IN THE COURT OF APPEAL OF NEW ZEALAND
CA687/2013
[2014] NZCA 178
BETWEEN
PHILIP JOHN WOOLLEY
Appellant
AND
THE QUEEN
Respondent
Hearing:
19 February 2014 (further submissions received 5 March 2014)
Court:
Ellen France, MacKenzie and Mallon JJ
Counsel:
D J Clark for Appellant
J M O’Sullivan and A A Jacobs for Respondent
Judgment:
12 May 2014 at 11.30 am
JUDGMENT OF THE COURT
A
The application for an extension of time to appeal is granted.
B
The appeal against conviction is allowed in part.
The convictions on
counts 3 and 4 relating to breaches of s 9(3) of the Resource Management
Act 1991 are quashed. No order for a retrial.
C
The appeal against sentence is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Ellen France J)
WOOLLEY V R CA687/2013 [2014] NZCA 178 [12 May 2014]
Table of Contents
Para No
[1]
[6]
[12]
[21]
[40]
[43]
[44]
[51]
[54]
[62]
[63]
[71]
[81]
Introduction
Background
The reasons for verdict
The interrelationship between ss 9 and 13
Duplicity?
Postscript
“Maintenance” of the drainage channel?
The Judge’s interpretation of maintenance
Our analysis
Sentence
The sentencing remarks
The appeal against sentence
Result
Introduction
[1]
On 8 May 2010 Philip Woolley, the appellant, drove his digger into the
Hinepango Reserve wetland at Rarangi (the wetland). As he drove, he crushed trees
and other vegetation. He then drove the digger along an existing drainage channel,
excavating and enlarging it as he went. This led to the destruction of vegetation in a
strip about 10 metres wide along the western side of the channel. Mr Woolley did
not have a resource consent to carry out this work. He was charged on indictment
with four offences against the Resource Management Act 1991 (the Act) in relation
to his activities in the wetland.
[2]
Following a trial before a Judge alone, Judge Harrop, Mr Woolley was
convicted on 10 June 2013 of these charges.1 He was sentenced by Judge Harrop to
two months home detention and ordered to pay reparation of $38,253 and costs of
$1,628.75.2 Mr Woolley appeals against conviction and sentence.
[3]
The conviction appeal raises two issues.
The first issue concerns the
interrelationship of ss 9 and 13 of the Act which deal, respectively, with restrictions
on the use of land and of riverbeds. Mr Woolley says that once the Judge found the
1
2
R v Woolley DC Blenheim CRI-2010-006-1979, 10 June 2013 [reasons for verdict].
R v Woolley DC Blenheim CRI-2010-006-1979, 20 August 2013 [sentencing remarks]; and
10 September 2013. (On 10 September, the Judge confirmed a sentence he had already
discussed on 20 August, but deferred pending the receipt of further information: see below at
[69].)
wetland was a riverbed, he could only be charged with breaches of s 13, and not s 9
as well. The second issue is whether what Mr Woolley did comprised “maintenance”
of the drainage channel.
[4]
The sentence appeal challenges the imposition of home detention and the
amount of reparation. Both are said to be manifestly excessive.
[5]
We deal first with the conviction appeal and then with sentence. To put the
issues in context, we first say a little more about the background and the Judge’s
reasons for verdict.
Background
[6]
Mr Woolley was convicted on indictment on four counts. The first two
counts relate to s 13(1) of the Act. That subsection materially provides that no
person may, “in relation to the bed of any lake or river”, either “excavate, drill,
tunnel, or otherwise disturb the bed” or “deposit any substance in, on, or under the
bed … unless expressly allowed by … [relevantly] a rule in a regional plan … or a
resource consent”.
[7]
The particulars of the two counts relating to s 13 are as follows:
Count 1: Depositing soil and vegetation on the bed of a river in the
wetland when not expressly allowed to do so by, relevantly, a rule in a
regional plan or a resource consent contrary to s 13(1)(d) of the Act.3
Count 2: Disturbing the bed of a river in the wetland when not
expressly allowed to do so by, relevantly, a rule in a regional plan or a
resource consent contrary to s 13(1)(b) of the Act.
