was publicly notified in
September 1998, and its contents are still subject to
amendment under the statutory processes of submissions
305
of those matters over which it has reserved control:

a consent authority may grant or refuse the consent,
and (if granted) may impose conditions under
section 108:
Provided that, where the consent authority has
restricted the exercise of its discretion, consent
may only be refused or conditions may only be
imposed in respect of those matters specified in
the plan or proposed plan to which the consent
authority has restricted the exercise of its
discretion:
activity or a discretionary activity or a restricted
coastal activity), a consent authority may grant
or refuse the consent, and (if granted) may impose
conditions under section 108.
already given our findings on the matters raised by Mr

Parata and Mr Redwood.
CONSIDERATION
183. By the proposed regional plan: coastal, port
development, the proposed piles and wharf structures, the
storage areas, the stormwater and bark separating system,
the barge berths and water-taxi landing, and the earthworks
disturbance of foreshore and harbour bed and other works
are noncomplying activities in the Marine 2 area. Dredging
the turning basin and the reclamation are also
noncomplying activities.
184.
Granting consent to noncomplying activities is

controlled by section 105(2A)30 :
187. We have considered the conditions imposed and

recommended by the joint hearings committee and the
various amendments proposed by the parties to the appeals
and inquiries before the Court. Earlier in this decision we
addressed the issues raised about those conditions by Mr
Parata and Mr Redwood. The other amendments to the
conditions made and recommended by the joint hearings
committee were not the subject of any contention.
Accordingly it is not necessary for us to address them in
detail. It suffices that we find that, with those amendments,
the conditions are appropriate to avoid, remedy and
mitigate the adverse effects on the environment (in the
sense given to that term by section 2(1) of the Act) of the
proposal. Therefore it is appropriate that we consider
whether the resource consent applications should be
granted or refused on the basis that if granted, those
conditions (as proposed to be amended) would be imposed.
(2A) Notwithstanding any decision made under

section 94(2)(a), a consent authority must not grant
a resource consent for a non-complying activity
unless it is satisfied that (a) The adverse effects on the environment (other
than any effect to which section 104 (6) applies)
will be minor; or
(b) The application is for an activity which will
not be contrary to the objectives and policies of,
(i) Where there is only a relevant plan, the relevant
plan; or
(ii) Where there is only a relevant proposed plan,
the relevant proposed plan; or
(iii) Where there is a relevant plan and a relevant
proposed plan, either the relevant plan or the
relevant proposed plan.
185. We accept the opinion expressed tentatively by Mr

Davies that those elements of the proposal are not contrary
to the objectives and policies of the various planning
instruments. Mr Hill expressed a similar opinion. We are
so satisfied and find that the resource consent applications
can be considered even though those elements of the
proposal are noncomplying activities.
188. We have had regard to the effects on the environment

of allowing the activities, and to the relevant provisions of
the applicable planning instruments. We find that the
adverse effects on the environment would be no different
in nature, or greater in extent, than would be inevitable in
the development of a new port at Marsden Point designed
to serve the purpose of the Resource Management Act,
and avoid remedy or mitigate adverse effects to the extent
practicable. Details of the location of individual elements
in the proposal do not conform with the proposed regional
plan: coastal. However the proposal is consistent with the
objectives and policies of that proposed plan, as it is with
the other planning instruments.
186. That condition being met, the Court has to make a

discretionary judgment whether to grant or refuse the
resource consents, and whether to impose conditions, as
provided by section 105(1) of the Act (except that in respect
of the restricted coastal activities the decisions have to be
made by the Minister of Conservation). Section 105(1)31
provides:
189. It is well established that the judgment whether

resource consent is to be granted or refused is to be made
for the purpose of the Act, namely, to promote sustainable
management of natural and physical resources. The
provisions of sections 6 to 8 of the Act are accessory to
that purpose.
(1) Subject to subsections (2) and (3), after

considering an application for
(a) A resource consent for a controlled activity, a
consent authority shall grant the consent, but may
impose conditions under section 108 in respect
30 Subsection (2A) was inserted by section 22(3) of the Resource Management Amendment Act 1997.
31 Section 105(1) as substituted by section 55(1) of the Resource Management Amendment Act 1993 and further amended by section 22(1) of the
Resource Management Amendment Act 1997.
306
190. Section 6(a) directs functionaries to recognise and

provide for the preservation of the natural character of the
coastal environment (including the coastal marine area),
and the protection of them from inappropriate
development. The proposed port would change the natural
character of part of the harbour where the natural character
of the shore has been significantly modified by existing
port works. Mr Davies observed that a seaport by its
function is an appropriate development in the coastal
environment, as it cannot be located elsewhere. We accept
his opinion that the duty cast by section 6(a) does not
preclude granting consent to this proposal.
katiaki group is a particular response to kaitiakitanga in

respect of the proposed port and more generally in respect
of the Whangarei Harbour.
196. Section 7(b) requires particular regard to the efficient
use and development of natural and physical resources.
Mr Davies deposed that efficient is a very appropriate
description of the intended construction and operation of
the proposed port. That evidence was not challenged or
contradicted, and we accept it.
197. Section 7(c) requires particular regard to the
maintenance and enhancement of amenity values. In that
regard the evidence of Mr S K Brown, landscape architect,
was that the visual effects from some local viewpoints
would be detrimental, but would be substantially mitigated
and consistent with the general scheme of the Act and the
instruments under it. Mr Browns evidence was not
challenged or contradicted, and we accept it.
191. Section 6(b) requires recognition and provision for

protection of outstanding natural features and landscape
from inappropriate use and development. The Whangarei
Harbour is generally an attractive natural feature. However
the development of the region makes the harbour an
appropriate place for a port. The present proposal would
not jeopardise any outstanding natural feature or landscape.
198. Section 7(d) refers to intrinsic values of ecosystems.

We have already referred to the evidence given by Mr
Poynter in that respect, from which we find that the
proposal would not significantly interfere with intrinsic
values of ecosystems.
192. Section 6(c) relates to protection of significant

habitats of indigenous fauna. The proposal would not
jeopardise any such habitats.
193. Section 6(d) requires recognition and provision for
maintenance and enhancement of public access to and
along the coastal marine area. For safety and security
reasons, public access cannot be allowed to the port
operations area. However it is proposed that public access
be provided along the western embankment of the
reclamation, and improved access between there and
Blacksmiths Creek. In addition public access to the east
of the reclamation is to be continued. We find that in general
the proposal recognises and provides adequately for public
access to the coastal marine area.
199. Section 8 requires functionaries to take into account

the principles of the Treaty of Waitangi. We have addressed
that in considering Mr Paratas case. We are not aware of
any other issue in that regard.
200. Having considered the relevant directions in sections
6 to 8 of the Act, we have now to consider whether the purpose
of the Act explained in section 5 would be better served by
grant of the resource consents, subject to compliance with
the amended conditions, or by refusing them.
194. Section 6(e) directs recognition and provision for

the relationship of Maori and their culture and traditions
with their ancestral lands, water, sites, waahi tapu and other
taonga. That relationship is to be recognised and provided
for in particular by the provision for a kaitaiki group to
which we referred to in detail earlier in this decision in
considering Mr Paratas appeal. It is also addressed by the
proposed amendments to Conditions 10 and 11. Although
Mr Parata sought to represent the interests of his whanau,
hapu and iwi, none of those groups took part in the
proceedings. The tangata whenua of the southern shore of
the harbour, who were appellants, joined with the other
parties in asking the Court to amend the conditions made
and recommended by the joint hearings committee, and
announced that those amendments would satisfy their
concerns. Accordingly we are satisfied that the amended
proposal appropriately recognises and provides for the
relationship referred to in section 6(e).
201. The proposed port would represent managing the

natural and physical resources in a way which would enable
people and the community to provide for their economic
wellbeing. The proposal has been designed, and the
amended conditions are calculated, to avoid, remedy or
minimise any adverse effects on social or cultural wellbeing
and on the environment. It would not interfere with
sustaining the potential of natural and physical resources
to meet the needs of future generations. Any port of the
scale needed would unavoidably involve loss of open
public harbour. The configuration of the reclamation and
turning basin in this proposal has been designed to
minimise the adverse effects. Similarly they have been
designed to minimise the inevitable visual effects. It is our
judgment that the purpose of the Act would be better served
by granting the consents sought, and by imposition of the
amended conditions, than by refusing them.
Determination and recommendations
195. Section 7(a) directs that particular regard is to be

had to kaitiakitanga. We have also addressed that issue in
the context of Mr Paratas appeal. The provision for a
202. For the foregoing reasons the Court makes the

following determinations:
307
a)
b)
To the extent that the resource consents sought are

for coastal permits which are restricted coastal
activities (that is, for reclamation and dredging of
harbour bed), it reports that it has no
recommendation to make to the Minister of
Conservation adverse to his granting coastal permits
on the terms, and subject to the conditions, attached
to this decision.
c)
That the appeals are allowed to that extent only, and

in all other respects are disallowed.
d)
That the question of costs on Appeal RMA 42/98 is

reserved.
DATED at AUCKLAND this day of May, 1999.
To the extent that the resource consents sought are

for restricted coastal activities which are not
restricted coastal activities, and to the extent that
other resource consents are sought, it grants them
on the terms and subject to compliance with the
conditions attached to this decision.
DFG Sheppard
Environment Judge
308
309
YANNER V EATON [1999] HCA 53 (7 OCTOBER 1999)

Last Updated: 7 October 1999
HIGH COURT OF AUSTRALIA
GLEESON CJ,
GAUDRON, McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ
MURRANDOO BULANYI MUNGABAYI YANNER APPELLANT
AND
GRAEME JOHN EATON RESPONDENT
Yanner v Eaton [1999] HCA 53
7 October 1999
B52/1998
310
Attorney-General of the State of South Australia (instructed

by Crown Solicitor for the State of South Australia)
ORDER
1.
Appeal allowed.
2.
Set aside the orders of the Court of Appeal of the

Supreme Court of Queensland made on 27 February
1998; and in lieu thereof, order that the order nisi
of Williams J dated 28 November 1996 be
discharged.
3.
Order that each of the Attorney-General of the

Commonwealth, the Attorney-General of the State
of Western Australia, the Attorney-General of the
State of South Australia and the Attorney-General
of the Northern Territory pay to the appellant the
additional costs incurred by him by reason of the
intervention of that Attorney-General, such
additional costs to be taxed.
4.
The question of costs in respect of the proceedings

in this Court and in the Court of Appeal of the
Supreme Court of Queensland be reserved.
5.
The appellant is to have leave to file and serve,

within 14 days of the date of this order, written
submissions on the reserved question of costs.
6.
R J Meadows QC, Solicitor-General for the State of

Western Australia with P D Quinlan intervening on behalf
of the Attorney-General of the State of Western Australia
(instructed by Crown Solicitor for the State of Western
Australia)
W Sofronoff QC with G C Newton intervening on behalf
of the Cape York Land Council (Aboriginal Corporation)
(instructed by Ebsworth & Ebsworth)
J Basten QC intervening on behalf of Walden & Ors on
behalf of the Lardil, Kaiadilt, Yangkaal and Gangalidda
Peoples and intervening on behalf of the Northern Land
Council (instructed by Andrew Chalk Associates and
B Midena, Northern Land Council)
M L Barker QC with W J Hammond intervening on behalf
of Ben Ward & Ors on behalf of the Miriuwung and
Gajerrong People (instructed by the Aboriginal Legal
Service of Western Australia (Inc))
Notice: This copy of the Courts Reasons for Judgment is
subject to formal revision prior to publication in the
Commonwealth Law Reports.
The respondent is to have leave to file and serve,

within a further 14 days, written submissions on the
reserved question of costs.
CATCHWORDS
Yanner v Eaton
On appeal from the Supreme Court of Queensland

Aboriginals - Native title - Right to hunt wild animals Regulation by State fauna protection legislation - Whether
inconsistent with continued existence of right - Whether
right extinguished prior to preservation by Native Title Act
1993 (Cth).
2.
Representation:
D F Jackson QC with A Vasta QC for the appellant
(instructed by Hogan & Besley)
G J Gibson QC with G J Koppenol and A M Preston for
the respondent (instructed by Crown Solicitor for
Queensland)
Constitutional law - Inconsistency between

Commonwealth and State laws - Regulation of exercise of
native title right by State fauna protection legislation Whether inconsistent with Native Title Act 1993 (Cth) Operation of Racial Discrimination Act 1975 (Cth).
Interveners:
Animals - Wild animals - Property vested in the Crown Whether constitutes absolute or full beneficial ownership.
D M J Bennett QC, Solicitor-General for the

Commonwealth with H C Burmester QC and K L Eastman
intervening on behalf of the Attorney-General of the
Commonwealth (instructed by Australian Government
Solicitor)
Property - Nature of proprietary interests - Relationship

between owner and subject matter.
Statutes - Construction - Meaning of Crown - Operation
of State fauna protection legislation vesting property in
the Crown.
T I Pauling QC, Solicitor-General for the Northern

Territory with A D Rorrison intervening on behalf of the
Attorney-General of the Northern Territory (instructed by
the Solicitor for the Northern Territory)
Crown - Immunity - Queensland - Extent of immunity

conferred by State fauna protection legislation.
Words and phrases - property - Crown - vesting wild by nature.
B M Selway QC, Solicitor-General for the State of South

Australia with R P Smith intervening on behalf of the
311
The Constitution, s 109.

Fauna Conservation Act 1974 (Q), ss 7, 24, 24A, 25, 27,
30, 54, 60, 67, 71(2), 83(3), 84.
(b)
Native Title Act 1993 (Cth), ss 211, 223.
(a)
(b)
(c)
(d)
(e)
(3)
1.
GLEESON CJ, GAUDRON, KIRBY AND
HAYNE JJ. The appellant is a member of the Gunnamulla
clan of the Gangalidda tribefn0" [1] of Aboriginal
Australians. Between 31 October and 1 December 1994
he used a traditional form of harpoon to catch two juvenile
estuarine crocodiles in Cliffdale Creek in the Gulf of
Carpentaria area of Queensland. He and other members of
his clan ate some of the crocodile meat; he froze the rest
of the meat and the skins of the crocodiles and kept them
at his home.
domestic or non-commercial communal

needs; and
in exercise or enjoyment of their native title
Each of the following is a separate class of
activity:
hunting;
fishing;
gathering;
a cultural or spiritual activity;
any other kind of activity prescribed for the
purpose of this paragraph.
4.
The Magistrate found that the appellants clan have
a connection with the area of land from which the
crocodiles were taken and that this connection had existed
before the common law came into being in the colony of
Queensland in 1823 and ... thereafter continued. He further
found that it was a traditional custom of the clan to hunt
juvenile crocodiles for food and that the evidence suggested
that the taking of juvenile rather than adult crocodiles had
tribal totemic significance and [was based on] spiritual
belief. The Magistrate found the appellant not guilty and
dismissed the charge.
2.
In 1994, the Fauna Conservation Act 1974 (Q) (the
Fauna Act) provided, by s 54(1)(a), that:
A person shall not take, keep or attempt to take
or keep fauna of any kind unless he is the holder
of a licence, permit, certificate or other authority
granted and issued under this Act.
5.
(The Fauna Act was repealed and replaced by the

Nature Conservation Act 1992 (Q) which came
into operation on 19 December 1994. It was,
however, common ground, and clearly correct, that
these proceedings fell to be decided in accordance
with the Fauna Act.)
In effect, then, the Magistrate found that:

(a) the exercise or enjoyment of native title rights
and interests in relation to the land or waters
where the crocodiles were taken consisted of
or included hunting or fishing[2];
(b) a law of the State (the Fauna Act) prohibited
or restricted persons from carrying on those
classes of activity other than in accordance
with a licence, permit or other instrument
granted or issued to them under the Fauna
Act 1886[3];
(c) the Fauna Act was not one that conferred
rights or interests only on, or for the benefit
of, Aboriginal peoples or Torres Strait
Islanders[4]; and accordingly
(d) the Fauna Act did not prohibit or restrict the
native title holders from carrying on those
classes of activity (hunting and fishing) or
from gaining access to the land or waters for
the purpose of satisfying their personal,
domestic or non-commercial communal needs
and in exercise or enjoyment of their native
title rights and interests[5].
3.
The appellant was not the holder of any licence,
permit, certificate or other authority granted and issued
under the Fauna Act. He was charged in the Magistrates
Court of Queensland with one count of taking fauna
contrary to the Fauna Act. The appellant contended, and
the Magistrate accepted, that s 211 of the Native Title Act
1993 (Cth) (the Native Title Act) applied. That section
provided at the relevant time:
(1) Subsection (2) applies if:
and interests in relation to land or waters
consists of or includes carrying on a particular
class of activity (defined in subsection (3));
and
(b) a law of the Commonwealth, a State or a
Territory prohibits or restricts persons from
carrying on the class of activity other than in
accordance with a licence, permit or other
instrument granted or issued to them under
the law; and
(c) the law is not one that confers rights or
interests only on, or for the benefit of,
Aboriginal peoples or Torres Strait Islanders.
(2) If this subsection applies, the law does not
prohibit or restrict the native title holders from
carrying on the class of activity, or from gaining
access to the land or waters for the purpose of
carrying on the class of activity, where they do so:
6.
The informant (a police officer) applied for an order
to review the Magistrates decision [6] and the order nisi
for review was made returnable before the Court of Appeal
of Queensland. The Court of Appeal, by majority, made
the order nisi absolute, set aside the order of the Magistrates
Court dismissing the complaint, and remitted the
proceedings to the Magistrates Court for the matter to
proceed according to law[7]. By special leave the
appellant appeals to this Court.
7.
The appellant contended that the Magistrate was
right to dismiss the charge because in taking the crocodiles
the appellant was exercising or enjoying his native title
312
rights and interests; these rights and interests were

preserved by the Native Title Act. It followed (so the
argument went) that the Fauna Act, to the extent to which
it prohibited or restricted the taking of crocodiles in the
exercise of those rights and interests for the purpose of
satisfying personal, domestic or non-commercial
communal needs, was invalidated by s 109 of the
Constitution.
were defined respectively to mean a bird or mammal, wild

by nature whether native to a State or Territory of the
Commonwealth, migratory or introduced, in captivity, bred
in captivity or tamed[12]. Estuarine crocodiles were
declared by Order in Council made on 29 August 1974 to
be fauna for the purposes of the Act.
12. The Fauna Act divided fauna into four classes:
permanently protected fauna, protected fauna, nonprotected fauna and prohibited fauna [13]. Fauna other
than permanently protected fauna, non-protected fauna and
prohibited fauna was defined as protected fauna for the
purposes of the Act[14]. Subject to declaration of an open
season, protected fauna could lawfully be taken or kept
only in certain limited circumstances: if it was orphaned,
injured, sick or emaciated [15]; or if it was causing or
likely to cause damage or injury[16]. In addition, a snake
or estuarine crocodile might be killed if it had caused, was
causing or was likely to cause injury to a person[17]. Nonprotected fauna might be taken at any time[18]. An open
season might be declared in respect of protected fauna and
in that case permits could be issued permitting the taking
of that fauna [19]. Additionally, the Director of National
Parks and Wildlife was empowered to issue permits to
fauna dealers to buy, keep, sell or otherwise dispose of
protected fauna during a close season[20].
8.
The respondent contended that any native title right
or interest to hunt crocodiles in Queensland which the
appellant may have enjoyed had been extinguished, prior
to the commencement of the Native Title Act, by the
enactment of s 7(1) of the Fauna Act which provided that:
All fauna, save fauna taken or kept otherwise
than in contravention of this Act during an open
season with respect to that fauna, is the property
of the Crown and under the control of the Fauna
Authority.
It followed, so the respondent submitted, that the Native