[8]
The other two counts relate to s 9(3) of the Act. That subsection provides:
(3)
3
No person may use land in a manner that contravenes a district rule
unless the use—
All of the charges are laid under s 338(1)(a) of the Resource Management Act 1991.
[9]
(a)
is expressly allowed by a resource consent; or
(b)
is allowed by section 10; or
(c)
is an activity allowed by section 10A.
The particulars of the two counts relating to s 9 are as follows:
Count 3: Using land in a manner contravening r 30.1.7.3.1 of
Wairau/Awatere Resource Management Plan (the Plan), namely,
excavating land within eight metres of the wetland contrary to s 9(3)
of the Act.
Count 4: Using land in a manner contravening r 30.1.7.5.1 of the
Plan, namely, leaving woody material of more than 100 millimetres
diameter in the wetland, as a result of a land disturbance operation
contrary to s 9(3) of the Act.
[10]
The rules in the Plan referred to in the description of counts 3 and 4 are as
follows:
30.1.7.3.1
Excavation and Tracking
The excavation of land is a Permitted Activity provided that:
30.1.7.3.1
Except for direct approaches to bridges, crossings and fords,
no excavation may take place within eight metres of any
permanently flowing river or lake or wetland or the sea.
…
[11]
30.1.7.5
General Conditions Applicable to all Land Disturbance.
30.1.7.5.1
No woody material of greater than 100 millimetres diameter
shall be left in any permanently flowing river, lake, wetland
or sea as a result of a land disturbance operation.
At trial, there were three key factual issues, namely: whether the excavation
took place in a riverbed; whether the excavation was of an existing drainage channel;
and whether, if there was an existing channel, Mr Woolley’s actions involved its
maintenance. The first issue arose because s 13 of the Act, in issue in counts 1 and
2, sets out restrictions on use in a riverbed and Mr Woolley disputed that this area of
the wetland was a riverbed. The second and third issues arose because of the
possible application of the rule in the Plan permitting “the maintenance of existing
drainage channels” without the need for resource consent.4 Rule 30.1.1 relevantly
provides as follows:
Unless expressly limited elsewhere and subject to compliance with the
conditions applying to Permitted Activities the activities listed below shall
be permitted without a resource consent:
…
The maintenance of existing drainage channels.5
The reasons for verdict
[12]
On the first issue of whether the Crown had proved beyond reasonable doubt
that Mr Woolley’s conduct was in relation to the bed of the river, the Judge
concluded that the Crown had done so. We return later to the width of the definition
of the riverbed adopted by the Judge.
[13]
Next, the Judge addressed whether the Crown had proved beyond reasonable
doubt that Mr Woolley was not expressly allowed to do what he did by a rule in the
regional plan. The issue arose as the Crown accepted that Mr Woolley had provided
an evidential foundation for this exception to apply.
A witness called for
Mr Woolley, Ian Taylor, had confirmed there was a channel winding through part of
the wetland by late 2007.
Accordingly, there was a basis for Mr Woolley’s
contention that he was maintaining that drainage channel in May 2010.
[14]
The Judge then addressed whether r 30.1.1 had been complied with.
As noted, that is the rule in the Plan permitting the “maintenance” of existing
drainage channels without a resource consent.6
[15]
On count 1 the Judge concluded that what Mr Woolley had done was not
maintenance. It may have been in conjunction with maintenance but was a separate
activity. The Judge termed this activity as amounting to “collateral damage”.7
4
5
6
7
Rule 30.1.1.
Drainage channels are defined in ch 26 as: “an artificial or other watercourse maintained or
created for the purposes of removing drainage, stormwater and ponded surface water”.
We note here that compliance with r 30.1.1 was relevant to counts 1 and 2, the s 13 counts, only
if that rule was “a rule in a regional plan”. We address this issue at [45] and following.
At [96].
[16]
On count 2 the Judge again considered that collateral damage was not
permitted under the rubric of “maintenance”.
The Judge’s conclusion was as
follows:
[101] These findings are strictly sufficient for me to conclude that
Mr Woolley must also be guilty of count two because the Crown in my view
has proved beyond reasonable doubt that he was not expressly allowed by a
rule in a regional plan to disturb the strip of land on the western side of the
channel, part of the bed of the river, as he so substantially did. However in
deference to counsel’s submissions and because the gravamen of the Crown
case on count two relates to disturbance of the portion of the bed of the river
which the channel itself constitutes, I will go on to consider, briefly, the
respective contentions of counsel.
[17]
Applying the dictionary definition of “maintenance”, the Judge decided what
occurred was not maintenance but was rather in the nature of restoration or
reinstatement. Mr Woolley was “not merely preserving the state of the channel but
(at the least) returning it to what it had been ten years earlier”.8 Accordingly,
count 2, even if treated as related solely to disturbance of the bed of the channel,
would not have been allowed by a rule in the Plan.
[18]
On count 3 Judge Harrop concluded that what Mr Woolley had done was
“excavation” although there was an issue about the effect of a further definition in
the plan for “earthworks”.9 The Judge also concluded the excavations had occurred
within eight metres of the wetland; indeed, the Judge said that the excavation had
occurred in the middle of it.
[19]
On count 4 the Judge determined that Mr Woolley’s actions amounted to land
disturbance activity by way of vegetation clearance as well as excavation.
[20]
On both counts 3 and 4 it was accepted that Mr Woolley had met the
evidential burden to raise a question of existing use rights. However, Judge Harrop
concluded that the Crown had proved beyond reasonable doubt that he did not have
such rights. Essentially, this was because the use had been discontinued.
8
9
Reasons for verdict, above n 1, at [111].
The definition of “earthworks” was linked to work in a drainage channel whereas excavation
was defined more generally as digging out soil.
The interrelationship between ss 9 and 13
[21]
The issue is whether, if activities occur in the bed of a river contrary to s 13,
those activities can also amount to a breach of s 9. The competing contentions are,
first, that s 9(3) relates to land other than that in a riverbed. The contrary proposition
is that s 13 does not excuse land users from compliance with s 9 but, rather, provides
additional protection for riverbeds.
[22]
To decide this issue, we need to examine the scheme of the Act. Sections 9
and 13 are contained in pt 3 of the Act, which sets out various duties and restrictions
under the Act. Other aspects of pt 3 relate to matters such as noise and a duty to
mitigate adverse effects.
[23]
Broadly, as we have foreshadowed, s 9 makes it plain that land cannot be
used in a way that contravenes, relevantly, a district rule unless that use is allowed by
s 10. (The section also deals with use expressly allowed by a resource consent or an
activity allowed by s 10A but neither of those sections apply here.)
[24]
Section 9(6) provides that the section does not apply to use of the coastal
marine area.
[25]
“Land” is defined in s 2(1) of the Act as including “land covered by water”10
and:
[26]
(b)
in a national environmental standard dealing with a regional council
function under section 30 or a regional rule, does not include the bed
of a lake or river; and
(c)
in a national environmental standard dealing with a territorial
authority function under section 31 or a district rule, includes the
surface of water in a lake or river.
Because “land” includes “land covered by water”, on this definition land
includes a riverbed, except in a national environmental standard which is not
relevant here. Therefore, on the face of it, s 9(3) can apply to the use of a riverbed.
The question then is whether s 13 (or some other provision in the Act) overrides that
in some way.
10
Paragraph (a).
[27]
Section 13 restricts certain uses of beds of lakes and rivers. Relevantly,
s 13(1) restricts excavation or other disturbance of the bed of a river or the
depositing of any substance in, on, or under the bed of a river. Section 13(3)
provides that the section does not apply to any use of land in the coastal marine area.
Section 13(4) provides that “[n]othing in this section limits section 9.” Again, on the
face of it, s 13 does not purport to restrict the application of s 9(3) to riverbeds.
[28]
The key submission for Mr Woolley was that ss 9 and 13 must be interpreted
in light of the functions of the various authorities and the definitions of the various
plans.
[29]
The functions of regional councils under the Act are set out in s 30.
Relevantly, the functions in s 30(1) relate to, broadly, the control of the use of land
for the purpose of maintaining the quality and quantity of water in water bodies and,
importantly, for this case:11
the maintenance and enhancement of the quality of water … in relation to
any bed of a water body.
[30]
The functions of territorial authorities12 are set out in s 31 and are, generally,
related to the use of land. There is nothing to suggest that the definition of “land” in
s 2 does not apply.