Title Act provisions preserving native title rights and
interests to hunt and fish had no relevant operation in this
case, because the native title rights and interests upon which
the appellant relied had been extinguished before the Native
Title Act was enacted.
13. The terms of s 54(1)(a) prohibiting the taking or

keeping of fauna without a licence are set out above. The
apparent generality of that prohibition must be understood
in the light of not only its reference to the holder of a
licence, permit, certificate or other authority granted and
issued under the Fauna Act, but also the further exemptions
created by s 54(1)(b). That paragraph exempted (among
other things) the keeping of protected fauna that was taken
otherwise than in contravention of the Act during an open
season[21] and the taking of fauna at a time and place
when and where it is non-protected fauna [22]. The
penalty for contravening s 54(1)(a) was a fine or
imprisonment (or both) and the offender was liable in
any case to an additional penalty not exceeding twice the
royalty on each fauna in respect of which the offence is
committed [23].
9.
Earlier forms of Queensland fauna legislation had
provided expressly that those Acts (with some presently
irrelevant exceptions) did not apply to [a]ny aboriginal
killing any native animal for his own foodfn7"[8]. Unlike
these earlier Acts, however, the Fauna Act did not deal
expressly with Aboriginals taking native animals or birds
for food. That being so, much of the argument in this Court
concerned what effect the Fauna Acts vesting of property
in some fauna in the Crown had on the native title rights
and interests asserted by the appellant.
The Fauna Act
10. The meaning of s 7(1) can be identified only by
construing it in the light of the whole Fauna Act. It is
necessary, therefore, to refer to a number of other
provisions, but before doing so it is as well to emphasise
that s 7(1) did not make all fauna the property of the
Crown and under the control of the Fauna Authority[9].
What the sub-section described as fauna taken or kept
otherwise than in contravention of this Act during an open
season with respect to that fauna was excepted.
14. The reference to royalty is significant. Section 67

of the Fauna Act provided:
(1) Subject to subsection (4), royalty at the rates
prescribed shall be payable to the Crown on
prescribed fauna.
(2) Notwithstanding this Act or any other Act or
law, payment of royalty on fauna pursuant
to this Act does not transfer property in that
fauna from the Crown.
(3) Rates of royalty may vary in respect of
different species of fauna.
(4) The regulations may exempt from the
payment of royalty species of fauna specified
therein in cases where that fauna is taken
otherwise than in contravention of this Act.
11. Fauna was defined by the Fauna Act (in effect) as

any bird or mammal indigenous to Australia or declared
by Order in Council to be fauna, and any animal or member
of a species of animal declared by Order in Council to be
fauna[10]. Fauna included the young, the egg, the
carcass, skin or nest of the animal or member of species
but did not include any processed products except those
declared by Order in Council[11]. Bird and mammal
313
about property is that it does not really exist: it is mere

illusion. Considering whether, or to what extent, there
can be property in knowledge or information or property
in human tissue may illustrate some of the difficulties in
deciding what is meant by property in a subject
matter[29]. So too, identifying the apparent circularity
of reasoning from the availability of specific performance
in protection of property rights in a chattel to the conclusion
that the rights protected are proprietary may illustrate some
of the limits to the use of property as an analytical
toolfn29"[30]. No doubt the examples could be multiplied.
Fauna protection legislation in Queensland had

contained generally similar royalty provisions for many
years [24]. They were introduced in 1924 to take the
benefit of what was seen at the time to be a valuable and
developing fur trade[25].
15. The obligation to pay royalty under the Fauna Act
was supported by several other provisions of that Act
including s 69 which made it an offence to fail to pay
royalty, s 70 which provided for recovery by summary
proceeding under the Justices Act (Q) or by action as for
a debt due to the Crown, and s 71 which permitted a fauna
officer to detain fauna in respect of which royalty payable
was not paid. Section 71(2) provided that:
18. Nevertheless, as Professor Gray also saysfn30"[31],

An extensive frame of reference is created by the notion
that property consists primarily in control over access.
Much of our false thinking about property stems from the
residual perception that property is itself a thing or
resource rather than a legally endorsed concentration of
power over things and resources[32].
Fauna so seized and detained shall, without

further or other authority, be forfeited to Her
Majesty, unless all royalty payable thereon is paid
within one month of its seizure and detention.
19. Property is a term that can be, and is, applied to

many different kinds of relationship with a subject matter.
It is not a monolithic notion of standard content and
invariable intensity[33]. That is why, in the context of a
testators will, property has been said to be the most
comprehensive of all the terms which can be used,
inasmuch as it is indicative and descriptive of every
possible interest which the party can have[34].
Similar provision was made by s 83 in respect of fauna,

appliances or other things seized under the Act.
Section 83(3) provided that:
Notwithstanding this Act, the Minister may order
that any fauna, appliance or other thing seized
under this Act be forfeited to Her Majesty though
proceedings have not been taken for, nor any
person convicted of, an offence against this Act
in respect thereof.
20. Because property is a comprehensive term it can

be used to describe all or any of very many different kinds
of relationship between a person and a subject matter. To
say that person A has property in item B invites the question
what is the interest that A has in B? The statement that A
has property in B will usually provoke further questions
of classification. Is the interest real or personal? Is the item
tangible or intangible? Is the interest legal or equitable?
For present purposes, however, the important question is
what interest in fauna was vested in the Crown when the
Fauna Act provided that some fauna was the property of
the Crown and under the control of the Fauna Authority?
No doubt ss 71(2) and 83(3) must be read in the light of

s 84 which provided that:
The provisions of this Act with respect to the
seizure, detention or forfeiture of fauna shall not
prejudice or affect in any way the rights of the
Crown with respect to fauna that by virtue of
section 7 is the property of the Crown, and those
rights may be exercised at any time.
16. What, then, is the meaning to be given to s 7(1) and

its provision that some fauna is the property of the Crown
and under the control of the Fauna Authority? Did it, as
the respondent submitted, give rights to the Crown in
respect of fauna that were inconsistent with the rights and
interests upon which the appellant relied?
21. The respondents submission (which the

Commonwealth supported) was that s 7(1) of the Fauna
Act gave full beneficial, or absolute, ownership of the fauna
to the Crown. In part this submission was founded on the
dictum noted earlier, that property is the most
comprehensive of all the terms which can be used[35].
But the very fact that the word is so comprehensive presents
the problem, not the answer to it. Property comprehends
a wide variety of different forms of interests; its use in the
Act does not, without more, signify what form of interest
is created.
Property
17. The word property is often used to refer to
something that belongs to another. But in the Fauna Act,
as elsewhere in the law, property does not refer to a thing;
it is a description of a legal relationship with a thing[26].
It refers to a degree of power that is recognised in law as
power permissibly exercised over the thing. The concept
of property may be elusive. Usually it is treated as a
bundle of rights[27]. But even this may have its limits
as an analytical tool or accurate description, and it may
be, as Professor Gray has said[28], that the ultimate fact
22. There are several reasons to conclude that the

property conferred on the Crown is not accurately
described as full beneficial, or absolute, ownership. First,
there is the difficulty in identifying what fauna is owned
by the Crown. Is the Fauna Act to be read as purporting to
314
deal with the ownership of all fauna that is located within

the territorial boundaries of the State but only for so long
as the fauna is within those boundaries, or does it deal
with all fauna that has at any time been located within
those boundaries? That is, does the Fauna Act purport to
give the Crown ownership of migratory birds only as they
pass through Queensland, or does it purport to give
ownership to the Crown of every bird that has ever crossed
the Queensland border?
if the Crown owned the fauna? Then there are the

provisions of s 7(2) that [l]iability at law shall not attach
to the Crown by reason only of the vesting of fauna in the
Crown pursuant to this section. The Crowns property is
property with no responsibility. None of these aspects of
the Fauna Act concludes the question what is meant by
property of the Crown, but each tends to suggest that it
is an unusual kind of property and is less than full
beneficial, or absolute, ownership.
23. Secondly, assuming that the subject matter of the

asserted ownership could be identified or some suitable
criterion of identification could be determined, what
exactly is meant by saying that the Crown has full
beneficial, or absolute, ownership of a wild bird or animal?
The respondent (and the Commonwealth) sought to equate
the Crowns property in fauna with an individuals
ownership of a domestic animal. That is, it was sought to
attribute to the Crown what Pollock called the entirety of
the powers of use and disposal allowed by lawfn35"[36].
27. Fourthly, it is necessary to consider why property in

some fauna is vested in the Crown. Provisions vesting
property in fauna in the Crown were introduced into
Queensland legislation at the same time as provisions
imposing a royalty on the skins of animals or birds taken
or killed in Queensland[43]. A royalty is a fee exacted
by someone having property in a resource from someone
who exploits that resource. As was pointed out in Stanton
v Federal Commissioner of Taxation[44]:
... the modern applications of the term [royalty]
seem to fall under two heads, namely the payments
which the grantees of monopolies such as patents
and copyrights receive under licences and
payments which the owner of the soil obtains in
respect of the taking of some special thing forming
part of it or attached to it which he suffers to be
taken.
24. At common law, wild animals were the subject of

only the most limited property rights. At common law there
could be no absolute property, but only qualified
property in fire, light, air, water and wild
animalsfn36"[37]. An action for trespass or conversion
would lie against a person taking wild animals that had
been tamedfn37"[38], or a person taking young wild
animals born on the land and not yet old enough to fly or
run awayfn38"[39], and a land owner had the exclusive
right to hunt, take and kill wild animals on his own
landfn39"[40]. Otherwise no person had property in a wild
animal.
That being so, the drafter of the early Queensland fauna

legislation may well have seen it as desirable (if not
positively essential) to provide for the vesting of some
property in fauna in the Crown as a necessary step in
creating a royalty system. Further, the statutory vesting of
property in fauna in the Crown may also owe much to a
perceived need to differentiate the levy imposed by the
successive Queensland fauna statutes from an excise. For
that reason it may well have been thought important to
make the levy as similar as possible not only to traditional
royalties recognised in Australia and imposed by a
proprietor for taking minerals or timber from land, but also
to some other rights (such as warren and piscary) which
never made the journey from England to Australia.
25. Ownership connotes a legal right to have and to

dispose of possession and enjoyment of the subject matter.
But the subject matter dealt with by the Fauna Act is, with
very limited exceptions, intended by that Act always to
remain outside the possession of, and beyond disposition
by, humans. As Holmes J said in Missouri v
Hollandfn40"[41]: Wild birds are not in the possession
of anyone; and possession is the beginning of
ownership.fn41"[42]
28. In light of all these considerations, the statutory

vesting of property in the Crown by the successive
Queensland fauna Acts can be seen to be nothing more
than a fiction expressive in legal shorthand of the
importance to its people that a State have power to preserve
and regulate the exploitation of an important resource[45].
So much was acknowledged in the second reading speech
on the Bill which first vested property in fauna in the
Crown. The Minister said [46]:
26. Thirdly, there are several aspects of the Fauna Act

which tend to suggest that the property in fauna conferred
on the Crown may not easily be equated with the property
an individual may have in a domestic animal. The property
rights of the Crown would come and go according to the
operation of the exception contained in s 7(1) of fauna
taken or kept otherwise than in contravention of this Act
during an open season with respect to that fauna. As open
seasons were declared and fauna taken, what otherwise
was the property of the Crown, ceased to be. Next there
are the references in ss 71(2) and 83(3) to forfeiture of
fauna to the Crown. Even accepting that s 84 says that these
sections shall not prejudice or affect the rights of the Crown
conferred by s 7, why were ss 71(2) and 83(3) necessary
It [the fur industry] is an industry that really belongs to

the people, and although the Bill, amongst other things,
makes it quite clear that the native animals of the State
belong to the people of the State, I do not think there is
any doubt in the minds of any one regarding that question
315
already. The native animals belong to the people in just

the same way as the timber and the minerals belong to the
people, and they cannot be sold without permission.
concession was right. That examination must begin from

a consideration of what is meant by native title rights and
interests.
29. Roscoe Pound explained why wild animals and other

things not the subject of private ownership are spoken of
as being publicly owned. He said[47]:
Native title rights and interests

32.
We are also tending to limit the idea of discovery

and occupation by making res nullius (eg, wild
game) into res publicae and to justify a more
stringent regulation of individual use of res
communes (eg, of the use of running water for
irrigation or for power) by declaring that they are
the property of the state or are owned by the state
in trust for the people. It should be said, however,
that while in form our courts and legislatures seem
thus to have reduced everything but the air and
the high seas to ownership, in fact the so-called
state ownership of res communes and res nullius
is only a sort of guardianship for social purposes.
It is imperium, not dominium. The state as a
corporation does not own a river as it owns the
furniture in the state house. It does not own wild
game as it owns the cash in the vaults of the
treasury. What is meant is that conservation of
important social resources requires regulation of
the use of res communes to eliminate friction and
prevent waste, and requires limitation of the times
when, places where, and persons by whom res
nullius may be acquired in order to prevent their
extermination. Our modern way of putting it is
only an incident of the nineteenth-century dogma
that everything must be owned. (Emphasis added)
Section 223 of the Native Title Act provides (in part):

(1) The expression native title or native title rights
and interests means the communal, group or
individual rights and interests of Aboriginal
peoples or Torres Strait Islanders in relation to
land or waters, where:
(a) the rights and interests are possessed under
the traditional laws acknowledged, and the
traditional customs observed, by the
Aboriginal peoples or Torres Strait Islanders;
and
(b) the Aboriginal peoples or Torres Strait
Islanders, by those laws and customs, have a
connection with the land or waters; and
(c) the rights and interests are recognised by the
(2) Without limiting subsection (1), rights and
interests in that subsection includes hunting,
gathering, or fishing, rights and interests.
33. The hunting and fishing rights and interests upon

which the appellant relied (and which the Magistrate found
to exist) were rights and interests possessed under the
traditional laws acknowledged, and the traditional customs
observed, by the clan and tribe of which the appellant
was a member[52]. The Magistrate found that by those
laws and customs, the appellants clan and tribe had a
connection with the land and waters where the crocodiles
were taken[53]. At least until the passing of the Fauna
Act those rights and interests were recognised by the
common law of Australia[54].
30. The property which the Fauna Act and its

predecessors vested in the Crown was therefore no more
than the aggregate of the various rights of control by the
Executive that the legislation created. So far as now
relevant those were rights to limit what fauna might be
taken and how it might be takenfn47"[48], rights to
possession of fauna that had been reduced to
possessionfn48"[49], and rights to receive royalty in
respect of fauna that was takenfn49"[50] (all coupled with,
or supported by, a prohibition against taking or keeping
fauna except in accordance with the Act 1975 fn50[51]).
Those rights are less than the rights of full beneficial, or
absolute, ownership. Taken as a whole the effect of the
Fauna Act was to establish a regime forbidding the taking
or keeping of fauna except pursuant to licence granted by
or under the Act.
34. The respondents contention was that the Fauna Act

extinguished these rights and interests. This led to debate
about what was referred to as the partial extinguishment
of native title and what was meant by that term. It is
unnecessary, however, to examine that debate in this case.
35. It is clear that native title in land is extinguished by
a grant in fee simple of that land[55]. As was said in the
joint judgment in Fejo v Northern Territory[56] it is
extinguished because the rights that are given by a grant
in fee simple are rights that are inconsistent with the native
title holders continuing to hold any of the rights or interests
which together make up native title. That is, native title
is extinguished by the creation of rights that are inconsistent
with the native title holders continuing to hold their rights
and interests. The extinguishment of such rights must, by
conventional theory, be clearly established[57].
31. The respondent expressly disclaimed a contention

that the enactment of legislation forbidding the taking or
keeping of fauna except pursuant to licence would be
sufficient to extinguish the rights and interests relied on
by the appellant. This concession was rightly made and it
follows, therefore, from what we have said about the
meaning and effect of the Fauna Act (and, in particular,
the vesting of property in some fauna in the Crown) that
the Act did not extinguish those rights and interests. It is
as well, however, to examine why the respondents
36. The critical contention of the respondent was that

the Fauna Act created a legal regime that was inconsistent
with native title holders in Queensland (and, in particular,
the group of which the appellant is a member) continuing
316
to hold one of the rights and interests (the right and interest
in hunting and fishing) that made up the native title the
Magistrate found to exist. That inconsistency was said to
lie in the creation of property rights in the Crown that were
inconsistent with the continued existence of the native title
assumes that it does not. Section 211 provides that a law

which prohibits or restricts persons from hunting or
fishing other than in accordance with a licence, permit or
other instrument granted or issued to them under the law,
does not prohibit or restrict the pursuit of that activity in
certain circumstances where native title exists. By doing
so, the section necessarily assumes that a conditional
prohibition of the kind described does not affect the
existence of the native title rights and interests in relation
to which the activity is pursued.
37. It is unnecessary to decide whether the creation of

property rights of the kind that the respondent contended
had been created by the Fauna Act would be inconsistent
with the continued existence of native title rights. It is
sufficient to say that regulating the way in which rights
and interests may be exercised is not inconsistent with their
continued existence. Indeed, regulating the way in which
a right may be exercised presupposes that the right exists.
No doubt, of course, regulation may shade into prohibition
and the line between the two may be difficult to
discernfn57"[58]. Similarly, it may not always be easy to
say whether the creation of statutory rights or interests
before the enactment of the Racial Discrimination Act
(Cth) and the Native Title Act was consistent with the
continued existence of native title rights and interests. (The
Racial Discrimination Act 1974 and the Native Title Act
will, of course, have to be considered where the question
concerns the effect of steps taken after the enactment of
those Acts.) But in deciding whether an alleged
inconsistency is made out, it will usually be necessary to
keep well in mind that native title rights and interests not
only find their origin in Aboriginal law and custom, they
reflect connection with the land. As Brennan J said in R v
Toohey; Ex parte Meneling Station Pty Ltdfn58"[59],
Aboriginal ownership is primarily a spiritual affair rather
than a bundle of rights but [t]raditional Aboriginal land
is not used or enjoyed only by those who have primary
spiritual responsibility for it. Other Aboriginals or
Aboriginal groups may have a spiritual responsibility for
the same land or may be entitled to exercise some
usufructuary right with respect to it.
40. The Fauna Act did not extinguish the rights and
interests upon which the appellant relied. Accordingly, by
operation of s 211(2) of the Native Title Act and s 109 of
the Constitution, the Fauna Act did not prohibit or restrict
the appellant, as a native title holder, from hunting or
fishing for the crocodiles he took for the purpose of
satisfying personal, domestic or non-commercial
communal needs. The Magistrate was right to dismiss the
information.
41. For completeness it is as well to note two further
matters. First, although the respondent did not rely on the
earlier decision of this Court in Walden v
Henslerfn60"[61] it must be recalled that the issues
discussed in that case were radically different from those
that arise in the present, not least because they arose before
the passing of the Native Title Act. Secondly, a number of
submissions were made in the course of argument that
touched upon questions much broader than those that must
be decided in this proceeding. It is neither necessary nor
desirable to express any view about them when this case
can be decided on the narrow question whether the Fauna
Act should be given the construction for which the
respondent and the Commonwealth contended. It should
not be given that construction.
42. The appeal should be allowed, the orders of the Court
of Appeal of Queensland set aside and in lieu it should be
ordered that the order nisi be discharged. For the reasons
given by Gummow J, costs should be disposed of as his
Honour has proposed.
38. Native title rights and interests must be understood

as what has been called a perception of socially constituted
fact as well as comprising various assortments of
artificially defined jural rightfn59"[60]. And an important
aspect of the socially constituted fact of native title rights
and interests that is recognised by the common law is the
spiritual, cultural and social connection with the land.
Regulating particular aspects of the usufructuary
relationship with traditional land does not sever the
connection of the Aboriginal peoples concerned with the
land (whether or not prohibiting the exercise of that
relationship altogether might, or might to some extent).
That is, saying to a group of Aboriginal peoples, You may
not hunt or fish without a permit, does not sever their
connection with the land concerned and does not deny the
continued exercise of the rights and interests that
Aboriginal law and custom recognises them as possessing.
43. McHUGH J. The critical question in this case is a

simple one. It is whether, by force of the Fauna
Conservation Act (Q) (the Act), property in all fauna in
Queensland, present or future, became or becomes vested
in the Crown after the commencement of the Act. If that is
the effect of the Act, the two estuarine crocodiles which
the appellant killed were the property of the Crown and he
had no right to kill them by reason of the Native Title Act
1993 (Cth) or otherwise.
44. Whether the property was vested in the Crown turns
on the construction of s 7 of the Act which, at the time of
its enactment, relevantly provided:
(1) All fauna, save fauna taken or kept during
an open season with respect to that fauna, is the
39. Not only did the respondent not contend that such a
law severed that connection, s 211 of the Native Title Act
317
property of the Crown and under the control of

the Fauna Authority.
(2) Liability at law shall not attach to the Crown
by reason only of the vesting of fauna in the Crown
pursuant to this section.
The Act eliminated any right which Aborigines

or others might have acquired lawfully to take
and keep fauna as defined in the Act, and any
entitlement which Aborigines might have enjoyed
at common law to take and keep fauna (assuming
that such an entitlement had survived the alienation
by the Crown of land over which Aborigines had
traditionally hunted).
45. The Act effectively definedfn61"[62] fauna to

mean any bird or mammal indigenous to Australia or any
animal which was declared by Order in Council to be fauna.
The Act definedfn62"[63] bird and mammal to mean
a bird or mammal wild by nature whether native to a State
or Territory of the Commonwealth, migratory or
introduced, in captivity, bred in captivity or tamed. An
Order in Council made on 29 August 1974 declared
estuarine crocodiles to be fauna for the purposes of the
Act.
49. Undoubtedly, s 7 does more than give to the Crown

the exclusive right to kill, take or appropriate fauna and to
take away from others any pre-existing right to do those
things. The section gives to the Crown every right, power,
privilege and benefit that does or will exist in respect of
fauna together with the right, subject to the Act, to exclude
every other person from enjoying those rights, powers,
privileges and benefits. That is the ordinary meaning of
property[67], although, of course, the term can have a
more limited meaning depending upon the terms of the
instrument which creates it. Whatever else property may
mean in a particular context, it describes a relationship
between owner and object by reference to the power of
the owner to deal with the object to the exclusion of all
others, except a joint owner.
46. In its natural and ordinary meaning, s 7 vests in the