[31]
Section 43AA of the Act defines district and regional plans.13 The former is
an operative plan approved by a territorial authority under sch 1 and a regional plan
means an operative plan approved by a regional council under sch 1. District rules
are rules made as part of a district plan and a regional rule is one made as part of a
regional plan.14
[32]
The purpose of regional plans is set out in s 63(1). Relevantly, the purpose of
these plans is to “assist a regional council to carry out any of its functions in order to
achieve the purpose of” the Act. The content of regional plans is provided for in
11
12
13
14
Paragraph (g).
“Territorial authority” is defined as meaning a territorial authority within the meaning of the
Local Government Act 2002: Resource Management Act, s 2(1).
Section 2(1) itself simply states that these terms have the meanings given in s 43AA.
Sections 43AAB(1) and 43AAB(3).
s 67. Section 68 states that a regional council may for the purpose of carrying out its
functions under the Act and achieving the objectives and policies of the plan include
rules in a regional plan. The equivalent provisions for district plans are ss 72, 75
and 76.
[33]
There is an added level of complexity in the present case because the relevant
authority is in fact a unitary one having both territorial and regional functions.15
A unitary authority’s plan will therefore contain both regional and district rules.
At the time the Plan was prepared, it was not necessary for the nature of the rule to
be clearly identified in the plan.16
[34]
The general approach in the Act is that each authority has particular
functions, not demarcated by whether the land is or is not land covered by water, and
those functions are then reflected in their plans and rules. However, the way in
which the relevant concepts are defined means there can be some overlap in
function. That point was made by this Court in Canterbury Regional Council v
Banks Peninsula District Council.17 We consider it follows from the scheme of the
Act that if an activity engages functions assigned to territorial and regional
authorities both ss 9 and 13 can apply.
[35]
That conclusion is supported by cases dealing with the overlap between the
two sections, albeit not in the context of criminal proceedings. 18 For example, in
Wanaka Landfill Ltd v Queenstown-Lakes District Council (No 2), the Environment
Court confirmed that Wanaka Landfill Ltd was required to obtain consents from the
Queenstown-Lakes District Council in relation to its clean fill operation, gravel
extraction and stockpiling activities in and around the Cardrona River. 19 That was so
even though the company extracted gravel from the river pursuant to permits granted
15
16
17
18
19
See Local Government Act, s 5(1), definition of “unitary authority”.
Contrast s 80(8) of the Resource Management Act.
Canterbury Regional Council v Banks Peninsula District Council [1995] 3 NZLR 189 (CA) at
194–195.
Wanaka Landfill Ltd v Queenstown-Lakes District Council (No 2) [2010] NZEnvC 299, [2011]
NZRMA 213; Smith v Hamilton City Council EnvC Auckland A193/2005, 30 November 2005;
Thompson v Queenstown Lakes District Council EnvC Christchurch C103/97, 26 September
1997; Kawarau Jet Services Ltd v Pro Jet Adventures Ltd (1991) 1 NZRMA 1 (PT); and see
commentary on s 13(4) and the relationship to s 9 in Stephen Blakeley (ed) Brookers Resource
Management (online looseleaf ed, Brookers) at [A13.06].
Wanaka Landfill Ltd v Queenstown-Lakes District Council (No 2), above n 18.
by the Otago Regional Council. In reaching its conclusion, the Environment Court
noted that while some of the activities were intended to take place in a river, others
took place on adjoining land. As to that, the Court, having outlined ss 9 and 13 and
the definitions in s 2(1), considered that some “straightforward propositions”
emerge:20
For instance that land includes land covered by water (for instance a river),
providing some level of jurisdiction to a territorial authority; and that leaving
aside seasonal and climatic variations in riverflows, a river legally extends
from bank to bank at its fullest flow.
[36]
In light of ss 30 and 31, the Court expressed its conclusion in this way:21
[The submissions of counsel for Wanaka Landfill Ltd] to the effect that the
permits granted by [the Regional Council] are complete and adequate in
every relevant way to control the operation, cannot be correct. … [O]ther
matters arise that can come within the purview of [the District Council],
arising once again from the terms of [s 31] (b), (d), (e), and perhaps other
provisions, such as noise, visual effects, dust, maintenance of biodiversity,
and control of natural hazards.
[37]
The limits on a prosecution in the present context are apparent from the
definition of “land”. For example, where a matter is properly dealt with in a regional
rule (as informed by s 30), “land” does not include the riverbed for the purposes of
prosecution under that regional rule. Rather, any prosecution in respect of a regional
rule would have to be brought under s 13. An activity in relation to a riverbed might
also contravene a district rule, if the rule had been properly made by the relevant
territorial authority. That would depend on its functions as set out in s 31.
[38]
Our view as to the interrelationship between the two sections is supported by
the legislative history. As initially enacted, s 9(6) of the Act provided that s 9(3) did
not apply to the bed of any lake or river. At that point in time, s 9(3) was the
subsection that related to using land in contravention of a rule in a regional plan.
Section 9(6) contained no similar restriction in respect of s 9(1), which at that time
was the subsection that related to using land in contravention of a district rule. When
the relevant sections were amended in 2009, the definition of land was amended to
20
21
At [14].
At [21] and see at [19] citing Canterbury Regional Council v Banks Peninsula District Council,
above n 17.
the current wording.22 As such, the restriction previously found in s 9(6) of the
earlier version of the Act was from that point on reflected in s 2(1), the definition of
“land”.
For present purposes, no substantive change was intended by this
amendment.23 The potential for overlap, as recognised in the cases decided under
the earlier version of the Act, remains reflected in the scheme. This potential is also
still reflected in s 13(4) which provides that nothing in s 13 limits s 9.
[39]
We conclude that charges under both sections are possible in situations where
there is an overlap of functions. However, this conclusion is not a complete answer
to this case because of its particular facts.
We turn then to consider whether
Mr Woolley is nonetheless right that he could not be charged under both sections.
This raises an issue as to whether the charges are duplicitous.
Duplicity?
[40]
The issue arises in this way. As we have noted, a key factual issue at trial
was whether the activities took place in the wetland or on the riverbed. Importantly
for these purposes, the Judge in concluding that this was a riverbed rejected an
argument from Mr Woolley that the boundaries of the river had to be defined. The
Judge accepted that the wetland was not what in lay terms would conventionally be
regarded as a river and as a result, the banks were not conventional either.
Judge Harrop summarised the position in his reasons for verdict as follows:
[53]
… What matters for present purposes is whether or not the Crown
has proved beyond reasonable doubt that Mr Woolley’s activities occurred
on the bed of the river. Here, however far away from the channel he dug
(and its immediate surrounds) the banks of the river which the Hinepango
wetland constitutes may be, there can be no doubt that, being essentially in
the middle of the swale, Mr Woolley’s activities occurred on the bed of that
river. That is because that area is, on the evidence, clearly within “the space
of land which the waters of the river cover at its fullest flow”.
[54]
To put it another way the area where the work was done was
essentially in the middle of the river, as far away from the banks as one can
be. The work undoubtedly was undertaken on the bed of this river and it is
22
23
Resource Management (Simplifying and Streamlining) Amendment Act 2009, s 4(11).
Resource Management (Simplifying and Streamlining) Amendment Bill 2009 (18-1)
(explanatory note) at 4; Departmental Report on the Resource Management (Simplifying and
Streamlining) Amendment Bill (Ministry for the Environment, June 2009) at 43, 45–46 and 332–
334.
not necessary to determine how close the banks are, provided one is assured,
as I am here, that the banks are beyond the relevant area.
…
[58]
… I would be satisfied beyond reasonable doubt that Mr Woolley’s
activities occurred in relation to the bed of a river namely the entire
Hinepango wetland sitting in the swale between the sandy beach ridges,
indeed in approximately the middle of the bed of that river. It may not be a
typical river, which a lay person would see as such, but in my view it is
clearly within the statutory definitions.
[41]
The difficulty that then arises from the width of this definition is that there is
no point of distinction between the activities covering the excavation activity in
either the riverbed or the wetland. The same applies for the land disturbance activity.
This would not be a problem if it could be shown, as the Crown asserts, that the
activities engaged different effects, each relating to a differing type of authority
function under ss 30 and 31.24 However, here, there is nothing to substantiate that
assertion. The evidence showed that the drainage works had led to damage to the
native vegetation and a change in ground level as well as other changes, for example,
a reduction in the tree canopy. These changes impacted adversely on the natural
hydrology and vegetation communities and created “ideal conditions” for weeds to
grow. However, the evidence simply does not differentiate expressly between the
activities reflected in the four counts in terms of their respective effects. We would
be left to speculate about this.