Crown, and takes away from everyone else, the right to
deal with fauna as defined by the Act. Other provisions of
the Act give a right to apply for a licence to take fauna.
But s 7 destroyed all existing rights to take fauna. At
common law, the only right of property in wild animals
was the exclusive right to catch, kill and appropriate such
animals which is sometimes called by the law a reduction
of them into possession.[64] That right arose from the
possession of land on which the animals happened to be
or from a Crown grant to enter anothers land for the
purpose of catching, killing or appropriating wild game.
No doubt in Australia, the existence of common law native
title rights meant that Aboriginals had similar rights over
fauna.
50. The appellant would have it that s 7 has a more

limited meaning than that set out in the previous paragraph.
His argument suggests that the property in fauna in
Queensland vests in the Crown only upon other persons
taking or dealing with the fauna. Another version of the
argument is that the Act has effectively created a new,
negative form of property - that property in s 7 is no more
than a label which describes what the Crown notionally
has after the Act has identified the circumstances in which
others may take, possess and pay royalties to the Crown in
respect of fauna.
47. Section 7 of the Act reverses the common law rules

and vests all rights of catching, killing and appropriating
fauna in Queensland in the Crown. It therefore gives to
the Crown the sole right of catching, killing and
appropriating fauna in Queensland together with the right
to exclude every other person from catching, killing and
appropriating that fauna. If the term property has any
recognisable meaning in the Act, it must at least have
conferred those rights on the Crown and taken them away
from every other person once the Act was proclaimed.
51. If property in s 7 meant no more than the residue

of other peoples rights or the measure of the Crowns
entitlement to royalties, it would seem to serve little
purpose, if indeed it serves any purpose at all. I see no
indication in the Act that property in s 7 has such a
limited function or meaning. Words in legislative
instruments should not be read as if they were buildings
on a movie set - structures with the appearance of reality
but having no substance behind themfn67"[68]. When the
Queensland legislature declared that the property in fauna
is vested in the Crown, it should be taken to have meant
what it said. That being so, the ordinary meaning of
property should not be ignored. Property in s 7 should
not be taken as meaning no more than the residue of control
over fauna which the Crown has after others have carved
out their entitlements to take and keep fauna pursuant to a
licence granted by or under the Act. That is to turn the Act
on its head. The content of s 7 is the starting point for, not
the result of, determining the Crowns power over fauna
in Queensland.
48. One aspect of the history of fauna legislation in

Queensland provides convincing evidence that the
intention of the Act was to take away from others all
existing rights to take fauna and vest those rights in the
Crown. Earlier fauna legislation in Queensland had
expressly provided that that legislation did not apply to
[a]ny aboriginal killing any native animal for his own
food.fn64"[65] The Act contains no such immunity for
Aboriginal people. In Walden v Henslerfn65"[66],
Brennan J had no doubt that the effect of the Act was to
destroy the rights of the Aboriginal people to take fauna.
His Honour said:
But the Act changed the law. It vested the property
in all fauna in the Crown (s 7) and prohibited the
taking or keeping of fauna without a licence, etc.
52. The short answer to the appellants arguments is that

/au/legis/cth/consol_act/nta1993147/s7.htmls 7 says that
318
all fauna is the property of the Crown. Acts of Parliament

speak from their enactment. Consequently, the ordinary
and natural meaning of s 7 is that, after the commencement
of the Act, the property in fauna is and always remains in
the Crown until it disposes of it or a person, acting in
accordance with the Act, puts an end to the Crowns
property in particular fauna. Moreover, the fauna is and
remains under the control of the Fauna Authority. To
the absolute rule that property in fauna in Queensland is
in the Crown, s 7(1) contains an exception - when fauna is
taken in open season in accordance with the Act, the
property in the fauna passes to the person who has taken
it. However, I cannot see how that exception provides any
ground for thinking that the nature of the property that the
Crown has in the fauna is less than every right, power,
privilege and benefit that does or will exist in respect of
the fauna or that from the commencement of the Act the
Crown did not have the right to exclude every other person
from enjoying those rights, powers, privileges and benefits.
To contend that the Crown obtains no property in fauna
until it is taken, killed or appropriated is to deny the plain
words of s 7(1).
boy trapped a migratory bird but would divest it when he

let it go, making property in fauna in Queensland depend
upon a kind of statutory version of what old system
conveyancers called springing and shifting uses.
56. Nor is there anything unusual in a person having
property in an object of which he or she is unaware. The
common law has long recognised that a person may have
property in an object although he or she was unaware of
its existence. Thus in R v Rowe[70], an indictment for
larceny charged the accused with stealing a piece of iron
from the bed of a canal and laid the property in the iron in
the canal owner who apparently did not know of its
existence. The Court of Crown Cases Reserved held that
the indictment was good.
57. By declaring (s 7) that the property in fauna in
Queensland is vested in the Crown and then in subsequent
sections defining the circumstances in which others may
take that property, the Act proclaimed upon its
commencement that henceforth no one, land owner,
Aboriginal or holder of a grant from the Crown, had any
right to kill, take or appropriate fauna as defined. That being
so, the appellant had no right which the Native Title Act
1974 protected when it came into force. The reasons why
that is so are fully explained in the judgment of Callinan J.
53. It is also to deny the assumption on which s 7(2) of

the Act is based. That assumption is that, but for s 7(2),
the Crowns ownership of the fauna might make it liable
for the damage or harm that particular birds or mammals
might cause while at large.
58.
54. Consider also some of the consequences of

upholding the appellants arguments. The Crown would
obtain property in fauna only when a bird, mammal or
declared animal was killed, taken, or otherwise
appropriated by a third party. Presumably, the Crown would
lose its property as soon as the third party gave up
possession of it - at all events if that party set the bird or
mammal free. The arguments of the appellant must also
mean that the control of the Fauna Authorityfn68"[69]
only commences when a third party has killed, taken or
appropriated fauna. Presumably, the hapless officers of the
Authority, seeing an unlicensed person about to kill or
otherwise take or deal with fauna, would have no statutory
authority to act until the unlicensed person takes action.
Until death, taking or appropriation had occurred, the
officers would have no more legal authority to act to protect
the bird or mammal than any other citizen.
The appeal must be dismissed.
GUMMOW J.
Paragraph
I
II
III
IV
V
Introduction
The Offence
The Appellants Conduct
Common Law Native Title
Preliminary Matters
Racial Discrimination Act
Animals at common law
VI The Fauna Act [82]
The meaning of property
The vesting of property and Crown immunity
The qualification in s 7(1)
The meaning of Crown
VII Subsequent Amendments to the Fauna Act
VIII Extinguishment
IX Operation of the Native Title Act
X Conclusion
55. The appellant contended that it would be absurd for

the legislature to have intended that the Crown should have
property in wild animals before they were caught.
Illustrations were given during argument - the migratory
bird flying through Queensland being one example. Once
it is perceived that the purpose of the Act is to put an end
to arguments about who has the property in or the right to
hunt fauna as defined, I see nothing absurd in the legislature
of Queensland giving to the Crown the property in all fauna
in Queensland - even migratory birds. In any event, it leads
to no more absurd results than the opposing contention
which would vest property in the Crown when a young
Index
[59]
[61]
[67]
[72]
[78]
[79]
[80]
[85]
[87]
[91]
[96]
[102]
[106]
[119]
[125]
INTRODUCTION
59. This appeal concerns the appellants exercise, or

enjoyment, of a right, or incident, of common law native
title. The case comes to this Court after findings of fact[71]
were made at the appellants trial in the Magistrates Court
of Queensland on a complaint by the respondent. The
appellant exercised the incident of native title between
31 October 1994 and 1 December 1994, when he hunted
319
...
(vi) keeps dead non-protected fauna,
does not commit an offence against this Act.
(c) The exemption granted by provision (i) of
paragraph (b) shall not apply to the keeping of
live protected fauna by any person.
estuarine crocodiles, killed two and shared the meat from

the kill with members of his tribe. The Fauna Conservation
Act (Q) (the Fauna Act) prohibited the engagement in
some of this conduct without a licence under that statute.
The appellant had no such licence but he and the
interveners[72] supporting him submit that the Native Title
Act 1993 (Cth) (the Native Title Act) operated, in
conjunction with s 109 of the Constitution, to permit what
was otherwise prohibited by the State legislation. The
respondent and the interveners[73] who supported him
deny that proposition. They assert that, with effect from
1 September 1974 (the operative date of an Order in
Council made under the Fauna Act), the State statute had
extinguished any previously existing native title rights,
otherwise exercisable by the appellant, to take fauna, in
particular estuarine crocodiles.
62. The facts constituting the elements of the alleged

offence were not contested by the appellant at trial. The
killing of the two estuarine crocodiles was a taking of
fauna and the appellant did not hold a licence, permit,
certificate or other authority granted and issued under the
Fauna Act, nor did any of the exemptions in sub-s (b) of
s 54(1) apply.
63. However, the appellant sought to rely on an
immunity conferred by provisions of the Native Title Act
as a defence. Under cross-examination the appellant
argued:
60. I approach the issue raised on this appeal on the

footing, which is supplied both by principle and statements
in the authorities in this Court [74], that for such
extinguishment to be effective it was unnecessary that the
statutory regime and all that constituted the native title be
wholly inconsistent. Rather, the issue is one of identifying
what Brennan J called the extent of the
inconsistency[75].
II
I believe theres a greater law than a State law,

theres a Commonwealth law called the Native
Title Act and that was in at that stage I took the
crocodiles, so I was quite confident that I was
being lawful.
The appellant submits before this Court that s 54(1) of the

Fauna Act is inconsistent with s 211(2) of the Native Title
Act and therefore s 109 of the Constitution renders s 54(1)
invalid to the extent of the inconsistency. Consequently,
the appellants alleged liability under s 54(1) of the Fauna
Act never arose and the complaint laid against him had to
be dismissed.
THE O FFENCE
61. The appellant was charged under s 54(1) of the

Fauna Act 1886[76]. The Bench charge sheet, as amended,
stated:
That between the 31st day of October 1994 and
the 1st day of December 1994 at Cliffdale Creek
via Doomadgee in the Magistrates Courts District
of Mount Isa in the state of Queensland [the
appellant] did take fauna namely 2 [estuarine]
crocodile when he was not the holder of a licence
permit certificate or other lawful authority granted
and issued under the [Fauna Act] and when the
[appellant] was not exempted by section 54(1)(b)
of the [Fauna Act].
64. On 11 October 1996, the Magistrate found the

appellant not guilty on the basis of this defence and he
was discharged. The complainant, the respondent to this
appeal, applied under s 209 of the Justices Act (Q) for
review of the decision in the Supreme Court of Queensland.
On 28 November 1996, Williams J granted an order nisi
requiring the appellant to show cause before the
Queensland Court of Appeal (the Court of Appeal) why
the decision and order of the Magistrate should not be
reviewed on the following grounds:
At the time of the alleged offence, s 54(1) materially

provided:
(a) that the Magistrates Court erred in law in

failing to find that any entitlement which
Aborigines might have enjoyed at common law
to take or hunt estuarine crocodiles has previously
been validly extinguished by the enactment of the
[Fauna Act] and the operation of an order in council
dated 29 August 1974 made under that Act and
published in the Government Gazette on 31 August
1974; and that accordingly
(b) the Magistrates Court erred in law in finding
that the [appellant] is a person who holds native
title rights and/or interests within the meaning of
the [Native Title Act] which rights and/or interests
entitled him to take the said estuarine crocodiles.
(a) A person shall not take[[77], keep[78]] or

attempt to take or keep fauna of any kind unless
he is the holder of a licence, permit, certificate or
other authority granted and issued under this Act.
(b) Save as is otherwise expressly provided by
this Act, a person who (i) keeps protected fauna which fauna was taken
otherwise than in contravention of this Act
during an open season with respect to that
protected fauna in a place to which that open
season refers;
(ii) takes fauna at a time and place when and
where that fauna is non-protected fauna;
(iii) continues to keep fauna taken and kept
lawfully prior to the date of commencement
of this Act;
65. The Court of Appeal (McPherson JA and

Moynihan J, Fitzgerald P dissenting) heldfn78"[79] that
320
s 211(2) of the Native Title Act had no relevant operation

as the appellants native title right, or incident, to hunt
estuarine crocodiles had been extinguished by s 7(1) of
the Fauna Act and therefore the threshold requirement in
s 223(1)(c) of the Native Title Act that the right was
recognised by the common law of Australia was not
fulfilled. The Court of Appeal ordered that the order nisi
be made absolute and that the Magistrates order,
dismissing the complaint against the appellant, be set aside.
Further, the Court of Appeal ordered that the proceedings
be remitted to the Magistrates Court, directing that the
matter proceed according to law. From these orders this
Court granted special leave to appeal.
70. After the crocodiles were killed, the appellant

transported and utilised the kill. The appellant ate part of
the flesh of the crocodiles, part he shared with members
of his clan and the remainder he froze, with the skins, and
kept at his home. It was not challenged that the appellants
conduct was at all times within the customs of his
community.
66. It is convenient now to turn to consider the

appellants conduct which allegedly gave rise to the offence
under s 54(1) of the Fauna Act.
72. In Mabo v Queensland [No 2], Brennan J stated the

essential characteristics of native title[82]:
III
71. The legal character at common law of the appellants

conduct was disputed on the appeal to this Court and it is
to this that I now turn.
IV
COMMON LAW NATIVE TITLE
Native title has its origin in and is given its content

by the traditional laws acknowledged by and the
traditional customs observed by the indigenous
inhabitants of a territory. The nature and incidents
of native title must be ascertained as a matter of
fact by reference to those laws and customs.
THE APPELLANT S C ONDUCT
67. The appellant is a member of the Gunnamulla clan

of the Gungaletta, or Gangalidda, tribe of indigenous
Australians. The clans traditional land area is located
around Cliffdale Creek. This area is within the land
occupied by the Gungaletta tribe between Burketown and
the Queensland border with the Northern Territory.
Between 31 October 1994 and 1 December 1994, the
appellant killed two estuarine crocodiles from Cliffdale
Creek.
Native title is not treated by the common law as a unitary

concept. The heterogeneous laws and customs of
Australias indigenous peoples, the Aboriginals and Torres
Strait Islanders, provide its content. It is the
relationship[83] between a community of indigenous
people and the land, defined by reference to that
communitys traditional laws and customs, which is the
bridgehead to the common law. As a corollary, native title
does not exhibit the uniformity of rights and interests of
an estate in land at common law and ingrained habits of
thought and understanding[84] must be adjusted to reflect
the diverse rights and interests which arise under the rubric
of native title. To repeat what was said in Wik Peoples v
Queensland[85]:
68. The appellant hunted the estuarine crocodiles using

a traditional harpoon-type weapon, known as a wock,
using a dinghy powered by an outboard motor. This was
an evolved, or altered, form of traditional behaviour[80].
That is, the use of this mechanical device to provide
transport during the hunt was not a method of hunting
known to the appellants tribe before contact with nonindigenous people. At trial, the Magistrate held that this
method of hunting was consistent with the traditional
custom of the appellants indigenous community. This
finding is not challenged.
The content of native title, its nature and

incidents, will vary from one case to another. It
may comprise what are classified as personal or
communal usufructuary rights involving access
to the area of land in question to hunt for or gather
food, or to perform traditional ceremonies. This
may leave room for others to use the land either
concurrently or from time to time[86]. At the
opposite extreme, the degree of attachment to the
land may be such as to approximate that which
would flow from a legal or equitable estate
therein[87]. In all these instances, a conclusion
as to the content of native title is to be reached by
determination of matters of fact, ascertained by
evidence[88].
69. The definition of take in s 5 includes, in relation

to fauna[81], to hunt, to attempt to hunt and to
permit hunting. There is no further definition in the Fauna
Act of what is meant by hunt. But its inclusion in the
definition of take in s 5, with terms such as shoot,
kill, spear and trap, suggests it is used in the statute
to identify no more than physical acts for the obtaining of
possession of the fauna. However, the conduct of the
appellant complied with a traditional code of conduct
respecting the hunting of juvenile rather than mature
crocodiles and involved tribal totemic significance and
spiritual belief. The conduct of the appellant is inadequately
identified in terms of the statutory definition of take and
its components such as hunt. What was involved was
the manifestation by the appellant of the beliefs, customs
and laws of his community.
73. The term native title conveniently describes the

interests and rights of indigenous inhabitants in land,
whether communal, group or individual, possessed under
the traditional laws acknowledged by and the traditional
customs observed by the indigenous inhabitants[89]. The
native title of a community[90] of indigenous Australians
321
is comprised of the collective rights, powers and other

interests of that community, which may be exercised by
particular sub-groups or individuals in accordance with
that communitys traditional laws and customs. Each
collective right, power or other interest is an incident of
that indigenous communitys native title. This case
concerns the native title right, or incident, to hunt estuarine
crocodiles exercised by an individual, the appellant, who
is a member of a community, the Gunnamulla clan, who
have native title in the land on which the individual
exercised the right, within a tribe of indigenous Australians,
the Gungaletta.
it is convenient to emphasise that ingrained, but misleading,

habits of thought and understanding lurk in this area of
law. Whilst there is an intersection between them,
common law (and statutory) estates and native title are
derived from two distinct sources[95]. The former is
drawn from principles developed in the English common
law, as modified by statute, whilst the latter finds its origin
in the traditional laws acknowledged by and the traditional
customs observed by the indigenous inhabitants of a
territory[96].
77. Analogies to the doctrine of merger of estates appear
inapposite in dealing with the intersection between the
common law tenurial system and traditional laws and
customs. Blackstone describes the operation of the doctrine
of merger of estates as follows[97]:
74. The exercise of rights, or incidents, of an indigenous

communitys native title, by sub-groups and individuals
within that community, is best described as the exercise of
privileges of native title. The right, or incident, to hunt
may be a component of the native title of a numerous
community but the exercise by individuals of the privilege
to hunt may be defined by the idiosyncratic laws and
customs of that community. For example, a finding on the
evidence that, in accordance with its laws and customs, a
community hunts estuarine crocodiles on its traditional
lands will establish that an incident of that communitys
native title is hunting estuarine crocodiles on its traditional
lands. However, such a finding will not necessarily dispose
of the question of whether a particular individual or subgroup within that community has the privilege to hunt
estuarine crocodiles. The nature and scope of the privileges
in question will vary with the traditional laws and customs
of the particular community so as to accord with the distinct
social structure and patterns of occupancy and use of the
land of that indigenous community[91].
[I]t may be proper to observe, that whenever a

greater estate and a less coincide and meet in one
and the same person, without any intermediate
estate, the less is immediately annihilated; or, in
the law phrase, is said to be merged, that is, sunk
or drowned, in the greater.
The coalescence of rights and interests under the doctrine

of merger is apt to be misleading when considering the
intersection of native title rights and interests with an estate
or statutory interest in land held by one and the same
indigenous community. Moreover, it should be noted that
whilst at law the doctrine of merger applied irrespective
of the will of the parties concerned, equitys inclination to
follow the law here gave way to its preference for substance
over form. As Sir William Grant MR put it in Forbes v
Moffatt[98], in equity:
75. The common law recognition of native title limits

the class of persons who may exercise such rights to those
who have the requisite privilege, or entitlement, under the
traditional laws and customs of the community under
scrutiny. It is unnecessary in this case to consider whether
this is the only limiting factor imposed by the common
law; it was not challenged, other than in respect to s 54(1)
of the Fauna Act, that the appellant was entitled to exercise
the native title right, or incident, to hunt estuarine
crocodiles in accordance with his communitys traditional
laws and customs.
[t]he question is upon the intention, actual or

presumed, of the person, in whom the interests
are united.
In Queensland, as in other States, the equity rule as to

merger of estates prevails[99].
PRELIMINARY MATTERS
78. Before construing the Fauna Act and dealing with

its operation upon the native title right, or incident,
exercised by the appellant, it is necessary to attend to two
matters. The first is the operation of the Racial
Discrimination Act 1975 (Cth) (the Racial Discrimination
Act) and the second is to describe the treatment by the
common law of animals as the object of property rights.
76. Whilst recognised by the common law, native title

and the rights, or incidents, thereof arise independently of
the common law tenurial system[92]. It is to be noted
that it was not argued that the pastoral holding, leased by
the Carpentaria Land Council Corporation, which included
the land on which the appellant killed the crocodiles was
inconsistent with the native title right, or incident, to hunt
estuarine crocodiles at issue in this case. It is unnecessary
to determine whether the doctrine of inconsistency, as
considered in Wik[93] and Fejo v Northern Territory[94],
or principles of merger apply if a community of indigenous
Australians holds both native title and an estate or a
statutory interest with respect to the same land. However,
Racial Discrimination Act 1954

79. The Racial Discrimination Act commenced on
31 October 1975 (the Commencement Date). This is a
significant date for consideration of any alleged
extinguishment of native title rights by State legislation.
If acts done before the Commencement Date were effective
to extinguish or impair common law native title, the Native
322
Title Act does not undo that result[100]. The question

arises whether the Fauna Act operated to extinguish the
native title right, or incident, to hunt exercised by the
appellant such that, as the respondent submits, s 211(2) of
the Native Title Act can have no relevant operation. It is
necessary to construe the Fauna Act, in each of its forms
prior to the Commencement Date, to answer this question.
Any amendments thereafter, which otherwise would have
effected an extinguishment, would be open to challenge
under s 109 of the Constitution for inconsistency with the
Racial Discrimination Act [101]. No such challenge was
made by the appellant in this case. Further, the respondent
and his supporters have not submitted that any other State
legislation, such as the precursors to the Fauna Act[102],
operated to extinguish the native title right at issue. The
amendments to the Fauna Act following the
Commencement Date will be considered in Section VII of
these reasons.
entitled PRELIMINARY and ADMINISTRATION.

The principal point of contention between the parties
concerns the operation of s 7(1), the construction of which
will be considered below. Section 6(1) of the Act divided
fauna into four categories, (a) permanently protected
fauna, (b) protected fauna, (c) non-protected fauna, and
(d) prohibited fauna. Part III (ss 18-21) of the Act regulated
permanently protected fauna, whilst Pt IV (ss 22-25)
regulated protected fauna and Pt V (ss 26-27) regulated
both non-protected and prohibited fauna. Part VI (ss 2833), entitled OPEN SEASONS, Pt VII (ss 34-46),
entitled SANCTUARIES, REFUGES AND
RESERVES, and Pt XI (ss 67-71), entitled ROYALTY,
were broadly self-descriptive of the objects which each
regulated. It will be necessary later to refer more fully to
the royalty regime created by Pt XI. Parts VIII (ss 47-51),
IX (ss 52-54) and X (ss 55-56) created an enforcement
regime for the protection of fauna, whilst Pt XII (ss 7294) contained miscellaneous provisions and the Schedule
listed permanently protected fauna.
Animals at common law

80. I come now to the second matter. The common law
divides animals into two categories, harmless or domestic
(mansuetae naturae) and those which are dangerous or
wild by nature ( ferae naturae ). The distinction is
significant. Ferae naturae, such as estuarine crocodiles
which are dangerous and wild by nature[103], are reduced
to property at common law when killed or for so long as
they have been taken or tamed by the person claiming title.
What Field J identified as this qualified property right per
industriam[104] ceases if the creatures regain their natural
liberty. Further, the owner of a fee simple, who has not
licensed the right to hunt, take or kill ferae naturae, has a
qualified property ratione soli in them for the time being
while they are on that owners land[105]. In contrast,
mansuetae naturae found on a fee simple are owned by
the landowner. Equally, a person who keeps a dangerous
animal may be liable in negligence for damage done, or
injury inflicted, by the animal without proof of
scienter[106]. Wright also noted a corollary that trespass
or theft cannot at common law be committed of living
animals ferae naturae unless they are tame or
confined[107].
83. Fauna was defined in s 5 to mean a mammal or

bird: the term includes also any other animal or group of
animals wild by nature declared by Order in Council to be
fauna. Estuarine crocodiles neither fell within the
definition of mammal nor bird in s 5. By Order in
Council dated 29 August 1974 and published in the
Queensland Government Gazette on 31 August 1974 (the
Order in Council), the Governor in Council declared
estuarine crocodiles to be fauna for the purposes of [the
Fauna Act] throughout the State in accordance with s 11
of the Fauna Act. This occurred after the passing of the
Fauna Act but before its commencement on 1 September
1974. Section 17 of the Acts Interpretation Act (Q) provided
that the power under s 11 could be exercised at any time
after the passing of the Fauna Act provided that the Order
in Council made under that power did not have any effect
until the Fauna Act came into operation. The initial date
for considering the Fauna Acts operation on the native
title right, or incident, to hunt crocodiles at issue was
therefore 1 September 1974, more than a year before the
Commencement Date. Upon that date, estuarine crocodiles,
two of which were later killed by the appellant, were
fauna within the meaning of the Fauna Act.
81. It is appropriate now to consider the operation of

the Fauna Act on the native title right, or incident, to hunt
estuarine crocodiles which was exercised by the appellant.
VI
84. The respondents submission is that, with effect from

1 September 1974, s 7(1) of the Fauna Act operated to
extinguish the appellants right as an incident of the native
title of his community to hunt estuarine crocodiles.
Section 7 provided:
THE FAUNA ACT
82. The Fauna Act was assented to on 2 May 1974 and

commenced on 1 September 1974, and was not amended
in the period prior to the Commencement Date. The long
title described it is an Act to consolidate and amend the
law relating to the conservation of fauna in its habitats
and throughout its distribution in the State, the introduction
into and removal from the State of fauna, and for other
purposes. Section 3 divided the Fauna Act into twelve
Parts. Part I (ss 1-9) and Pt II (ss 10-17) were respectively
(1) All fauna, save fauna taken or kept[108]

during an open season with respect to that fauna,
is the property of the Crown and under the control
of the Fauna Authority.
323
The operation of s 7(1) turns, first, on the construction of

the word property therein and, secondly, on the manner
in which s 7 vests property in the Crown.
The vesting of property and Crown immunity

87. There is a threshold matter for the purposes of
determining inconsistency concerning the point in time
when property in the estuarine crocodiles hunted by the
appellant vested in the Crown. Did s 7(1) vest property
in estuarine crocodiles in the Crown when these animals
became fauna on 1 September 1974 or upon another
event? In order to dispose of this question it is necessary
to consider the operation of the immunity conferred on
the Crown by s 7(2) and the significant exception within
s 7(1) that property in fauna in the Crown does not arise
where it is taken or kept during an open season with
respect to that fauna.
The meaning of property

85. Property is used in the law in various senses to
describe a range of legal and equitable estates and interests,
corporeal and incorporeal. Distinct corporeal and
incorporeal property rights in relation to the one object
may exist concurrently and be held by different
parties [109]. Ownership may be divorced from
possession. At common law, wrongful possession of land
might give rise to an estate in fee simple with the rightful
owner having but a right of re-entry[110]. Property need
not necessarily be susceptible of transfer. A common law
debt, albeit not assignable, was nonetheless property[111].
Equity brings particular sophistications to the subject. The
degree of protection afforded by equity to confidential
information makes it appropriate to describe it as having a
proprietary character, but that is not because property is
the basis upon which protection is given; rather this is
because of the effect of that protection[112]. Hohfeld
identified the term property as a striking example of the
inherent ambiguity and looseness in legal
terminology[113]. The risk of confusion is increased
when, without further definition, statutory or constitutional
rights and liabilities are so expressed as to turn upon the
existence of property. The content of the term then
becomes a question of statutory or constitutional
interpretation[114].
88. Section 7(2) operates to immunise the Crown against

any claims which could have otherwise arisen as a result
of the enactment of s 7(1). This leads to consideration of
the doctrine of Crown immunity as it has applied to
Queensland. In The Commonwealth v Mewett, Gummow
and Kirby JJ said[117]:
[B]efore federation, in all the Australian colonies
save Victoria, legislation had established
procedures whereby claims in tort as well as in
contract might be brought against the colonial
governments[118].
89. Queensland was the source of this tradition[119],

enacting legislation in 1866 which was to become the
dominant model for Australian Crown proceedings
legislation, namely the Claims against Government Act
1866 (Q) (the Claims Act). The Claims Act was not
repealed[120] until 1 July 1980. By that time, given the
supervening operation of s 108 of the Constitution[121],
the Crown or colonial government affected by the Claims
Act was the State of Queensland [122]. Upon the
enactment of s 7(2) of the Fauna Act in 1974, the States
immunity was understood to have been subject to the
operation of the Claims Act. Section 7(2) thus partially
replaced the shield of the Crown which had been removed
by s 5 of the Claims Act 1903[123].
86. Finkelstein J recently pointed out[115] that, to

Hohfeld, property comprised legal relations not things, and
those sets of legal relations need not be absolute or fixed.
Hohfeld said of property[116]:
Sometimes it is employed to indicate the physical
object to which various legal rights, privileges,
etc., relate; then again - with far greater
discrimination and accuracy - the word is used to
denote the legal interest (or aggregate of legal
relations) appertaining to such physical object.
Frequently there is a rapid and fallacious shift from
the one meaning to the other. At times, also, the
term is used in such a blended sense as to convey
no definite meaning whatever.
90. To identify the liability at law arising from the

enactment of s 7(1) of the Fauna Act, it is necessary to
return to the definition of fauna in s 5. The definition
was limited to birds and mammals which were wild by
nature and such other animal or group of animals wild
by nature declared by Order in Council to be fauna. The
condition, wild by nature, limited the definition of
fauna to ferae naturae. At common law, in respect to
liability for damage caused by ferae naturae, liability for
damage arose upon a person taking or taming the animal.
Therefore s 7(2) applied only if s 7(1) vested property
in the Crown in fauna such that the Crown acquired at
least the equivalent legal obligations at common law of a
person who had taken or tamed ferae naturae. It is
convenient now to consider the qualification contained
within s 7(1).
Property is used in the latter sense in s 7(1), that

is, as an aggregate of legal relations between the Crown
and fauna. In order to determine the content of these
legal relations, it is necessary to consider: first, the manner
in which property is vested in the Crown; secondly, the
Crowns immunity under s 7(2) from such liability as
would otherwise have arisen from the vesting of property;
thirdly, the qualification contained in s 7(1); and, fourthly,
the meaning of the term Crown.
324
The qualification in s 7(1)
Fauna Authority. As a matter of construction, should s 7(1)

be read as so limited?
91. Not all fauna is the property of the Crown within

the meaning of s 7(1). Fauna which is taken or kept during
an open seasonfn123"[124] with respect to that fauna is
not the property of the Crown. The acts of taking or
keeping thus perform a threshold distributive function in
determining whether property is vested in the Crown.
The meaning of Crown

96. To construe s 7(1) in its statutory context, it is
necessary to determine the meaning of the word Crown
in s 7(1) in a manner which is consistent with the remaining
provisions of the Fauna Act. Section 7(1) identifies the
Crown in two senses. First, fauna is the property of the
Crown and secondly, fauna was under the control of the
Fauna Authority which was defined in s 5 to mean the
Minister and subject to the Minister the Under Secretary
and the Conservator. Minister in turn was defined in
s 5 to mean the Minister for Primary Industries or other
Minister of the Crown who at the material time is charged
with the administration of this Act: the term includes a
Minister of the Crown who is temporarily performing the
duties of the Minister. Section 7(1) therefore placed
control of fauna in a persona designata of the Crown, that
is a Minister of the Crown in right of Queensland. In
contrast, the reference in s 7(1) to fauna being the property
of the Crown must be taken to be a reference to that body
politic which is the State of Queensland.
92. This assists in determining the statutory meaning of

property in s 7(1). For example, if an open season be
declared for estuarine crocodiles and a tourist boat
injures, damages or even disturbs an estuarine
crocodile, the result is that the property in the crocodile
does not vest in the Crown. This is because the creature
has been taken in an open season. Thus, where an
open season has been declared in respect to particular
fauna, the vesting and subsistence of property in such
fauna is conditioned upon the actions of third parties. The
interests in fauna created by s 7(1) differ in nature from
the ordinary understanding of property in a chattel
conferred by the common law.
93. These matters support a construction of s 7(1) that
the legal relations, described in s 7 as the vesting of
property, arise only if a person takes or keeps
fauna. If the fauna is taken or kept, during an open season
with respect to that fauna, property does not vest in the
Crown. However, if fauna is otherwise taken or kept,
within the meaning of s 5, property is vested in the Crown
and the immunity provided for in s 7(2) for the Crown has
a relevant operation.
97. This construction of s 7(1) accords with the structure

of the Fauna Act as a whole. Section 10 provides that the
Act shall be administered by the designated person,
whilst numerous provisions throughout the remainder of
the Act provide that the Governor in Council may undertake
certain activities in order, broadly, to effectuate the
purposes of the Act. In contrast, the Crown, as the State
of Queensland, is referred to in the Fauna Act for the limited
purpose of recouping money sums which may become
payable from time to time under the Act.
94. The scope of the legal relations, known as

property, between estuarine crocodiles and the Crown
remains to be identified. It is necessary now to consider
the meaning of vesting in s 7(2). In Attorney-General
for Quebec v Attorney-General for Canada[125], a
Canadian provincial statute provided that tracts of land
shall be and are hereby respectively set apart and
appropriated to and for the use of the several Indian tribes
in Lower Canada ... and the said tracts of land shall
accordingly, by virtue of this Act ... be vested in and
managed by the Commissioner of Indian Lands for Lower
Canada. The Privy Council observed that[126]:
98. The principal reference to the Crown, as the State

of Queensland, is found in Pt XI of the Fauna Act. To adopt
the language of Deane J in Walden v Hensler[127], s 7(1)
provides a basis of the royalty system which Pt XI of the
[Fauna Act] establishes. The collection of royalty sums,
as opposed to the physical possession of fauna, is the
relevant legal interest of the Crown manifested in Pt XI
(ss 67-71). Section 71(1) confirms this construction. It
provides for the seizure and forfeiture of fauna in default
of payment of royalty sums.
It is not unimportant, however, to notice that the

term vest is of elastic import; and a declaration
that lands are vested in a public body for public
purposes may pass only such powers of control
and management and such proprietary interest as
may be necessary to enable that body to discharge
its public functions effectively. (emphasis added)
99. Part XI vastly expands the royalties, or sums

payable, which at common law otherwise would have
attached as a privilege of the Crown in respect of certain
animals[128]. As first enacted in 1974, Pt XI created a
royalty regime for prescribed fauna. Sub-section (1) of
s 67 provided that royalty at the rates prescribed shall be
payable to the Crown on prescribed fauna, whilst sub-s
(2) stated:
95. In this case, s 7(1) does not in terms provide that it

is for particular public or statutory purposes that fauna is
the property of the Crown and under the control of the
Notwithstanding this Act or any other Act or law,

payment of royalty on fauna pursuant to this Act
325
does not transfer property in that fauna from the

Crown.
The persons liable for payment of royalty were
identified in s 68(1):
enacted in 1974, were limited to those which may have

arisen, from time to time, first by way of royalty and,
secondly, by penalty exacted from a person who
contravened the statutory proscriptions supporting the
royalty regime.
The following persons shall be jointly and

severally liable for the payment of royalty:-
VII
(a) the person who takes the fauna;
(b) a fauna dealer or other person who at any
time after the taking of the fauna receives or
keeps the fauna or fauna obtained therefrom.
SUBSEQUENT AMENDMENTS TO THE FAUNA

ACT
102. Before considering the question of extinguishment,

it is necessary to inquire whether the amendments to the
Fauna Act, subsequent to the Commencement Date and
before the time of the appellants alleged offence[130],
effected a change in the Crowns rights under the Fauna
Act in respect to fauna.
Liability for the payment of royalty arises (c) in a case to which subparagraph (a) applies,
immediately upon the taking of the fauna in
question;
(d) in a case to which subparagraph (b) applies,
immediately upon the receipt of the fauna in
question.
103. The amendments did not materially alter the

construction of the Fauna Act set out in Section VI of these
reasons nor did they expand the rights conferred on the
Crown arising from the vesting of property in the Crown
in s 7(1). However, reference should be made to the
insertion of s 7(1A) by s 5 of the 1984 Amendment Act.
Section 66 forbad, without a permit, the breeding of
prescribed fauna for gain or reward, and the sale of fauna
so bred. Section 7(1A), with effect from 15 May 1984,
made provision with respect to the transfer, royalty-free,
of property to an authorised breeder. It stated:
The first event which triggers liability for the payment of

royalty is a taking of prescribed fauna. At a time
thereafter actual payment of the royalty may or may not
be made. If that payment occurs, s 67(2) confirms that it
does not transfer property in that fauna from the Crown.
Section 67(2) assumes that property in fauna in the
Crown vests before payment of the royalty. These
provisions are therefore consistent with the construction
of s 7(1) considered above whereby property in fauna
vests in the Crown upon a taking or keeping of the fauna,
events anterior to any time when a royalty payment is to
be made.
Notwithstanding the provisions of this Act, and

subject to the provisions of any Act dealing with
the farming of deer, the Conservator may, with
the consent in writing of the Minister, transfer
the property in fauna that is obtained by an
authorized person from the breeding of fauna for
gain or reward in accordance with the provisions
of section 66 from the Crown to that authorized
person and no royalty shall be payable on that
fauna or any farm-bred progeny therefrom.
100. The second implicit reference in the Fauna Act to

the Crown, as the State of Queensland, is found in the
enforcement provisions. These impose penalties upon
persons who contravene the statutory proscriptions
supporting the royalty regime. Section 54(1)(a), the text
of which is set out in Section II of these reasons, is one
such enforcement provision. As first enacted, s 54(2)
provided:
104. Property in the Crown would arise, in respect of

fauna bred for gain or reward by a permit holder under
s 66, because it was kept by that breeder. A royalty would
be payable under s 68 because the fauna had been taken
or had been obtained from such fauna. Section 7(1A)
provided for a relaxation of that royalty regime.
A person who commits an offence against this

section is liable to a penalty of not less than $50
and not more than $1,000, and in addition to a
penalty of twice the royalty payable on each fauna
in respect of which the offence is committed.
105. It is convenient now to consider whether the vesting

of these rights in the Crown in respect to estuarine
crocodiles extinguished the appellants native title right,
or incident, to hunt estuarine crocodiles.
The Crown, as the State of Queensland, is the entity to

which the penalty was payable[129].
101. Accordingly, the State of Queensland had two
interests conferred by the Fauna Act, first, the recovery of
royalties under Pt XI and, secondly, the recovery of penalty
sums under the various enforcement provisions in the Act,
such as s 54(2). The legal relations between the Crown, as
the State of Queensland, and fauna, created by s 7(1) by
the vesting of property in the Crown, supported these
limited statutory interests. The rights of the Crown in
fauna created by the vesting of property by s 7(1), as
VIII
EXTINGUISHMENT
106. In Wik[131], this Court considered the effect of

rights conferred by statute on native title rights. It was held
that native title rights will be extinguished where they are
inconsistent with the statutory rights. This requires[132]:
a comparison between the legal nature and
incidents of the existing right and of the statutory
326
right. The question is whether the respective

incidents thereof are such that the existing right
cannot be exercised without abrogating the
statutory right. If it cannot, then by necessary
implication, the statute extinguishes the existing
right.
effect, in terms of inconsistency, whilst unperformed. If

performance had occurred, questions would have arisen
respecting operational inconsistency between the
performed condition and the continued exercise of native
title rights.
107. Whether in a given case native title rights have been

extinguished is a question of law. The inquiry turns on the
legal criterion of inconsistency. Where there has been a
grant of a fee simple, the application of this criterion is
not determined by the existence, as a matter of fact, of an
indigenous communitys attachment or connection to the
land, whether spiritual, cultural, social or economic. This
inquiry relates to the anterior question of whether, but for
the relevant inconsistency, native title would still subsist.
For example, a non-indigenous owner of land in fee simple
may continue to permit indigenous people to retain
connections to the land but this will not derogate from the
conclusion that the grant of fee simple extinguished native
title on that land. Further, the existence, as a matter of fact,
of indigenous peoples continued connection to land which
has been the subject of a grant in fee simple does not permit
a springing back of native title at some future time[133].
111. Some analogy is provided by The Commonwealth v

Western Australia[136]. There, it was necessary to
determine whether operational inconsistency under s 109
of the Constitution had arisen between Pt XI of the Defence
Force Regulations, made under s 124(1) of the Defence
Act (Cth), and the Mining Act 1978 (WA) in respect of a
residual portion of land declared to be a defence practice
area in Western Australia. The State law provided for the
granting of mining exploration licences with respect to this
land, subject to conditions. However, if licences were
granted, inconsistency was not inevitable. The Minister
for Mines could have granted the licences under the State
law on terms which prevented the licensees from being on
the relevant land at any time during the conduct of defence
operations[137].
112. In the present appeal, the narrow issue is whether
the creation of certain statutory rights, conditioned upon
the exercise of power conferred by the statute, abrogated
the exercise of the native title right, or incident, to hunt.
The characteristics of the statutory rights created by or
pursuant to the exercise of powers conferred by the Fauna
Act are described in Section VI of these reasons. The power
in question was exercised by the declaration of estuarine
crocodiles as fauna by the Order in Council. Only then
could any question of inconsistency arise.
108. The continued subsistence of native title will turn

upon the extent of the inconsistency in question. In the
case of a grant of a fee simple or of a leasehold interest, as
known to the common law, this second step will be
unnecessary; subject to the observations above concerning
the intersection of native title rights and estates, the
comprehensiveness of the grant precludes any question of
partial extinguishment.
113. The matters which require determination in the

present appeal are: (i) when does the question of
inconsistency properly arise?; and (ii) what is the effect of
the statutory rights on the exercise of the native title right
to hunt?
109. Before turning to whether inconsistency arose in the

present appeal, it is important to clarify the utility of factual
findings. Factual findings are necessary to establish the
ambit of the native title right as defined by the traditional
laws and customs of the indigenous community. The ambit
of the native title right is a finding of law. This must then
be placed against the statutory rights which are said to
abrogate it. The question to be asked in each case is whether
the statutory right necessarily curtails the exercise of the
native title right such that the conclusion of abrogation is
compelled, or whether to some extent the title survives, or
whether there is no inconsistency at all. Indeed, statute
may regulate the exercise of the native title right without
in any degree abrogating it.
114. The Crowns property in fauna under s 7(1) of the

Fauna Act arises only upon a taking or keeping.
Further, the provisions in the Fauna Act for the granting
of permission to take fauna and for the declaration of
animals to be (or not be) fauna reinforce the conclusion
that any question of inconsistency arises upon, but not
before, a taking or keeping of fauna.
115. The exercise of the native title right to hunt was a
matter within the control of the appellants indigenous
community. The legislative regulation of that control, by
requiring an indigenous person to obtain a permit under
the Fauna Act in order to exercise the privilege to hunt,
did not abrogate the native title right. Rather, the regulation
was consistent with the continued existence of that right.
110. In Wik, the Court considered the grant of particular

statutory interests. The statutory grants did not clearly,
plainly and distinctly [authorise] activities and other
enjoyment of the land which necessarily were inconsistent
with the continued existence of any of the incidents of
native title which could have been subsisting at the time
of these grants[134]. Further, the subsistence of native
title rights was not abrogated by the mere existence of
unperformed conditions in the grant of a pastoral
lease [135]. These conditions had no immediate legal
116. Further, as described in Section III of these reasons,

the native title right to hunt exercised by the appellant was
not merely the right to take estuarine crocodiles within
327
the meaning of s 5 of the Fauna Act. The native title right

has both an anterior and posterior operation. Any anterior
exercise of the native title right, prior to a taking or
keeping of an estuarine crocodile, is not inconsistent with
the Crowns so-called property rights pursuant to s 7(1).
Part 15 (ss 222-253) is entitled Definitions, Div 2