[42]
Accordingly, our view is that it was duplicitous to charge Mr Woolley under
both ss 9 and 13. It follows that the appeal against conviction on counts 3 and 4
must be allowed.
Postscript
[43]
We make two observations by way of a postscript. The first is that there was
no challenge on appeal to the Judge’s approach to the definition of the bed of a river
and we therefore make no comment about that aspect. Secondly, it does not appear
that the Judge made any finding that the particular rules in issue in counts 3 and 4
were in fact district rules. Proof of that fact was a necessary element.
24
We note that to establish that the activities engaged different effects, is is not necessary that the
activities took place at different locations.
“Maintenance” of the drainage channel?
[44]
In relation to counts 1 and 2, laid under s 13, the appellant’s defence was that
the activities alleged did not contravene s 13(1)(d) (for count 1) and s 13(1)(b) (for
count 2) because these activities were expressly allowed by a rule in a regional plan.
The appellant relied on r 30.1.1 which, as we have noted, permits maintenance of an
existing drainage channel.
[45]
Before we turn to whether the Judge was right to reject this defence, there is a
preliminary question we need to note. That question is whether r 30.1.1 is a district
rule or a regional rule. It was essential to the defence on counts 1 and 2 that r 30.1.1
is “a rule in a regional plan”. If r 30.1.1 is a district rule, not a regional rule,
compliance with that rule would not provide a defence to s 13 charges.
[46]
In addressing this aspect, Judge Harrop expressed the view that the rule
relating to the maintenance of drainage channels could well be seen as a rule in a
district plan rather than a regional plan.25 He did not decide that issue, but proceeded
on the basis that the rule might be a rule in a regional plan for the purpose of s 13.
[47]
There is, as the Judge acknowledged, force in the argument that the rule is a
district rule. For example, r 30.1 deals with permitted activities in the Rural 3 and
Rural 4 Zones. Zoning land is a mechanism for prescribing controls which fall
within the functions of a territorial authority, in particular under s 31(1)(b). Further,
many of the activities listed in r 30.1.1 are matters which fall within the functions of
a territorial authority under s 31, not a regional council under s 30. So, if the
reference to maintenance of a drainage channel is a regional rule, r 30.1.1 would
necessarily be in part a regional rule and in part a district rule. Assuming, without
deciding, that a composite district/regional rule of that sort is permitted under the
Act, there are other indications that suggest the part of the rule permitting the
maintenance of drainage channels is a district rule rather than a regional rule.
We mention just one, namely, that the rule is clearly intended to apply primarily to
drainage channels which do not form part of the bed of a river, as the present channel
25
At [104].
does. For areas outside a riverbed, the maintenance of drainage channels falls more
naturally under s 31 than under s 30.
[48]
However, the Judge did not decide the point so we have no finding on it from
him. Further, we did not hear argument on the point. The issue would need to be
decided only if we concluded that r 30.1.1 was complied with. As the issue may
have broader implications we do not decide the point but, rather, address the matter
on the same basis as did the Judge. We observe, however, that, if r 30.1.1 in
referring to the maintenance of a drainage channel is a district rule, the complication
that the area in which the work was carried out is both a riverbed and a drainage
channel (which are, in general terms, treated differently by the Act and the Plan)
does not arise.
[49]
On this basis, the particular question is whether the Judge was right to
discount the possibility that restoring or reinstating the channel was maintenance.
In other words, can maintenance include, as Mr Woolley submits, putting something
back into working order?
[50]
To assess this we need to say a little more about the Judge’s reasoning.
The Judge’s interpretation of maintenance
[51]
The starting point taken by Judge Harrop is that “maintenance” did not on the
facts of this case encompass what the Judge calls “collateral damage”. To illustrate,
in relation to count 1 concerning the deposit of soil and vegetation, the Judge
concluded that what Mr Woolley did in terms of that count could not be “the
maintenance of an existing drainage channel”.