(ss 223-240) therein is entitled Key concepts: Native title
and acts of various kinds etc. Sections 223 and 224 inform
the meaning of s 211. They materially state:
223 Native title
117. Accordingly, the native title right, or incident, to hunt

estuarine crocodiles exercised by the appellant was not
extinguished at any time before the taking of the
estuarine crocodiles which allegedly contravened s 54(1)
of the Fauna Act.
Common law rights and interests

(1) The expression native title or native title rights
and interests means the communal, group or
individual rights and interests of Aboriginal
peoples or Torres Strait Islanders in relation to
land or waters, where:
(a) the rights and interests are possessed under
the traditional laws acknowledged, and the
traditional customs observed, by the Aboriginal
peoples or Torres Strait Islanders; and
(b) the Aboriginal peoples or Torres Strait
Islanders, by those laws and customs, have a
connection with the land or waters; and
(c) the rights and interests are recognised by the
118. Finally, I turn to consider the effect of the Native

Title Act on the appellants common law native title right,
or incident, to hunt estuarine crocodiles.
IX
OPERATION OF THE NATIVE TITLE ACT
119. Part 13 (ss 208-215) of the Native Title Act is

entitled Miscellaneous. Section 211 provides:
Preservation of certain native title rights and
interests
Hunting, gathering and fishing covered

(2) Without limiting subsection (1), rights and
interests in that subsection includes hunting,
gathering, or fishing, rights and interests.
Requirements for removal of prohibition etc on

native title holders
224 Native title holder

The expression native title holder, in relation to
native title, means:
(1) Subsection (2) applies if:

and interests in relation to land or waters
consists of or includes carrying on a particular
class of activity (defined in subsection (3));
and
(b) a law of the Commonwealth, a State or a
Territory prohibits or restricts persons from
carrying on the class of activity other than in
accordance with a licence, permit or other
instrument granted or issued to them under
the law; and
(c) the law is not one that confers rights or
interests only on, or for the benefit of,
Aboriginal peoples or Torres Strait Islanders.
Removal of prohibition etc on native title holders
(2) If this subsection applies, the law does not
prohibit or restrict the native title holders from
carrying on the class of activity, or from gaining
access to the land or waters for the purpose of
carrying on the class of activity, where they do
so:
domestic or non-commercial communal
needs; and
(b) in exercise or enjoyment of their native title
(a) if a prescribed body corporate is registered on

the National Native Title Register as holding the
native title rights and interests on trust - the
prescribed body corporate; or
(b) in any other case - the person or persons who
hold the native title.
120.
In Western Australia v The Commonwealth (Native

Title Act Case)fn137"[138], the Court, after setting
out the relevant text of s 211, continued:
The usufructuary rights comprehended by subs (3) are, by virtue of sub-s (2)(b), rights and
interests which are incidents of native title. They
are, by definition (s 223(1)), rights and interests
that are recognised by the common law and, by
operation of s 11(1), they cannot be extinguished
except in conformity with the Act. Section 211(2)
removes the requirement of a licence, permit or
other instrument granted or issued ... under the
law referred to in s 211(1)(b) as a legal condition
upon the exercise of the native title rights specified
in sub-s (3). If the affected law be a law of a State,
its validity is unimpaired, but its operation is
suspended in order to allow the enjoyment of the
native title rights and interests which, by s 211,
are to be enjoyed without the necessity of first
obtaining a licence, permit or other instrument.
Again, the effect of s 211 is not to control the
exercise of State legislative power, but to exclude
laws made in exercise of that power (inter alia)
from affecting the freedom of native title holders
Definition of class of activity

(3) Each of the following is a separate class of
activity:
(a) hunting;
(b) fishing;
(c) gathering;
(d) a cultural or spiritual activity;
(e) any other kind of activity prescribed for the
purpose of this paragraph.
328
to enjoy the usufructuary rights referred to in

s 211.
126. The appellant seeks an order for costs in this Court

and in the Court of Appeal. The appeal arises out of a
prosecution but presents special features. The outcome is
dictated by the operation, through the medium of s 109 of
the Constitution upon the Fauna Act, of the Native Title
Act. This attracted interventions, as to some said to be as
of right under s 78A(1) of the Judiciary Act 1903 (Cth)
and as to others admitted to require leave.
121. The appellants conduct in hunting and killing the

estuarine crocodiles was a class of activity for the
purposes of s 211(2) of the Native Title Act. Further,
s 54(1)(a) of the Fauna Act was a State law which fell
within the terms of s 211(1)(b). It prohibited or restricted
persons from carrying on the relevant class of activity at
stake in this case, namely hunting, other than in accordance
with a licence, permit or other instrument granted or issued
to them under the Fauna Act. Equally, s 54(1)(a) of the
Fauna Act answered the criteria in s 211(1)(c).
127. It is implicit in what has been said earlier in these

reasons that, to the extent necessary to grant leave to any
intervener, I would do so.
122. The respondents principal contention was that the

appellants conduct did not fall within the definition of
native title or native title rights and interests in s 223,
because the condition in par (c) of s 223(1) that the rights
and interests are recognised by the common law of
Australia could not have been satisfied. The existence of
a native title right, which was not extinguished prior to the
enactment of s 211, is assumed. Section 211, in conjunction
with s 109 of the Constitution, operates to remove
prohibitions or restrictions in Commonwealth, State or
Territory laws which might otherwise extinguish the
relevant native title right.
128. Section 78A(2) of the Judiciary Act 1974 provides

for costs orders against intervening Attorneys-General. The
appellant seeks such orders in respect of the increase in
costs brought about by their interventions. In the end, as
might have been expected, this case has turned upon a close
analysis of the Fauna Act. The interveners supporting the
respondent, the Attorneys-General, between them filed
extensive materials which did not assist in that task. There
is merit in the appellants submission that this is a case for
the special order he seeks against the intervening Attorneys.
I would make an order against each of the intervening
Attorneys, that they pay the additional costs of the appellant
resulting from their intervention.
123. However, the common law native title right, or

incident, to hunt estuarine crocodiles exercised by the
appellant was not extinguished by the Fauna Act prior to
the taking of the two estuarine crocodiles at Cliffdale
Creek. Therefore the native title right was recognised
by the common law of Australia within the meaning of
par (c) of s 223(1), at the time when the appellant was
alleged to have committed the offence against s 54(1) of
the Fauna Act.
129. There was no argument with respect to the general

order for costs sought against the respondent. I would give
the appellant leave to present written submissions as to
why, notwithstanding the criminal nature of the process
involved, there should be such an order in his favour in
respect of the proceedings in this Court and in the Court
of Appeal. The submissions should be filed not later than
14 days after delivery of judgment. The respondent should
have 14 days to reply to those submissions.
124. The Magistrate held that the conditions of

s 211(2)(a) were fulfilled in this case. It was not otherwise
disputed that the appellants conduct was in exercise or
enjoyment of his native title rights and interests within
the meaning of s 211(2)(b). As a consequence, s 211(2)
applied to the appellants conduct. Direct inconsistency
arose between the prohibition purportedly imposed on the
appellant by s 54(1) of the Fauna Act and the removal of
the prohibition by s 211(2) of the Native Title Act. Section
109 of the Constitution operated to deny what otherwise
could have been the appellants liability to punishment for
contravention of s 54(1) of the Fauna Act. Therefore the
complaint against the appellant was not well based in law.
130. CALLINAN J. This case which was commenced in

the Magistrates Court in Mount Isa raises a question
whether an incident, tradition, right or privilege of or
interest in native title has been extinguished by the Fauna
Conservation Act (Q) (the Act).
Facts
131. The appellant was charged with having taken fauna,
crocodiles, without being the holder of a licence, permit,
certificate or other authority, under s 54(1)(a) of the Act.
54(1)(a) A person shall not take, keep or attempt
to take or keep fauna of any kind unless he is the
holder of a licence, permit, certificate or other
authority granted and issued under this Act.
(b) Save as is otherwise expressly provided by
this Act, a person who (i) keeps protected fauna which fauna was taken
otherwise than in contravention of this Act
CONCLUSION
125. I would allow the appeal, order that the orders of

the Court of Appeal be set aside and in lieu thereof order
that the order nisi of Williams J dated 28 November 1996
be discharged.
329
during an open season with respect to that

protected fauna in a place to which that open
season refers;
(ii) takes fauna at a time and place when and
where that fauna is non-protected fauna;
(iii) continues to keep fauna taken and kept
lawfully prior to the date of commencement
of this Act;
(iv) keeps aviary birds;
(v) keeps for his own private domestic enjoyment,
not more than five in total of birds of
prescribed species which birds have not been
unlawfully taken, and who at the same time
keeps no birds other than aviary birds;
(vi) keeps dead non-protected fauna, does not
commit an offence under this Act.
(c) The exemption granted by provision (i) of
paragraph (b) shall not apply to the keeping of
live protected fauna by any person.
(2) A person who commits an offence against this
section is liable (a) if the offence is one related to the taking of
fauna, to a penalty of 100 penalty units or 12
months imprisonment or both;
(b) if the offence is one related to the keeping of
fauna, to a penalty of 40 penalty units,
and in any case to an additional penalty not
exceeding twice the royalty on each fauna in
respect of which the offence is committed.
133. On the basis of this evidence and although some of

it, particularly as to a possible totemic significance of
crocodiles in this area, was vaguefn139"[140], because
it was neither challenged nor the subject of any objection,
the Magistrate formed the view that the appellant had been
doing no more than taking advantage of his native title
right in taking and eating the crocodiles, and that that right
had not been extinguished by the Act. In acquitting the
appellant the Magistrate expressed himself in this way:
[T]he evidence is that the traditional custom was
to hunt crocodile for food from time to time, not
just crocodile, however, but juvenile creatures.
Evidence is that adults are not hunted. Quite apart
from the fact that that seems rather prudent, the
evidence suggests tribal totemic significance and
spiritual belief. The defendant says he complies
with that code of behaviour.
...
Whilst there is the authority for the proposition
that hunting rights as such are not available on
common law principles, the clear inclusion of such
in subsection (2) of section 223 of the Native Title
Act now demands of the common law in Australia
the statutory interpretation now provided.
Being satisfied that the provisions of clause (c)
are complied with and being satisfied that the
defendant is a member of a class described in all
paragraphs of section 223(1), I accept that the
defendant was in the exercise or enjoyment of his
Native Title rights and interests, section 211(2)(b).
He is therefore a person who holds Native Title
rights and interests as defined in section 224.
132. Evidence was given in the Magistrates Court without

objection, that the appellant took, during a period of five
weeks, two young crocodiles from Cliffdale Creek in North
Queensland. He and other members of his group or tribe
froze and ate part of the catch. The area around Cliffdale
Creek was traditionally occupied by the tribe or group of
people, the Gungaletta people, of whom the appellant was
a member. The precise length of time of this occupation
was uncertain. The appellant claimed that the area had been
occupied for at least 1,300 years. Dr Trigger, an
anthropologist, gave unchallenged evidence that
radiocarbon dating conducted in 1983 indicated that
shellfish-eating people occupied the area 140 years ago
(plus or minus 60 years) and 1,300 years ago (plus or minus
80 years). The appellant and Dr Trigger gave evidence that
the appellants genealogy could be traced back to 1870.
The Magistrate concluded that the appellants tribe or
people were identical with those whose presence was
revealed by carbon dating. The hunting and taking of
crocodiles in the area was a practice which, Mr Yanner
stated, his people had been following forever. He also
said that although traditional hunting methods had changed
over the years, the way in which he hunted crocodiles was
[p]retty much the same as the way in which his ancestors
had. This claim was made despite the fact that the appellant
used a modern boat with an outboard motor and a steel
tomahawk to administer the coup de grce to the
crocodilesfn138"[139]. Dr Trigger also gave evidence that
Gungaletta customs and traditions have simply been
maintained from the earliest processes of colonisation
through to the present, though they have changed in certain
ways.
Having accepted the criteria set out, and as referred

to in the Native Title Act, I am satisfied that the
defendant has established his defence to the
offence alleged under the State legislation. That
being the case, the defendant is found not guilty
and is discharged.
134. In the Queensland Supreme Court the respondent

obtained an order nisi for review of the Magistrates
decision. The Queensland Court of Appeal (McPherson
JA and Moynihan J; Fitzgerald P dissenting) accepted the
respondents argument that the native title rights of the
appellant had been extinguished by the operation of the
Act, and accordingly held that the Magistrate erred in
applying the Native Title Act 1993 (Cth). The Court of
Appeal made the order nisi absolute and remitted the
proceedings to the Magistrates Court in Mount Isa for
determination according to law.
Appeal to this Court
135. The appeal to this Court may, in my opinion, be
resolved by the application of s 7 (in the context of the Act
as a whole) to the facts as found by the Magistrate.
136. Section 7 of the Act provides as follows:
330
(1) All fauna, save fauna taken or kept otherwise

than in contravention of this Act during an open
season with respect to that fauna, is the property
of the Crown and under the control of the Fauna
Authority.
... when it is said by writers on the Common Law

of England that there is a qualified or special right
of property in game, that is in animals
ferae naturae which are fit for the food of man,
whilst they continue in their wild state, I apprehend
that the word property can mean no more than
the exclusive right to catch, kill and appropriate
such animals which is sometimes called by the
law a reduction of them into possession.
(1A) Notwithstanding the provisions of this Act,

and subject to the provisions of any Act dealing
with the farming of deer, the [Conservator] may,
with the consent in writing of the Minister, transfer
the property in fauna that is obtained by an
authorized person from the breeding of fauna for
gain or reward in accordance with the provisions
of section 66 from the Crown to that authorized
person and no royalty shall be payable on that
fauna or any farm-bred progeny therefrom.
This right is said in law to exist ratione soli, or

ratione privilegii ... Property ratione soli is the
common law right which every owner of land has
to kill and take all such animals ferae naturae as
may from time to time be found on his land, and
as soon as this right is exercised the animal so
killed or caught becomes the absolute property
of the owner of the soil.

Property ratione privilegii is the right which, by

a peculiar franchise anciently granted by the
Crown in virtue of its prerogative, one man had
of killing and taking animals ferae naturae on the
land of another; and in like manner the game, when
killed or taken by virtue of the privilege, became
the absolute property of the owner of the franchise,
just as in the other case it becomes the absolute
property of the owner of the soil.
137. The word property is a word of the widest import.

Indeed when counsel were invited to do so they were unable
to suggest any more ample expression to convey the notion
of absolute ownership. The Act uses the word property
without qualification. If something less than absolute
ownership were intended then an appropriate qualification
in that regard could be expected to have been expressed.
141. Brennan J then said this[145]:

138. During argument the appellant sought to say that
property should not be given its ordinary meaning where
it appears in s 7 of the Act for two reasons: first, that it was
unlikely that the Queensland legislature would have
intended the word to have its ordinary and natural meaning
in relation to wild creatures when regard is had to their
natural and generally inaccessible state until reduced to
captivity, circumstances which the common law recognised
and gave effect to by elaborate rules with respect to them;
and, secondly, a reading of the Act as a whole dictated a
conclusion that the real intention of the legislature was to
do no more than protect and control fauna and regulate
any access to, or exploitation of fauna to which the Act
and regulations made under it referredfn140"[141].
It follows that, apart from the provisions of the

Act of which the appellant was ignorant, he was
entitled by law to keep the birds which he had
taken. But the Act changed the law. It vested the
property in all fauna in the Crown (s 7) and
prohibited the taking or keeping of fauna without
a licence, etc. The Act eliminated any right which
Aborigines or others might have acquired lawfully
to take and keep fauna as defined in the Act,
and any entitlement which Aborigines might have
enjoyed at common law to take and keep fauna
(assuming that such an entitlement had survived
the alienation by the Crown of land over which
Aborigines had traditionally hunted).
139. Walden v Henslerfn141"[142] is a case in which

fairly recent consideration was given by this Court to the
effect and operation of s 7 and s 54 of the Act. The appellant
there was an Aboriginal who was found in possession of a
partly-plucked turkey and a live turkey chick. He had shot
the turkey in the bush for food, and the chick was being
kept until it had grown sufficiently to be released in the
bush. The birds were fauna for the purposes of the Act,
and the appellant had no licence to take them. At the
relevant time the appellant believed, in accordance with
Aboriginal custom and his own practice of a lifetime, that
he was entitled to take the turkeys as bush tucker and
that he was committing no offence in so doing.
142. The law which Lord Westbury LC summarised owes

its origins no doubt to many 19th century and earlier, now
outdated, historical, indeed feudal conditions of
questionable relevance to Australia at any time: for
example, the ownership by a few of vast hunting estates,
aristocratic preoccupations with the Chase, hound, horse,
lure, snare, falconry, gun and dogsfn145"[146], uncertain
agricultural yields, the poverty suffered by many which
might tempt them to poach, the partial domestication of
game birds to enable them to be more vulnerable to the
landowners fowling piece, Royal privilege in respect of
certain animals, and competition between wealthy people
to collect and keep for ornamental purposes and as
curiosities exotic animals.
140. Brennan J in Walden [143] quoted what Lord

Westbury LC had stated in Blades v Higgs[144]:
143. But times and views about ecology and the

environment of which wild creatures are now indubitably
331
taken to be part[147], change. Darwins On the Origin of

Species which raised the consciousness and sensitivity of
Western Society to the importance and significance of the
natural world, was published in 1859[148]. By 1907 this
consciousness was manifesting itself by statements and
endeavours by concerned and informed people such as
Dudley Le Souef of the Australasian Ornithologists Union
who said in that year [t]he wild birds do not belong to us
to treat as we like[149]. The most effective way to ensure
the survival and protection of wild creatures, particularly
as the means of taking and destroying them became more
efficient, was for the State to legislate in the most
comprehensive way possible to obtain absolute dominion
over them and this I am satisfied the legislature of
Queensland did in enacting the Act. The Queensland
Parliament meant exactly what it said when it used the
word property in s 8A of the Animals and Birds Act 1921
(Q)fn149"[150] and when it repeated that word in each
subsequent enactment [151].
146. The whole scheme of the Act is consistent with no

intention other than an intention by the legislature to have
absolute property in all fauna occurring or present in the
State. And in my opinion there were and are no
impediments which prevented it from effecting that
intention by the legislation it enacted.
147. In support of his second argument the appellant
referred to the difficulty in reducing wild animals to
possession and of preventing them from migrating out of
the State as a reason for the reading down of the word
property in the Act. In this connexion an analogy may
be drawn with the way in which, in the United States,
natural gas and oil, which are fugitive minerals, are treated.
There, these are regarded as having some features in
common with wild animals. In that country ownership of
the land generally carries with it ownership of minerals
beneath it. The fact that natural gas or oil may migrate
from under one property to another, does not mean that a
property owner does not own absolutely and may not
exploit fully these minerals whilst they are underneath his
or her land[152].
144. The second argument of the appellant is that the text

of the Act as a whole requires property in s 7 to be read
as meaning no more than an extensive power to regulate
the protection and some limited exploitation of fauna. In
support of this submission reference was made to s 71(2)
which provides that fauna seized for non-payment of a
royalty shall be forfeited to Her Majesty, a phrase said
to be incompatible with pre-existing ownership by the
Crown. Reference was also made to the division of fauna
in s 6 into four classes (permanently protected fauna,
protected fauna, non-protected fauna and prohibited
fauna) and to the provisions relating to the circumstances
under which permits for taking fauna in different classes
are needed and may be obtained (ss 26, 27 and 53). These
provisions were said to indicate that the property vested
in the Crown under s 7 was less than absolute.
148. No question of native title was argued in Walden v

Hensler[153]. However the references by Brennan J to
the appellants former rights to take the birds and to
traditional entitlements before land was alienated by the
Crown suggest that his Honour was well alive to the
possible existence of native title rights which in fact were
declared to exist only five years later in Mabo v Queensland
[No 2][154] when the issue did arise. Mabo [No 2] being
a decision declaratory of the law did not alter the law by
creating some previously non-existing right. Native title
must have existed in 1987 when Walden was decided. Yet
Brennan J was in no doubt that the fauna which had been
taken by Mr Walden there were fauna which had vested in
the Crown. The case stands as clear authority for at least
the proposition that since its enactment s 7 has operated to
vest property in fauna in the Crown.
145. None of these indications in the Act is of sufficient

significance and force to detract from the ordinary and
natural meaning of property in s 7. But in any event there
are other parts of the Act which reinforce this natural
meaning. Section 67, particularly sub-s (2) is one:
149. There is some overseas authority for the proposition,

if authority be needed, that when a statutory declaration
of Crown ownership or property in fauna is coupled with
a statutory exception permitting or recognising an
aboriginal right or entitlement to take fauna (for example,
for sustenance or other purposes), native title rights to take
that fauna are not extinguished[155]. That distinction is
significant in the present case. The history of the legislation
here shows that since 1924, fauna has been legislatively
declared to be the property of the Crown; and from 1906
until 1974, Queensland legislation with respect to fauna
was expressed not to apply to any aboriginal killing any
native [animal or fauna] for his own food[156]. However
that exception was excluded from the Act, and there has
been no general statutory exception of that kind in force
in Queensland since then.
67(1) Subject to subsection (4), royalty at the

rates prescribed shall be payable to the Crown on
prescribed fauna.
(2) Notwithstanding this Act or any other Act or
law, payment of royalty on fauna pursuant to this
Act does not transfer property in that fauna from
the Crown.
(3) Rates of royalty may vary in respect of different
species of fauna.
(4) The regulations may exempt from the payment
of royalty species of fauna specified therein in
cases where that fauna is taken otherwise than in
contravention of this Act.
332
150. The question then becomes, is property in, that is

ownership by the Crown of the crocodiles which were taken
by Mr Yanner so inconsistent with any native title right to
it as to extinguish that right?
of them by the Magistrate of sufficient particularity to

enable, indeed to compel, the carrying out of the exercise
which the majority in Wik was unable to carry out in order
to decide whether the leases extinguished wholly or
partially any of the native title rights claimed.
151. In Wik Peoples v Queensland[157], Gummow J

emphasised that a person who seeks to contend that native
title has been extinguished by necessary implication from
the provisions of a statute carries a heavy burden. In the
same case, Kirby J said [158]:
156. That evidence and the findings I have summarised.

They point inexorably to a direct collision between the
custom or right claimed here, of taking and eating
crocodiles, and the ownership of them by the State of
Queensland. To the extent therefore that that custom or
right may be an aspect or incident of native title enjoyed
by the people of whom the appellant was one, that incident
or right (or custom, entitlement, tradition or practice),
however it might be designated, has been extinguished by
the Act under which the appellant was charged. Its exercise
was inconsistent with the ownership of the fauna by the
Crown[168]. Property means, in the Act, exactly that.
There is a strong presumption that a statute is

not intended to extinguish native title. The
intention to extinguish native title must be clear
and plain, either by the express provision of the
statute or by necessary implication. (footnotes
omitted)
152. In both Mabo [No 2] and Wik the Justices of this

Court discuss, at length, native title but attempt no
definition of it. Perhaps this is because not only is it, as it
has been described, fragile[159], but also because to nonindigenous people it may be a somewhat elusive concept.
But neither its fragility nor its elusiveness absolves the
Court from identifying native title rights in any case calling
for their consideration. In the former case Brennan J
discussed some of its nature and incidents[160]:
157. This case may be compared with Fejo v Northern

Territory[169]. There this Court held that a grant of land
in fee simple was an act of sovereignty and that the bundle
of rights going to make up a fee simple title necessarily
conflicted with and excluded native title. The word
property as used in s 7 of the Act has at least as exhaustive
an operation and meaning as fee simple. Fejo also held
that once such a grant was made it extinguished native
title for all time so that it would not be revived if and when
title lapsed and the Crown resumed ownership of the land
the subject of the earlier grant. And, as Gummow J said in
Wik[170], [i]f acts done before the commencement ... of
the Racial Discrimination Act 1975 (Cth) were effective
to extinguish or impair native title, the Native Title Act
1974 does not undo that result.
Native title has its origin in and is given its content

by the traditional laws acknowledged by and the
traditional customs observed by the indigenous
inhabitants of a territory. The nature and incidents
of native title must be ascertained as a matter of
fact by reference to those laws and customs. The
ascertainment may present a problem of
considerable difficulty ...
153. The language of the Justices of this Court when

reference is made to native title has tended to be couched,
as perhaps it only can be, in terms of incidents[161],
nature [162], rights [163], traditions [164],
customs[165] and entitlements [166].
158. The Native Title Act is not retrospective. It does not

operate to create new rights or to revive native title rights
that have been extinguished. In Western Australia v The
Commonwealth (Native Title Act Case), Mason CJ,
Brennan, Deane, Toohey, Gaudron and McHugh JJ
said[171]:
154. In Wik, in construing Queensland statutes enacted

long before Mabo [No 2] the Court was unable to answer
the question whether there had been an extinguishment
definitively because, as Toohey J pointed out[167], there
had not been evidence which focussed specifically on the
traditions, customs and practices of the particular aboriginal
group claiming the right which could be compared with
the rights conferred by the leases granted by the
Queensland government, to ascertain whether those rights
were necessarily inconsistent with the exercise of the
customs, traditions and practices of the aboriginal group
claiming the right.
An act which was wholly valid when it was done

and which was effective then to extinguish or
impair native title is unaffected by the Native Title
Act. Such an act neither needs nor is given force
and effect by the Act. But, as acts purporting to
extinguish or impair native title might be impugned
as inconsistent with the Racial Discrimination Act
if they were done after that Act came into
operation, the Parliament has chosen to include
certain legislative and executive acts of the Crown
within the definition of past acts. (footnote
omitted)
The Fauna Conservation Act (Q) relevantly answers the

description of an Act which was wholly valid and effective
when passed in relation to any native title right in respect
of the taking of fauna.
155. In this case there was evidence which was

uncontradicted and uncontested, relevantly directed to the
rights, traditions, customs and practices of the aboriginal
group of which the appellant was a member, and findings
333
159. On the view that I take of the case it is unnecessary

to go any further. The decision of the majority of the Court
of Appeal of Queensland was correct. I would dismiss the
appeal with costs.
[29]
[1]
[30]
The name of the tribe is sometimes spelled

Gungaletta. The spelling Gangalidda was given
by the appellant in his interview with police.
[2]
Native Title Act, s 211(1)(a) and (3)(a) and (b).
[3]
Native Title Act, s 211(1)(b).
[4]
Native Title Act, s 211(1)(c).
[5]
Native Title Act, s 211(2).
[6]
Justices Act 1886 (Q), s 209.
[7]
Eaton v Yanner; Ex parte Eaton unreported, Court
of Appeal of Queensland, 27 February 1998.
[8]
Native Animals Protection Act 1906 (Q), s 9(c). See
also the Animals and Birds Act 1921 (Q), s 17(b)
(which extended the exception to native birds as
well as animals), the Fauna Protection Act 1937
(Q), s 25, and the Fauna Conservation Act 1952
(Q), s 78 (which further modified the exception by
limiting its operation to Aboriginals not in
employment on terms that included the provision
of food by the employer).
[9]
The Fauna Authority was defined by s 5 as the
Minister for the time being administering the Fauna
Act and subject to the Minister the Director of
National Parks and Wildlife appointed under the
National Parks and Wildlife Act 1975 (Q).
[10] s 5.
[11] s 5.
[12] s 5.
[13] s 6.
[14] s 22.
[15] s 24.
[16] s 25.
[17] s 24A.
[18] s 27(1).
[19] Fauna Act, Pt VI.
[20] s 60.
[21] s 54(1)(b)(i).
[22] s 54(1)(b)(ii).
[23] s 54(2).
[24] Animals and Birds Act 1921 (Q), s 8B (inserted by
s 2(4) of the Animals and Birds Act Amendment Act
1924 (Q)); Fauna Protection Act 1937 (Q), s 16;
Fauna Conservation Act 1952 (Q), s 56.
[25] Queensland, Legislative Assembly, Parliamentary
Debates (Hansard), 12 September 1924 at 824-826.
[26] Bentham, An Introduction to the Principles of
Morals and Legislation, ed by W Harrison (1948)
at 337, n 1; K Gray and S F Gray, The Idea of
Property in Land, in Bright and Dewar (eds), Land
Law: Themes and Perspectives, (1998) 15 at 15.
[27] See, for example, Minister of State for the Army v
Dalziel (1944) 68 CLR 261 at 285 per Rich J.
[28] Gray, Property in Thin Air, (1991) 50 Cambridge
Law Journal 252 at 252.
[31]
[32]
[33]
[34]
[35]
[36]
[37]
[38]
[39]
[40]
[41]
[42]
[43]
[44]
[45]
[46]
334
See, for example, Kohler and Palmer, Information

as Property and Magnusson, Proprietary Rights
in Human Tissue, in Palmer and McKendrick (eds),
Interests in Goods , 2nd ed (1998) 3 and 25
respectively.
See, for example, Colbeam Palmer Ltd v Stock
Affiliates Pty Ltd (1968) 122 CLR 25 at 34 per
Windeyer J.
Gray, Property in Thin Air, (1991) 50 Cambridge
Law Journal 252 at 299.
Jeremy Bentham recognised this long ago. Bentham
pointed out that in common speech in the phrase
the object of a mans property, the words the
object of are commonly left out; and by an ellipsis,
which, violent as it is, is now become more familiar
than the phrase at length, they have made that part
of it which consists of the words a mans property
perform the office of the whole. See An
Introduction to the Principles of Morals and
Legislation, ed by W Harrison (1948) at 337, n 1.
K Gray and S F Gray, The Idea of Property in
Land, in Bright and Dewar (eds), Land Law:
Themes and Perspectives, (1998) 15 at 16.
Jones v Skinner (1835) 5 LJ Ch (NS) 87 at 90 per
Lord Langdale MR. See also Commissioner of
Stamp Duties (Q) v Donaldson (1927) 39 CLR 539
at 550 per Isaacs ACJ; In re Prater; Desinge v Beare
(1888) 37 Ch D 481 at 483 per Lord Halsbury LC,
486 per Cotton LJ.
Jones v Skinner (1835) 5 LJ Ch (NS) 87 at 90 per
Lord Langdale MR.
Pollock, A First Book of Jurisprudence, 4th ed
(1918) at 178.
Blackstone, Commentaries, vol II at 14, 391, 395.
Case of Swans (1592) 7 Co Rep 15b at 17b [77 ER
435 at 438]; Blades v Higgs (1865) 11 HL Cas 621
at 638 [11 ER 1474 at 1481].
Case of Swans (1592) 7 Co Rep 15b at 17b [77 ER
435 at 438].
Blades v Higgs (1865) 11 HL Cas 621 at 631 [11
ER 1474 at 1478].
252 US 416 at 434 (1920).
See also Geer v Connecticut 161 US 519 at 538539, 541-542 (1896) per Field J, 543-544 per
Harlan J; Toomer v Witsell 334 US 385 (1948);
Baldwin v Montana Fish and Game Commission
436 US 371 (1978); Hughes v Oklahoma 441 US
322 (1979).
Animals and Birds Act 1921 (Q), s 8B (inserted by
the Animals and Birds Act Amendment Act 1924
(Q), s 2(4)).
(1955) 92 CLR 630 at 641 per Dixon CJ, Williams,
Webb, Fullagar and Kitto JJ.
Toomer v Witsell 334 US 385 at 402 (1948) per
Vinson CJ (footnote omitted).
Queensland, Legislative Assembly, Parliamentary
Debates (Hansard), 12 September 1924 at 825.
[47]
[48]
[49]
[50]
[51]
[52]
[53]
[54]
[55]
[56]
[57]
[58]
[59]
[60]
[61]
[62]
[63]
[64]
[65]
[66]
[67]
Pound, An Introduction to the Philosophy of Law

(rev ed) (1954) at 111.
ss 24, 24A, 25, 27, 30, 60.
ss 71(2), 83(3).
s 67.
s 54(1)(a).
Native Title Act, s 223(1)(a).
Native Title Act, s 223(1)(b).
Native Title Act, s 223(1)(c); Mabo v Queensland
[No 2] (1992) 175 CLR 1.
Mabo v Queensland [No 2] (1992) 175 CLR 1 at
69 per Brennan J, 110 per Deane and Gaudron JJ;
Western Australia v The Commonwealth (Native
Title Act Case) (1995) 183 CLR 373 at 439 per
Mason CJ, Brennan, Deane, Toohey, Gaudron and
McHugh JJ; Wik Peoples v Queensland (1996) 187
CLR 1 at 84-85 per Brennan CJ; Fejo v Northern
Territory (1998) 72 ALJR 1442 at 1451 per
Gleeson CJ, Gaudron, McHugh, Gummow, Hayne
and Callinan JJ, 1468 per Kirby J; 156 ALR 721 at
736, 759.
(1998) 72 ALJR 1442 at 1451; 156 ALR 721 at 736.
See also (1998) 72 ALJR 1442 at 1466 per Kirby J;
156 ALR 721 at 756-757.
Wik Peoples v Queensland (1996) 187 CLR 1 at 85
per Brennan CJ, 125 per Toohey J, 146-147 per
Gaudron J, 185 per Gummow J, 247 per Kirby J.
Melbourne Corporation v Barry (1922) 31 CLR 174
at 188-190 per Isaacs J, 211- 212 per Higgins J;
Williams v Melbourne Corporation (1933) 49 CLR
142 at 148-149 per Starke J, 155-156 per Dixon J;
Brunswick Corporation v Stewart (1941) 65 CLR
88 at 93-94 per Rich ACJ, 95 per Starke J;
Municipal Corporation of City of Toronto v Virgo
[1896] AC 88 at 93-94.
(1982) 158 CLR 327 at 358.
K Gray and S F Gray, The Idea of Property in
Land, in Bright and Dewar (eds), Land Law:
Themes and Perspectives, (1998) 15 at 27.
(1987) 163 CLR 561.
s 5.
s 5.
Blades v Higgs (1865) 11 HL Cas 621 at 631 [11
ER 1474 at 1478].
Native Animals Protection Act 1906 (Q), s 9(c). The
Animals and Birds Act 1921 (Q), s 17(b), the Fauna
Protection Act 1937 (Q), s 25 and the Fauna
Conservation Act 1952 (Q), s 78 were to similar
effect.
(1987) 163 CLR 561 at 566-567.
In The Common Law (1882), Oliver Wendell
Holmes Jr said (at 215):
When we say that a man owns a thing, we affirm
directly that he has the benefit of the consequences
attached to a certain group of facts, and, by
implication, that the facts are true of him. The
important thing to grasp is, that each of these legal
compounds, possession, property, and contract, is
to be analyzed into fact and right, antecedent and

consequent, in like manner as every other.
In a subsequent passage, he pointed out (at 220):
The law [of property] does not enable me to use
or abuse this book which lies before me. That is a
physical power which I have without the aid of the
law. What the law does is simply to prevent other
men to a greater or less extent from interfering with
my use or abuse. fnB67[68]
cf Planned Parenthood of Southeastern
Pennsylvania v Casey, Governor of Pennsylvania
505 US 833 at 954 (1992) per Rehnquist CJ (White,
Scalia and Thomas JJ agreeing).
[69]
[70]
[71]
[72]
[73]
[74]
[75]
[76]
[77]
s 7(1).
(1859) Bell 93 [169 ER 1180].
Wik Peoples v Queensland (1996) 187 CLR 1 at
169.
Ben Ward & Ors on behalf of the Miriuwung and
Gajerrong People; Walden & Ors; Northern Land
Council; and the Cape York Land Council
(Aboriginal Corporation).
Attorneys-General for the Commonwealth, South
Australia, Western Australia and the Northern
Territory.
Mabo v Queensland [No 2] (1992) 175 CLR 1 at
69-70, 111; Wik (1996) 187 CLR 1 at 124-126, 166,
203, 238; cf Ward v Western Australia (1998) 159
ALR 483 at 504.
Mabo [No 2] (1992) 175 CLR 1 at 70.
The Fauna Act has since been repealed by the
Nature Conservation Act 1992 (Q), which came into
force on 19 December 1994.
Section 5 provided:
take includes (a) in relation to fauna, hunt, shoot, kill,
poison, net, snare, spear, trap, catch, pursue,
disturb, stupefy, disable, pluck, injure, destroy
or damage or attempt or permit any of those
acts.[78]
Section 5 provided:
keep includes have in possession or under control
in any place, whether for the use of or benefit of
the person of whom the term is used or of another
person, and although another person has the actual
possession or custody of the thing in question.[79]
Eaton v Yanner; Ex parte Eaton, unreported, 27
February 1998.
[80] See Mabo [No 2] (1992) 175 CLR 1 at 70, 110; cf
Grattan and McNamara, The Common Law
335
[81]
[82]
[83]
[84]
[85]
[86]
[87]
[88]
[89]
[90]
[91]
[92]
[93]
[94]
[95]
[96]
[97]
[98]
[99]
[100]
[101]
[102]
[103]
[104]
[105]
[106]
Construct of Native Title, (1999) 8 Griffith Law

Review 50 at 63-65.
A term also defined in s 5; see Section VI of these
reasons.
(1992) 175 CLR 1 at 58.
See Western Australia v The Commonwealth (Native
Title Act Case) (1995) 183 CLR 373 at 459; The
Commonwealth v Tasmania (The Tasmanian Dam
Case) (1983) 158 CLR 1 at 274-275.
Wik (1996) 187 CLR 1 at 177.
(1996) 187 CLR 1 at 169.
Mabo [No 2] (1992) 175 CLR 1 at 66-67.
Mabo [No 2] (1992) 175 CLR 1 at 89.
Mabo [No 2] (1992) 175 CLR 1 at 58.
Mabo [No 2] (1992) 175 CLR 1 at 57.
Mabo [No 2] (1992) 175 CLR 1 at 109-110.
Mabo [No 2] (1992) 175 CLR 1 at 61, 110.
Fejo v Northern Territory (1998) 72 ALJR 1442 at
1452, 1454; 156 ALR 721 at 737, 739.
(1996) 187 CLR 1.
(1998) 72 ALJR 1442 at 1451-1454; 156 ALR 721
at 736-740.
Fejo (1998) 72 ALJR 1442 at 1452; 156 ALR 721
at 737.
Mabo [No 2] (1992) 175 CLR 1 at 58.
Commentaries on the Laws of England, vol 2 at 177.
(1811) 18 Ves Jun 384 at 390 [34 ER 362 at 364].
See also Commissioner of Stamp Duties (NSW) v
Perpetual Trustee Co Ltd (1915) 21 CLR 69 at 77,
87; In re Waugh (deceased) [1955] NZLR 1129 at
1130.
Judicature Act 1876 (Q), s 5(4); Property Law Act
1974 (Q), s 17.
Native Title Act Case (1995) 183 CLR 373 at 454;
Wik (1996) 187 CLR 1 at 167-168.
Native Title Act Case (1995) 183 CLR 373 at 435438; North Ganalanja Aboriginal Corporation v
Queensland (1996) 185 CLR 595 at 613-614.
For example, Fauna Conservation Act 1952 (Q),
repealed by s 4(1) of the Fauna Act.
cf McQuaker v Goddard [1940] 1 KB 687 at 695,
699.
Geer v Connecticut 161 US 519 at 539-540 (1896).
Field J was in dissent, but the majority decision was
overruled in Hughes v Oklahoma 441 US 322
(1979).
Blades v Higgs (1865) 11 HL Cas 621 [11 ER 1474].
In May v Burdett (1846) 9 QB 101 at 110-111 [115
ER 1213 at 1217], Lord Denman CJ said:
[w]hoever keeps an animal accustomed to attack
and bite mankind, with knowledge that it is so
accustomed, is prima facie liable in an action on
the case at the suit of any person attacked and
injured by the animal, without any averment of
negligence or default in the securing or taking care
of it; Besozzi v Harris (1858) 1 F & F 92 [175 ER
640]. It is unnecessary to consider, for the purposes
of construing s 7 of the Fauna Act as enacted in
1974, the effect, if any, of the subsequent decision
[107]
[108]
[109]
[110]
[111]
[112]
[113]
[114]
[115]
[116]
[117]
[118]
[119]
[120]
[121]
of Burnie Port Authority v General Jones Pty Ltd

(1994) 179 CLR 520 on this branch of the tort law.
Pollock and Wright, Possession in the Common
Law, (1888) at 231.
Section 7(1) was amended on 15 May 1984 by the
Fauna Conservation Act and Another Act
Amendment Act 1984 (Q) (the 1984 Amendment
Act), s 5. The words otherwise than in
contravention of this Act were inserted after the
phrase taken or kept. Nothing turns on this
amendment.
Breen v Williams (1996) 186 CLR 71 at 80-81, 8890, 101-102, 126-129.
Wheeler v Baldwin (1934) 52 CLR 609 at 632-633.
National Trustees Executors and Agency Co of
Australasia Ltd v Federal Commissioner of
Taxation (1954) 91 CLR 540 at 583.
Breen v Williams (1996) 186 CLR 71 at 81, 90;
Cadbury Schweppes Inc v FBI Foods Ltd [1999] 1
SCR 142 at 156.
Some Fundamental Legal Conceptions as Applied
in Judicial Reasoning, (1913) 23 Yale Law Journal
16 at 21.
The Commonwealth v WMC Resources Ltd (1998)
194 CLR 1 at 73-74; Don King Productions Inc v
Warren [1999] 3 WLR 276 at 314-316; [1999] 2
All ER 218 at 232-234.
Wily v St George Partnership Banking Ltd (1999)
84 FCR 423 at 431.
Some Fundamental Legal Conceptions as Applied
in Judicial Reasoning, (1913) 23 Yale Law Journal
16 at 21-22. See also Gray and Gray, The Idea of
Property in Land, in Bright and Dewar (eds), Land
Law: Themes and Perspectives, (1998) 15 at 2730.
(1997) 191 CLR 471 at 544-545.
Maguire v Simpson (1977) 139 CLR 362 at 371373. See Finn, Claims Against the Government
Legislation, in Finn (ed), Essays on Law and
Government, vol 2, The Citizen and the State in the
Courts, (1996) 25 at 26-32.
Leeming, The Liability of the Government under
the Constitution, (1998) 17 Australian Bar Review
215 at 216-219.
Crown Proceedings Act 1980 (Q), s 4(2)(a) and
Sched.
Section 108 states:
Every law in force in a Colony which has become
or becomes a State, and relating to any matter within
the powers of the Parliament of the Commonwealth,
shall, subject to this Constitution, continue in force
in the State; and, until provision is made in that
behalf by the Parliament of the Commonwealth, the
Parliament of the State shall have such powers of
alteration and of repeal in respect of any such law
as the Parliament of the Colony had until the Colony
became a State.[122]
336
See Sue v Hill (1999) 73 ALJR 1016 at 1034-1035,