It may have occurred “in
conjunction” with maintenance but must have been a separate activity.26 The Judge
applied the same reasoning to count 2 because the damage to the vegetation on the
western side of the channel also disturbed the riverbed. Again the finding was that
even if maintaining the bed of the channel and its banks, Mr Woolley “disturbed in a
collateral way” another part of the riverbed immediately adjoining the channel.27
26
27
Reasons for verdict, above n 1, at [96] (emphasis omitted).
At [99].
[52]
Judge Harrop nonetheless went on and considered the arguments that were
the focus of the hearing before this Court. He did this out of deference to counsels’
submissions and because the thrust of the Crown case on count 2 related to
disturbance of the portion of the bed of the river which the channel itself constituted.
[53]
In this context, Judge Harrop stated that the activity was not maintenance
because it went beyond preserving the state of the channel and took it back to what it
had been 10 years earlier.28 Further, Mr Woolley’s efforts in 2010 resulted in a
channel bigger than that seen by a witness called on behalf of Mr Woolley,
Ian Taylor, in 2007. The Judge also noted that those efforts were not linked to what
was necessary to enable the drain to function properly.
Our analysis
[54]
We do not address the Judge’s initial approach, that is, that Mr Woolley’s
actions could not comprise maintenance because of the “collateral damage”. That
approach involves an examination of whether the disturbance to the part of the
riverbed immediately adjacent to the work, to which the Judge referred, was a
necessary consequence of the work, or whether it was collateral to that work. We do
not address this because we consider that the case should be decided by determining
whether the work (including any damage caused by it) fell within the ordinary
definition of “maintenance”.
[55]
Nor do we address the Judge’s comment that the work was not linked to what
was necessary to show that the work enabled the drain to function properly.
It suffices to observe that it would be sufficient to show that this was the purpose of
the work, not necessarily that it had that effect. In other words, even if what
Mr Woolley did was hydraulically inefficient, it could still qualify as maintenance.
28
At [111].
[56]
We consider the Judge was right to ascribe to “maintenance” its ordinary
dictionary meaning of “keep[ing] up”/“preserv[ing]”.29 That view is supported by
the reference in r 30.1.1 to the maintenance of an “existing” channel. Given that
what is in issue is what can be done without a resource consent, the concept of
maintenance must be limited by reference to what has been done before rather than
embracing some new activity. Questions of scale will be involved. Accordingly, we
consider the Judge was right in that approach to the meaning of maintenance.
[57]
Dealing first with count 2, the Judge accepted that Mr Woolley had
undertaken “similar” excavation and vegetation clearance and depositing activities in
1990 and in 2000.30 Mr Clark’s submission for Mr Woolley was that what was done
in 2010 accordingly went no further than keeping up or preserving the channel, by
restoring it to the situation it had been in 1990 or 2000. However, in our view the
position had to be considered in light of the last state of the channel, namely the
drainage channel as it existed in 2007, because it was that channel that could be
maintained. To seek to return it to an earlier state, whether in 1990 or 2000 or some
other time, is not maintaining/preserving something but is returning it to an earlier
state.
[58]
Mr Taylor’s evidence is relevant here. He moved to the area in late 2007.
He described taking his children in a nine foot fibreglass dinghy through the ditch
and into the wetland reserve. He said they had gone about 200 metres, possibly
300 metres, and described them pushing their way through.
The reality is
Mr Woolley’s efforts in 2010 resulted in a channel of up to two metres deep and
seven metres wide in contrast to the 0.5 metre deep stream or creek seen by
Mr Taylor in 2007.
[59]
Further, even on Mr Woolley’s account, there was a basis for concluding that
his activities in 2010, although “similar”, went beyond what had been done in 2000
at least in terms of the length of the channel. The evidence before the Court showed
29
30
Tony Deverson and Graeme Kennedy (eds) The New Zealand Oxford Dictionary (Oxford
University Press, Melbourne, 2005) at 674; see also JA Simpson and ESC Weiner The Oxford
English Dictionary (2nd ed, Oxford University Press, Oxford, 1989) vol 9 at 223–225; and
Philip Babcock Gove (ed) Webster’s Third New International Dictionary (17th ed, G & C
Merriam Co, Springfield (Mass), 1976) vol 2 at 1362.