1049; 163 ALR 648 at 673-674, 693. Section
31(3)(a) of the Acts Interpretation Act 1954 (Q)
defined the Crown but merely in terms of the
particular monarch at the time.
[133] Fejo (1998) 72 ALJR 1442 at 1452; 156 ALR 721

at 737.
[134] (1996) 187 CLR 1 at 171. See Grattan and
McNamara, The Common Law Construct of
Native Title, (1999) 8 Griffith Law Review 50 at
78.
[135] (1996) /au/cases/cth/high_ct/187clr1.html187
CLR 1 at 203.
[136] (1999) 73 ALJR 345; 160 ALR 638.
[137] (1999) 73 ALJR 345 at 372; 160 ALR 638 at 674675.
[138] (1995) 183 CLR 373 at 474.
[139] In R v Sundown (1999) 170 DLR (4th) 385 at 398399, the Supreme Court of Canada gave some
consideration to the relevance of the means by
which a treaty right to hunt may be pursued in that
country by First Nation peoples. However the
different history of that country, its first inhabitants,
treaties made there and its legislation might give
rise to different considerations from those of
relevance to this country. Similarly in McRitchie v
Taranaki Fish and Game Council [1999] 2 NZLR
139 the different legislative regime and the Treaty
of Waitangi give rise to matters which are not
relevant to this case.
[140] For a discussion of the evidentiary problems thrown
up by a case of this kind see Mabo v State of
Queensland [1992] 1 Qd R 78 at 84ff per Moynihan
J.
[141] By Order-in-Council dated 29 August 1974 and
published in the Government Gazette on 31 August
1974, the operation of the Act was extended to cover
crocodiles.
[142] (1987) 163 CLR 561.
[143] Walden v Hensler (1987) 163 CLR 561 at 566.
[144] (1865) 11 HL Cas 621 at 631 [11 ER 1474 at 14781479].
[145] Walden v Hensler (1987) 163 CLR 561 at 566-567.
[146] For a discussion of the changing nature of these
preoccupations, see Itzkowitz, Peculiar Privilege:
A Social History of English Foxhunting 1753-1885
(1977).
[147] See The Crown v Murphy (1990) 64 ALJR 593 at
596-597; 95 ALR 493 at 498-499.
[148] For a discussion of Darwins influence in this
respect, see Verney, Animals in Peril (1979) at 176184.
[149] Hutton and Connors, A History of the Australian
Environment Movement (1999) at 21. For a
discussion of the emergence and manifestation of
this consciousness at the same time in the United
States and Europe, see Verney, Animals in Peril
(1979); for a discussion of its emergence and
manifestation in Britain, see Ritvo, Animals in
Nineteenth-Century Britain, in Manning and
Serpell (eds), Animals and Human Society (1994)
106.
[150] Section 8A was inserted by Animals and Birds Act
Amendment Act 1924 (Q), s 2(4).
[123] This provided:

Petitioner may sue as in ordinary cases. Any
such petitioner may sue such nominal defendant at
law or in equity in any competent court and every
such case shall be commenced in the same way and
the proceedings and rights of parties therein shall
as nearly as possible be the same and judgment and
costs shall follow on either side as in an ordinary
case between subject and subject at law or in
equity.[124]
Section 5 defined open season to mean, in relation
to any fauna, the period declared by Order in
Council under this Act during which that fauna may
be taken.
[125] [1921] 1 AC 401.
[126] [1921] 1 AC 401 at 409. See also The
Commonwealth v New South Wales (1923) 33 CLR
1 at 45; Perth Corporation v Crystal Park Ltd
(1940) 64 CLR 153 at 168; Bathurst City Council v
PWC Properties Pty Ltd (1998) 72 ALJR 1470 at
1480-1483; 157 ALR 414 at 427-431.
[127] (1987) 163 CLR 561 at 582.
[128] See Case of Swans (1592) 7 Co Rep 15b [77 ER
435]; Chitty, A Treatise on the Law of the
Prerogatives of the Crown, (1820) at 142-144. As
to the meaning of royalties of the Crown, see
Stanton v Federal Commissioner of Taxation (1955)
92 CLR 630 at 641.
[129] Earl of Selborne LC in Bradlaugh v Clarke (1883)
8 App Cas 354 at 358 said that it is an incontestable
proposition of law, that where a penalty is created
by statute, and nothing is said as to who may recover
it, and it is not created for the benefit of a party
grieved, and the offence is not against an individual,
it belongs to the Crown, and the Crown alone can
maintain a suit for it. This construction of the
Fauna Act is supported by the saving provision in
s 84 and by s 85 which provided that all penalties,
costs, fees, royalty and compensation recovered
under this Act shall be paid into and form part of
the Consolidated Revenue Fund.
[130] The Fauna Act was amended by: Fauna Conservation
Act and Another Act Amendment Act 1976 (Q), Pt II;
Fauna Conservation Act Amendment Act 1979 (Q);
the 1984 Amendment Act, Pt II; Deer Farming Act
1985 (Q), s 4(1), Sched 2; Fauna Conservation Act
and Another Act Amendment Act 1989 (Q), Pt III.
[131] (1996) 187 CLR 1.
[132] (1996) 187 CLR 1 at 185. See also Fejo (1998) 72
ALJR 1442 at 1451; 156 ALR 721 at 736.
337
[151] Fauna Protection Act 1937 (Q), s 15; Fauna

Conservation Act 1952 (Q), s 6(2).
[152] A landowner has, generally speaking, a right to
extract the gas and oil beneath his or her land,
including gas and oil which is there by the power
of self-transmission (Brown v Spilman 155 US
665 (1895); Ohio Oil Company v Indiana (No 1)
177 US 190 (1900); DuLaney v Oklahoma State
Department of Health 868 P 2d 676 (1993)).
However, ownership of gas and oil is subject to the
possibility of escape and loss of title. This is
reflected in what is known as the rule of capture,
which is that the owner of a tract of land acquires
title to the oil or gas he or she produces from wells
on his or her land even though part of the oil or gas
may have migrated from adjoining lands, without
incurring liability to the adjoining land for drainage
(38 Am Jur 2d, Gas and Oil at 10). Thus, a
landowner is entitled to extract gas or oil from his
property to capture the contents of the pool
regardless whether this diminishes the availability
of the gas or oil to his neighbours.
[153] (1987) 163 CLR 561.
[154] (1992) 175 CLR 1.
[155] R v Alphonse (1993) 80 BCLR (2d) 17 at 26-27.
See also Ward v Western Australia (1998) 159 ALR
483 at 615.
[156] See Native Animals Protection Act 1906 (Q), s 9(c);
Animals and Birds Act 1921 (Q), ss 8A, 17(b);
Fauna Protection Act 1937 (Q), ss 15, 25; Fauna
Conservation Act 1952 (Q), ss 6(2), 78.
[157] (1996) 187 CLR 1 at 185.
[158] Wik Peoples v Queensland (1996) 187 CLR 1 at
247.
[159] See, for example, Fejo v Northern Territory (1998)
72 ALJR 1442 at 1466; 156 ALR 721 at 756.
[160] Mabo v Queensland [No 2] (1992) 175 CLR 1 at
58.
[161] See, for example, Mabo v Queensland [No 2]

(1992) 175 CLR 1 at 58 per Brennan J; Wik Peoples
v Queensland (1996) 187 CLR 1 at 185 per
Gummow J.
v Queensland (1996) 187 CLR 1 at 185 per
Gummow J.
v Queensland (1996) 187 CLR 1 at 126 per Toohey
J, 185, 203 per Gummow J.
(1992) 175 CLR 1 at 58, 61 per Brennan J; Wik
Peoples v Queensland (1996) 187 CLR 1 at 126
per Toohey J; cf Fejo v Northern Territory (1998)
72 ALJR 1442 at 1452; 156 ALR 721 at 737.
(1992) 175 CLR 1 at 58, 61 per Brennan J; Wik
Peoples v Queensland (1996) 187 CLR 1 at 126
per Toohey J; cf Fejo v Northern Territory (1998)
72 ALJR 1442 at 1452; 156 ALR 721 at 737.
(1992) 175 CLR 1 at 61-62 per Brennan J; Walden
v Hensler (1987) 163 CLR 561 at 565 per Brennan
J.
126.
[168] Mabo v Queensland [No 2] (1992) 175 CLR 1 at
50, 64, 68-70, 89-90, 110-111, 195-196; Western
Australia v The Commonwealth (Native Title Act
Case) (1995) 183 CLR 373 at 418, 422, 433-434,
452-453, 492, 495; Wik Peoples v Queensland
(1996) 187 CLR 1 at 84-86, 126, 132-133, 135, 146147, 168-169, 185, 203, 214, 243, 244, 247.
[169] (1998) 72 ALJR 1442; 156 ALR 721.
167-168.
[171] (1995) 183 CLR 373 at 454.
338
339
Note from E-LAW U.S.: This opinion contains several spelling mistakes made in the original opinion from which we transcribed.
Also, our original is illegible in two spots. The first omission is of one or two letters. The second is of about 10 words. These two spots
are noted in the text in [brackets].
IN THE COURT OF APPEAL OF TANZANIA

AT DAR ES SALAAM
(CORAM: NYALALI, C.J., MAKAME, J.K., and KISANGA, J.A.)
CIVIL APPEAL NO. 31 OF 1994
HON. ATTORNEY GENERAL ............... APPELLANT
VERSUS
1. LOHAY AKNONAAY
2. JOSEPH LOHAY
RESPONDENT
(Appeal from the Judgement of the High Court of Tanzania at Arusha)
(Justice Munuo)
dated 21st October, 1993

in
The High Court Miscellaneous Civil Cause No. 1 of 1993
340
JUDGEMENT OF THE COURT
was wide-spread re-allocation of land between the villagers

concerned. Among those affected by the operation were
the respondents, who were moved away from the land they
had acquired during the colonial days to another piece of
land within the same village. The respondents were
apparently not satisfied with this reallocation and it was
for the purpose of recovering their original piece of land
that they instituted the legal action already mentioned.
Before the case was concluded in 1989, subsidiary
legislation was made by the appropriate Minister under
the Land Development (Specified Areas) Regulations,
1986 read together with the Rural Lands (Planning and
Utilization) Act, 1973, Act No. 14 of 1973 extinguishing
all customary rights in land in 92 villages listed in a
schedule. This is the Extinction of Customary Land Right
Order, 1987 published as Government Notice No. 88 of
13th February 1987. The order vested the land concerned
in the respective District Councils having jurisdiction over
the area where the land is situated. The respondents village
is listed as Number 22 in that schedule [unreadable text:
about 10 words] Order, including the respondents village,
are in areas within Arusha Region.
NYALALI, C.J.:
This case clearly demonstrates how an understanding of
our Countrys past is crucial to a better understanding of
our present, and why it is important while understanding
our past, to avoid living in that past. The respondents,
namely, Lohay Akonaay and Joseph Lohay are father and
son, living in the village of Kambi ya Simba, Mbulumbulu
Ward, [unreadable name of district] ...bald District, in
Arusha Region. In January 1987 they successfully
instituted a suit in the Court of the Resident Magistrate for
Arusha Region for recovery of a piece of land held under
customary law. An eviction order was subsequently issued
for eviction of the judgement debtors and the respondents
were given possession of the piece of land in question.
There is currently an appeal pending in the High Court at
Arusha against the judgement of the trial court. This is
Arusha High Court Civil Appeal No. 6 of 1991. While this
appeal was pending, a new law, which came into force on
the 28th December 1992, was enacted by the Parliament,
declaring the extinction of customary rights in land,
prohibiting the payment of compensation for such
extinction, ousting the jurisdiction of the courts,
terminating proceedings pending in the courts, and
prohibiting the enforcement of any court decision or decree
concerning matters in respect of which jurisdiction was
ousted. The law also established, inter alia, a tribunal with
exclusive jurisdiction to deal with the matters taken out of
the jurisdiction of the courts. This new law is the Regulation
of Land Tenure (Established Villages) Act, 1992, Act No.
22 of 1992, hereinafter called Act No. 22 of 1992.
The Memorandum of appeal submitted to us for the

appellant contains nine grounds of appeal, two of which,
that is ground number 8 and 9 were abandoned in the course
of hearing the appeal. The remaining seven grounds of
appeal read as follows:
1.
Aggrieved by this new law, the respondents petitioned

against the Attorney-General in the High Court, under
articles 30 (3) and 26 (2) of the Constitution of the United
Republic of Tanzania, for a declaration to the effect that
the new law is unconstitutional and consequently null and
void. The High Court, Munuo, J., granted the petition and
ordered the new law struck off the statute book. The
Attorney-General was aggrieved by the judgement and
order of the High Court, hence he sought and obtained
leave to appeal to this Court. Mr. Felix Mrema, the learned
Deputy Attorney-General, assisted by Mr. Sasi Salula, State
Attorney, appeared for the Attorney-General, whereas
Messrs Lobulu and Sangka, learned advocates, appeared
for the respondents.
2.
3.
4.
5.
From the proceedings in this court and the court below, it

is apparent that there is no dispute between the parties that
during the colonial days, the respondents acquired a piece
of land under customary law. Between 1970 and 1977 there
was a country-wide operation undertaken in the rural areas
by the Government and the ruling party, to move and settle
the majority of the scattered rural population into villages
on the mainland of Tanzania. One such village was Kambi
ya Simba village, where the residents reside. During this
exercise, commonly referred to as Operation Vijiji, there
6.
341
That the Honourable Trial Judge erred in fact and

law in holding that a deemed Right of Occupancy
as defined in section 2 of the Land Ordinance Cap
113 is property for the purposes of Article 24(1)
of the Constitution of the United Republic of
Tanzania 1977 and as such its deprivation is
unconstitutional.
That the Honourable Trial Judge erred in law and
fact in holding that section 4 of the Regulation of
Land Tenure (Established Villages) Act, 1992,
precludes compensation for unexhausted
improvements.
fact in holding that any statutory provision ousting
the jurisdiction of the courts is contrary to the
Constitution of the United Republic of Tanzania.
That the Honourable Trial Judge erred in law by
holding that the whole of the Regulation of Land
Tenure (Established Villages) Act 1992 is
unconstitutional.
fact in holding that the Regulation of Land Tenure
(Established Villages) Act 1992 did acquire the
Respondents land and reallocated the same to other
people and in holding that the Act was
discriminatory.
That having declared the Regulation of Land Tenure
(Established Villages) Act 1992 unconstitutional, the
Honourable Judge erred in law in proceeding to
strike it down.
7.
The Honourable Trial Judge erred in fact by quoting

and considering a wrong and non-existing section
of the law.
who depend on land for their livelihood. Article 24 of the

Constitution of the United Republic of Tanzania recognizes
the right of every person in Tanzania to acquire and own
property and to have such property protected. Sub-article
(2) of that provision prohibits the forfeiture or expropriation
of such property without fair compensation. It is the
contention of the Attorney-General, as eloquently
articulated before us by Mr. Felix Mrema, Deputy
Attorney-General, that a right of occupancy which
includes customary rights in land as defined under section
2 of the Land Ordinance, Cap 113 of the Revised Laws of
Tanzania Mainland, is not property within the meaning of
article 24 of the Constitution and is therefore not protected
by the Constitution. The Deputy Attorney-General cited a
number of authorities, including the case of AMODU
TIJAN VS THE SECRETARY SOUTHERN NIGERIA
(1921) 2 A.C. 399 and the case of MTORO BIN
MWAMBA VS THE ATTORNEY GENERAL (1953) 20
E.A.C.A. 108, the latter arising from our own jurisdiction.
The effect of these authorities is that customary rights in
land are by their nature not rights of ownership of land,
but rights to use or occupy land, the ownership of which is
vested in the community or communal authority. The
Deputy Attorney-General also contended to the effect that
the express words of the Constitution under Article 24
makes the right to property, subject to the relevant laws
of the land.
The respondents on their part submitted two notices before

the hearing of the appeal. The first is a Notice of Motion
purportedly under Rule 3 of the Tanzania Court of Appeal
Rules, 1979, and the second, is a Notice of Grounds for
affirming the decision in terms of Rule 93 of the same.
The Notice of Motion sought to have the court strike out
the grounds of appeal numbers 1, 5, 8 and 9. After hearing
both sides, we were satisfied that the procedure adopted
by the respondents was contrary to rules 45 and 55 which
require such an application to be made before a single
judge. We therefore ordered the Notice of Motion to be
struck off the record.
As to the Notice of Grounds for affirming the decision of
the High Court, it reads as follows:
1.
2.
3.
4.
5.
6.
7.
As the appellant had not pleaded in his Reply to the

Petition facts or points of law showing controversy,
the court ought to have held that the petition stands
unopposed.
Since the Respondents have a court decree in their
favour, the Legislature cannot nullify the said decree
as it is against public policy, and against the
Constitution of Tanzania.
As the Respondents have improved the land, they
are by that reason alone entitled to compensation in
the manner stipulated in the Constitution and that
compensation is payable before their rights in land
could be extinguished.
Possession and use of land constitute property
capable of protection under the Constitution of
Tanzania. Act No. 22 is therefore unconstitutional
to the extent that it seeks to deny compensation for
loss of use; it denies right to be heard before
extinction of the right.
Operation Vijiji gave no person a right to occupy or
use somebody elses land, hence no rights could have
been acquired as a result of that operation.
The victims of Operation Vijiji are entitled to
reparations, The Constitution cannot therefore be
interpreted to worsen their plight.
The land is the Respondents only means to sustain
life. Their rights therein cannot therefore be
extinguished or acquired in the manner the
Legislature seeks to do without violating the
Respondents constitutional right to life.
Mr. Lobulu for the respondents has countered Mr. Mremas

contention by submitting to the effect that whatever the
nature of customary rights in land, such rights have every
characteristic of property, as commonly known, and
therefore fall within the scope of article 24 of the
Constitution. He cited a number of authorities in support
of that position, including the Zimbabwe case of
HEWLETT VS MINISTER OF FINANCE (1981) ZLR
573, and the cases of SHAH VS ATTORNEY-GENERAL
(N.2) 1970 EA 523 and the scholarly article by Thomas
Allen, lecturer in Law, University of Newcastle, published
in the International and Comparative Law Quarterly, Vol.
42, July 1993 on Commonwealth constitutions and the
right not to be deprived of property.
Undoubtedly the learned trial judge, appears to have been
of the view that customary or deemed rights of occupancy
are properly within the scope of article 24 of the
Constitution when she stated in her judgement:
I have already noted earlier on that the petitioner
legally possess the suit land under customary land
tenure under section 2 of the Land Ordinance cap
113. They have not in this application sought any
special status, rights or privileges and the court
has not conferred any on the petitioners. Like all
other law abiding citizens of this country, the
petitioners are equally entitled to basic human
rights including the right to possess the deemed
rights of occupancy they lawfully acquired
pursuant to Article 24 (1) of the Constitution and
section 2 of the Land Ordinance, Cap 113.
For purposes of clarity, we are going to deal with the

grounds of appeal one by one, and in the process, take into
account the grounds submitted by the respondents for
affirming the decision wherever they are relevant to our
decision.
Ground number one raises an issue which has far-reaching
consequences to the majority of the people of this country,
342
In framing laws relating to the holding or transfer

of land and natural resources, the Administering
Authority shall take into consideration native laws
and customs, and shall respect the rights and
safeguard the interests, both present and future,
of the native population. No native land or natural
resources may be transferred except between
natives, save with the previous consent of the
competent public authority. No real rights over
native land or natural resources in favour of nonnatives may created except with the same consent.
Is the trial judge correct? We have considered this

momentous issue with the judicial care it deserves. We
realize that if the Deputy Attorney-General is correct, then
most of the inhabitants of the Tanzania mainland are no
better than squatters in their own country. It is a serious
proposition. Of course if that is the correct position in law,
it is our duty to agree with the Deputy Attorney-General,
without fear or favour, after closely examining the relevant
law and the principles underlying it.
In order to ascertain the correct legal position, we have
had to look at the historical background of the written law
of land tenure on the mainland of Tanzania, since the
establishment of British Rule. This exercise has been most
helpful in giving us an understanding of the nature of rights
or interests in land on the mainland of Tanzania. This
historical background shows that the overriding legal
concern of the British authorities, no doubt under the
influence of the Mandate of the League of Nations and
subsequently of the Trusteeship Council, with regard to
land, was to safeguard, protect, and not to derogate from,
the rights in land of the indigenous inhabitants. This is
apparent in the Preamble to what was then known as the
Land Tenure Ordinance, Cap 113 which came into force
on 26 January, 1923. The Preamble reads:
With this background in mind, can it be said that the

customary or deemed rights of occupancy recognized under
the Land Ordinance are not property qualifying for
protection under article 24 of the Constitution? The Deputy
Attorney-General has submitted to the effect that the
customary or deemed rights of occupancy, though in
ordinary parlance may be regarded as property, are not
constitutional property within the scope of Article 24
because they lack the minimum characteristics of property
as outlined by Thomas Allen in his article earlier mentioned
where he states:
The precise content of the bundle of rights varies
between legal systems, but nonetheless it is applied
throughout the Commonwealth. At a minimum,
the bundle has been taken to include the right to
exclude others from the thing owned, the right to
use or receive income from it, and the right to
transfer to others. According to the majority of
Commonwealth cases, an individual has property
once he or she has a sufficient quantity of these
rights in a thing. What is sufficient appears to vary
from case to case, but it is doubtful that a single strand
of the bundle would be considered property on its own.
Whereas it is expedient that the existing

customary rights of the natives of the Tanganyika
Territory to use and enjoy the land of the Territory
and the natural fruits thereof in sufficient quantity
to enable them to provide for the sustenance of
themselves their families and their posterity should
be assured, protected and preserved;
AND WHEREAS it is expedient that the rights
and obligations of the Government in regard to
the whole of the lands within the Territory and
also the rights and obligations of cultivators or
other persons claiming to have an interest in such
lands should be defined by law.
According to the Deputy Attorney-General, customary or

deemed rights of occupancy lack two of the three essential
characteristics of property. First, the owner of such a right
cannot exclude all others since the land is subject to the
superior title of the President of the United Republic in
whom the land is vested. Second, under section 4 of the
Land Ordinance, the occupier of such land cannot transfer
title without the consent of the President.
BE IT THEREFORE ENACTED by the Governor

and Commander-in-Chief of the Tanganyika
Territory as follows . . .
It is well known that after a series of minor amendments

over a period of time, the Land Tenure Ordinance assumed
its present title and form as the Land Ordinance, Cap 113.
Its basic features remain the same up to now. One of the
basic features is that all land is declared to be public land
and is vested in the governing authority on trust for the
benefit of the indigenous inhabitants of this country. This
appears in section 3 and 4 of the Ordinance.
With due respect to the Deputy Attorney-General, we do

not think that his contention on both points is correct. As
we have already mentioned, the correct interpretation of
S.4 and related sections above mentioned is that the
President holds public land on trust for the indigenous
inhabitants of that land. From this legal position, two
important things follow. Firstly, as trustee of public land,
the Presidents power is limited in that he cannot deal with
public land in a manner in which he wishes or which is
detrimental to the beneficiaries of public land. In the words
of s. 6(1) of the Ordinance, the President may deal with
public land only where it appears to him to be in the
general interests of Tanganyika. Secondly, as trustee, the
President cannot be the beneficiary of public land. In other
words, he is excluded from the beneficial interest.
The underlying principle of assuring, protecting and

preserving customary rights in land is also reflected under
article 8 of the Trusteeship Agreement, under which the
mainland of Tanzania was entrusted by the United Nations
to the British Government. Article 8 reads:
343
With regard to the requirement of consent for the validity

of title to the occupation and use of public lands, we do
not think that the requirement applied to the beneficiaries
of public land, since such an interpretation would lead to
the absurdity of transforming the inhabitants of this country,
who have been in occupation of land under customary law
from time immemorial, into mass squatters in their own
country. Clearly that could not have been the intention of
those who enacted the Land Ordinance. It is a well known
rule of interpretation that a law should not be interpreted
to lead to an absurdity. We find support from the provisions
of article 8 of the Trusteeship Agreement which expressly
exempted dispositions of land between the indigenous
inhabitants from the requirement of prior consent of the
governing authority. In our considered opinion, such
consent is required only in cases involving disposition of
land by indigenous inhabitants or natives to non-natives
in order to safeguard the interests of the former. We are
satisfied in our minds that the indigenous population of
this country are validly in occupation of land as
beneficiaries of such land under customary law and any
disposition of land between them under customary law is
valid and requires no prior consent from the President.
of occupancy without fair compensation is prohibited by

the Constitution. The prohibition of course extends to a
granted right of occupancy. What is fair compensation
depends on the circumstances of each case. In some cases
a reallocation of land may be fair compensation. Fair
compensation however is not confined to what is known
in law as unexhausted improvements. Obviously where
there are unexhausted improvements, the constitution as
well as the ordinary land law requires fair compensation
to be paid for its deprivation.
We are also of the firm view that where there are no
unexhausted improvement, but some effort has been put
into the land by the occupier, that occupier is entitled to
protection under Article 24 (2) and fair compensation is
payable for deprivation of property. We are led to this
conclusion by the principle, stated by Mwalimu Julius K.
Nyerere in 1958 and which appears in his book Freedom
and Unity published by Oxford University Press, 1966.
Nyerere states, inter alia:
When I use my energy and talent to clear a piece
of ground for my use it is clear that I am trying to
transform this basic gift from God so that it can
satisfy a human need. It is true, however, that this
land is not mine, but the efforts made by me in
clearing the land enable me to lay claim of
ownership over the cleared piece of ground. But
it is not really the land itself that belongs to me
but only the cleared ground which will remain
mine as long as I continue to work on it. By
clearing that ground I have actually added to its
value and have enabled it to be used to satisfy a
human need. Whoever then takes this piece of
ground must pay me for adding value to it through
clearing it by my own labour.
We are of course aware of the provisions of the Land

Regulations, 1948 and specifically regulation 3 which
requires every disposition of a Right of Occupancy to be
in writing and to be approved by the President. In our
considered opinion the Land Regulations apply only to a
Right of Occupancy granted under s.6 of the Land
Ordinance and have no applicability to customary or
deemed rights of occupancy, where consent by a public
authority is required only in the case of a transfer by a
native to a non-native. A contrary interpretation would
result in the absurdity we have mentioned earlier.
This in our view, deserves to be described as the Nyerere

Doctrine of Land Value and we fully accept it as correct
in law.
As to the contention by the Deputy Attorney-General to

the effect that the right to property under Article 24 of the
Constitution is derogated from by the provision contained
therein which subjects it to the relevant laws of the land,
we do not think that, in principle, that expression, which
is to be found in other parts of the Constitution, can be
interpreted in a manner which subordinates the Constitution
to any other law. It is a fundamental principle in any
democratic society that the Constitution is supreme to every
other law or institution. Bearing this in mind, we are
satisfied that the relevant proviso means that what is stated
in the particular part of the Constitution is to be exercised
in accordance with relevant law. It hardly needs to be said
that such regulatory relevant law must not be inconsistent
with the Constitution.
We now turn to the second ground of appeal. This one

poses no difficulties. The genesis of this ground of appeal
is the finding of the trial judge where she states,
In the light of the provisions of Article 24 (1)
and (2) of the Constitution, section 3 and 4 of
Act No. 22 of 1992 violate the Constitution by
denying the petitioners the right to go on
possessing their deemed rights of occupancy and
what is worse, denying the petitioners
compensation under section 3 (4) of Act No. 22
of 1992.
Like both sides to this case, we are also of the view that
the learned trial judge erred in holding that the provisions
of section 4 of Act. No. 22 of 1992 denied the petitioners
or any other occupier compensation for unexhausted
improvements. The clear language of that section precludes
compensation purely on the basis of extinction of
customary rights in land. The section reads:
For all these reasons therefore we have been led to the

conclusion that customary or deemed rights in land, though
by their nature are nothing but rights to occupy and use
the land, are nevertheless real property protected by the
provisions of article 24 of the Constitution. It follows
therefore that deprivation of a customary or deemed right
344
No compensation shall be payable only on

account of loss of any right or interest in or over
land which has been extinguished under section
3 of this Act.
arises to confer adjudicative jurisdiction on bodies other

than the courts, is to provide for finality of adjudication,
such as by appeal or review to a superior court, such as the
High Court or Court of Appeal.
But as we have already said, the correct constitutional

position prohibits not only deprivation of unexhausted
improvements without fair compensation, but every
deprivation where there is value added to the land. We
shall consider the constitutionality of section 4 later in this
judgement.
Let us skip over ground number 4 which is the concluding

ground of the whole appeal. We shall deal with it later. For
now, we turn to ground number 5. This ground relates to
that part of the judgement of the learned trial judge, where
she states:
It is reverse discrimination to confiscate the
petitioners deemed right of occupancy and
reallocate the same to some other needy persons
because by doing so the petitioners are deprived
of their right to own land upon which they depend
for a livelihood which was why they acquired it
back in 1943.
Ground number 3 attacks the finding of the trial judge to

the effect that the provisions of Act No. 22 of 1992 which
oust the jurisdiction of the Courts from dealing with
disputes in matters covered by the Act are unconstitutional.
The relevant part of the judgement of the High Court reads
as follows:
There is merit in this ground of appeal. Act No. 22 of 1992

cannot be construed to be discriminatory within the
meaning provided by Article 13(5) of the Constitution. Mr.
Sangkas valiant attempt to show that the Act is
discriminatory in the sense that it deals only with people
in the rural areas and not those in the urban areas was
correctly answered by the Deputy Attorney-General that
the Act was enacted to deal with a problem peculiar to
rural areas. We also agree with the learned Deputy
Attorney-General, that the act of extinguishing the relevant
customary or deemed rights of occupancy did not amount
to acquisition of such rights. As it was stated in the
Zimbabwe case of HEWLETT VS MINISTER OF
FINANCE cited earlier where an extract of a judgement
of Viscount Dilhome is reproduced stating:
The effect of sections 5 and 6 of Act No. 22 of

1992 is to oust the jurisdiction of the Courts of
law in land disputes arising under the controversial
Act No. 22 of 1992 and exclusively vesting such
jurisdiction in land tribunals. Such ousting of the
courts jurusdiction by section 5 and 6 of Act No.
22/92 violates Articles 30(1), (3), (4) and 108 of
the Constitution.
The Deputy Attorney-General has submitted to the effect

that the Constitution allows, specifically under article 13
(6) (a), for the existence of bodies or institutions other than
the courts for adjudication of disputes. Such bodies or
institutions include the Land Tribunal vested with exclusive
jurisdiction under section 6 of Act No. 22 of 1992. We are
greatful for the interesting submission made by the Deputy
Attorney-General on this point, but with due respect, we
are satisfied that he is only partly right. We agree that the
Constitution allows the establishment of quasi-judicial
bodies, such as the Land Tribunal. What we do not agree
is that the Constitution allows the courts to be ousted of
jurisdiction by confering exclusive jurisdiction on such
quasi-judicial bodies. It is the basic structure of a
democratic Constitution that state power is divided and
distributed between three state pillars. These are the
Executive, vested with executive power; the Legislature
vested with legislative power; and the Judicature vested
with judicial powers. This is clearly so stated under article
4 of the Constitution. This basic structure is essential to
any democratic constitution and cannot be changed or
abridged while retaining the democratic nature of the
constitution. It follows therefore that wherever the
constitution establishes or permits the establishment of any
other institution or body with executive or legislative or
judicial power, such institution or body is meant to function
not in lieu of or in derogation of these three central pillars
of the state, but only in aid of and subordinate to those
pillars. It follows therefore that since our Constitution is
democratic, any purported ouster of jurisdiction of the
ordinary courts to deal with any justiciable dispute is
unconstitutional. What can properly be done wherever need
Their Lordships agree that a person may be

deprived of his property by mere negative or
restrictive provision but it does not follow that
such a provision which leads to deprivation also
leads to compulsory acquisition or use.
It is apparent that, during Operation Vijiji what happened

was that some significant number of people were deprived
of their pieces of land which they held under customary
law, and were given in exchange other pieces of land in
the villages established pursuant to Operation Vijiji. This
exercise was undertaken not in accordance with any law
but purely as a matter of government policy. It is not
apparent why the government chose to act outside the law,
when there was legislation which could have allowed the
government to act according to law, as it was bound to.
We have in mind the Rural Lands (Planning and
Utilization) Act, 1973, Act No. 14 of 1973, which
empowers the President to declare specified areas to
regulate land development and to make regulations to that
effect, including regulations extinguishing customary rights
in land and providing for compensation for unexhausted
improvements, as was done in the case of Rufiji District
under Government Notice Nos. 25 of 10th May 1974 and
216 of 30th August 1974. The inexplicable failure to act
345
For reasons demonstrated above the court finds

that sections 3, 4, 5 and 6 of Act No. 22 /92 the
Regulation of Land Tenure (Established Villages)
Act 1992 violate some provisions of the
Constitution thereby contravening Article 64(5)
of the Constitution. The unconstitutional Act No.
22 of 1992 is hereby declared null and void and
accordingly struck down
according to law, predictably led some aggrieved villagers

to seek remedies in the courts by claiming recovery of the
lands they were dispossessed during the exercise. Not
surprisingly most succeeded. To avoid the unravelling of
the entire exercise and the imminent danger to law and
order, the Land Development (Specified Areas)
Regulations, 1986 and the Extinction of Customary Land
Rights Order, 1987 were made under Government Notice
No. 659 of 12th December 1986 and Government Notice
No. 88 of 13th February 1987 respectively. As we have
already mentioned earlier in this judgement, Government
Notice No. 88 of 13th February 1987 extinguished
customary land rights in certain villages in Arusha Region,
including the village of Kambi ya Simba where the
respondents come from. We shall consider the legal effect
of this Government Notice later in this judgement.
The learned Deputy Attorney-General contends in effect

that the learned trial judge, having found only four sections
out of twelve to be unconstitutional ought to have confined
herself only to striking down the four offending sections
and not the entire statute. There is merit in this ground of
appeal. There is persuasive authority to the effect that where
the unconstitutional provisions of a statute may be severed
leaving the remainder of the statute functioning, then the
court should uphold the remainder of the statute and
invalidate only the offending provisions.
For the moment we must turn to ground number 6 of the

appeal. Although the Deputy Attorney-General was very
forceful in submitting to the effect that the learned trial
judge erred in striking down from the statute book those
provisions of Act. No. 22 of 1992 which she found to be
unconstitutional, he cited no authority and indicated no
appropriate practice in countries with jurisdiction similar
on what may be described as the authority or force of reason
by arguing that the Doctrine of Separation of Powers
dictates that only the Legislature has powers to strike out
a statute from the statute book. We would agree with the
learned Deputy Attorney-General in so far as valid statutes
are concerned. We are unable, on the authority of reason,
to agree with him in the case of statutes found by a
competent court to be null and void. In such a situation,
we are satisfied that such court has inherent powers to make
a consequential order striking out such invalid statute from
the statute book. We are aware that in the recent few weeks
some legislative measures have been made by the
Parliament concerning this point. Whatever those measures
may be, they do not affect this case which was decided by
the High Court a year ago.
See the case of Attorney-General of Alberta vs AttorneyGeneral of Canada (1947) AC 503.

In the present case, for the reasons we have given earlier, we
are satisfied that sections 3 and 4 which provide for the
extinction of customary rights in land but prohibit the
payment of compensation with the implicit exception of
unexhausted improvements only are violative of Article 24(1)
of the Constitution and are null and void. Section 4 would be
valid if it covered compensation for value added to land
within the scope of the Nyerere Doctrine of Land Value.
But as we have pointed out earlier in this judgement, this
finding has no effect in the villages of Arusha Region
including Kambi ya Simba, which are listed in the schedule
to Government Notice No. 88 of 1987. The customary
rights in land in those listed villages were declared extinct
before the provisions of the Constitution, which embody
the Basic Human Rights became enforceable in 1988 by
virtue of the provisions of section 5(2) of the Constitution
(Consequential, Transitional and Temporary Provisions)
Act, 1984. This means that since the provisions of Basic
Human Rights are not retrospective, when the Act No. 22
of 1992 was enacted by the Parliament, there were no
customary rights in land in any of the listed villages of
Arusha Region. This applies also to other areas, such as
Rufiji District where, as we have shown, customary rights
in land were extinguished by law in the early 1970s.
Bearing in mind that Act No. 22 of 1992, which can
correctly be described as a draconian legislation, was
prompted by a situation in some villages in Arusha Region,
it is puzzling that a decision to make a new law was made
where no new law was needed. A little research by the
Attorney-Generals Chambers would have laid bare the
indisputable fact that customary rights in land in the
villages concerned had been extinguished a year before
the Bill of Rights came into force. With due respect to
those concerned, we feel that this was unnecessary panic
characteristic of people used to living in our past rather
than in our present which is governed by a constitution
Ground number 7 is next and it poses no difficult at all. It

refers to that part of the High Courts judgement where
the learned trial judge states:
Furthermore section 3(4) of Act No. 22 of 1992
forbides any compensation on account of the loss
of any right or interest in or over land which has
been extinguished under section 3 of Act No. 22
of 1992.
As both sides agree, the reference to section 3(4) must

have been a slip of the pen. There is no such section. The
learned trial judge must have been thinking of section 4
and would undoubtedly have corrected the error under the
Slip Rule had her attention been drawn to it.
We must now return to ground number 4. The genesis of
this ground is that part of the judgement of the trial court
where it states:
346
embodying a Bill of Rights. Such behavior does not augur

well for good governance.
of the matters stated under s.7 of the Act. To that extent

therefore the learned trial judge was wrong in striking down
the entire statute. To that extend we hereby reverse the
decision of the court below. As neither side is a clear winner
in this case, the appeal is partly allowed and partly
dismissed. We make no order as to costs.
With regard to section 5(1) and (2) which prohibits access

to the courts or tribunal, terminates proceedings pending
in court or tribunal and prohibits enforcement of decisions
of any court or tribunal concerning land disputes falling
within Act No. 22 of 1992, we are satisfied, like the learned
trial judge, that the entire section is unconstitutional and
therefore null and void, as it encroaches upon the sphere
of Judicature contrary to Article 4 of the Constitution, and
denies an aggrieved party remedy before an impartial
tribunal contrary to Article 13(6)(a) of the same
constitution.
DATED at DAR ES SALAAM this 21st day of December,

1994.
F. L. NYALALI
CHIEF JUSTICE
The position concerning section 6 is slightly different. That

section reads:
No proceeding may be instituted under this Act,
other than in the Tribunal having jurisdiction over
the area in which the dispute arises.
L. M. MAKAME
JUSTICE OF APPEAL
Clearly this section is unconstitutional only to the extent

that it purports to exclude access to the courts. The
offending parts may however be severed so that the
remainder reads, Proceedings may be instituted under this
Act in Tribunal having jurisdiction over the area in which
the dispute arises. This would leave the door open for an
aggrieved party to seek a remedy in the courts, although
such courts would not normally entertain a matter for which
a special forum has been established, unless the aggrieved
party can satisfy the court that no appropriate remedy is
available in the special forum.
R. H. KISANGA
JUSTICE OF APPEAL
I certify that this is a true copy of the original.
(B. M. LUANDA)
SENIOR DEPUTY REGISTRAR
The remainder of the provisions of Act No. 22 of 1992

including section 7, which can be read without the proviso
refering to the invalidated section 3, can function in respect
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Compendium of Judicial Decisions

on Matters Related to Environment

Compendium of Judicial Decisions on Matters Related to Environment

National Decisions Volume II

BACKGROUND TO ENVIRONMENTAL LITIGATION ......................................................................................3

The Legal Basis of Civil Action.........................................................................................................................3

Judicial Review ..................................................................................................................................................3

Action in private law ..........................................................................................................................................4

The Remedies .....................................................................................................................................................5

The protection of the riparian owners right to water........................................................................................5

III BACKGROUND TO CIVIL LAW SYSTEMS .........................................................................................................7

An Example of a Civil Law Judicial System: The French Judicial System......................................................7

Jurisdiction in the French Civil Law System.....................................................................................................9

French Case Law and Environmental Liability .................................................................................................9

IV THEMATIC ARRANGEMENT OF JUDICIAL DECISIONS ...............................................................................12

PLANNING CONTROL .........................................................................................................................................27

Paykel v the Northland Regional Council, 1999, (New Zealand)...................................................................88

vi. Farooque and Sekandar Ali Mondol v Bangladesh, (Bangladesh)................................................................112

Compendium of Judicial Decisions on Matters Related to Environment

POLICE POWER AND COMPULSORY ACQUISITION IN ENVIRONMENTAL MANAGEMENT .....163

Daroux v The Minister of Lands, 1999, (New Zealand) ...............................................................................184

THE PLACE OF CULTURE IN ENVIRONMENTAL MANAGEMENT . ....................................................195

This publication has been developed in pursuance of the aims

understand the concepts and principles rising from the

Consequently, the Compendium of Judicial Decisions was

Needless to say, inconsistent or incoherent enforcement

The promotion of sustainable development through legal

Given the novelty of environmental law, the Compendium

Over the last two decades many countries have witnessed

In this Volume the introductory discussion on Background

The complexity of environmental laws and regulations

Compendium of Judicial Decisions on Matters Related to Environment

As was done in Volume I this Volume too is divided into

As is now established practice cases are drawn from a diverse

of public powers or the performance of a public duty the cause

THE LEGAL BASIS OF CIVIL ACTION

Judicial intervention in environmental issues arises when

A civil law action in public law is designed for challenging

The traditional position has been that, whereas a public

Judicial review is a remedy that may be used to:

quash a decision (certiorari)

Judicial review may be awarded where a public body has

A private individual could however bring action in his name

where it has acted beyond its legal powers (i.e. ultra

Compendium of Judicial Decisions on Matters Related to Environment

Judicial review is a remedy under both statute and the

Judicial review as a statutory remedy

Statutes typically provide that persons who are aggrieved

A public nuisance is an interference with the publics

The words person aggrieved are of wide import and

It is a nuisance which is so widespread in its range

Judicial review as a common law remedy

A private nuisance is an interference with an occupiers use

Quite apart from, and independently of, statutory

The private law causes of action are trespass, nuisance,

The reasonableness, or unreasonableness, of the use giving

(c) Strict Liability: the Rule in Rylands v Fletcher

Trespass arises where a person causes physical matter to