Reasons for verdict, above n 1, at [152].
that the 2010 digging went nearly 50 metres past the survey mark “chainage 1900”.
Mr Woolley initially accepted that in 1990 the digging finished at chainage 1900 and
a similar distance in 2000, although when the evidence about the distance of the
2010 digging was put to him, he then said that he had not quantified the distance in
1990.
[60]
There was therefore evidence to support the proposition that this work went
beyond keeping up or preserving the existing channel certainly in comparison with
the state of the channel in 2007. We consider it follows from this that the deposits of
soil and vegetation that resulted from the disturbance of the riverbed (count 1) were
not maintenance.
[61]
We dismiss the appeal in relation to counts 1 and 2.
Sentence
[62]
The maximum penalty for each of the offences was two years imprisonment
and/or a fine of up to $300,000 per offence for individual offenders.31
The sentencing remarks
[63]
In assessing culpability, Judge Harrop considered, first, the nature of the
environment. Judge Harrop accepted there were “high ecological values” associated
with the wetland.32
[64]
Secondly, the Judge considered the extent of the damage caused.
Judge Harrop said this:33
The channel that resulted was approximately two to three metres wide, up to
two metres deep for about 270 metres. There was considerable damage to
the surrounding vegetation and destruction of everything to the west of the
channel for between five and 15 metres. So in total, an area of wetland
vegetation has been cleared amounting to about .18 hectares. Those works
have altered the hydrology of the wetland, resulting in loss of wet habitat
and its associated biodiversity being displaced by dry land habitat and
biodiversity and increased opportunity for weed invasion. In particular, it
31
32
33
Resource Management Act, s 339(1).
Sentencing remarks, above n 2, at [12].
At [13].
has been explained that the effect on the crack willow is that this proliferates
and becomes more difficult to remove as a result of the opportunity provided
by what you did. Much of the damage has been done to a range of native
species and indeed, it is difficult to determine exactly what has been
destroyed, such was the invasive nature of the work.
[65]
Thirdly, the Judge noted that Mr Woolley’s actions were deliberate.
Importantly, the Judge did not accept that Mr Woolley believed he could do what he
was doing. Judge Harrop pointed out that a reasonable person would have checked
and in his view Mr Woolley had not done that because he knew what the answer
would be if he had asked.
Further, the Judge found that Mr Woolley did the
activities for his own “selfish” reasons namely to increase productivity on his farm.34
[66]
Finally, the Judge considered that Mr Woolley had displayed “arrogance and
obstinacy”.35
[67]
The Judge took the view that the imposition of a fine would not be sufficient
to reflect the culpability but, if a fine was to be imposed, the Judge would increase
the amount of that fine by about 25–30 per cent because of Mr Woolley’s previous
convictions. Judge Harrop explained:36
I accept that an increased fine would be appropriate because of those
previous convictions. As to the extent of the uplift, I would say around 25 to
30 percent or something like that. But more importantly, I accept
Mr Webber’s submission [for the Crown] that this offending, with its
aggravating features, when looked at in the context of your previous conduct
and your attitude over many years, takes this into a different sentencing
league from a fine. I do not accept that the purposes and principles of either
the Sentencing Act [2002] or the Resource Management Act would be met
by the imposition of a fine. You are clearly somebody who has substantial
assets and wealth and I do not accept, in particular, that fining you would
deter you. It has not deterred you in the past and something more is
required.
[68]
A community-based sentence was not seen as appropriate because of
Mr Woolley’s uncooperative attitude throughout the sentencing process.
[69]
At that point, because of Mr Woolley’s non-cooperation, home detention was
not available. The Judge saw a four month term of imprisonment as the only option
34
35
36
At [17].
At [18].
At [40].
but adjourned the sentencing to allow for home detention options to be explored.
Judge Harrop obtained a further report on home detention and, subsequently,
imposed a sentence of two months home detention.
[70]
The Judge upheld the claim for reparation in full.
The appeal against sentence
[71]
The sentence appeal raises two issues.
First, whether the sentence was
manifestly excessive, and, secondly, whether the quantum of reparation was
manifestly excessive.
[72]
As to the first issue, no change to the sentence is necessarily warranted
following the quashing of two of the convictions. That is because Judge Harrop
dealt with sentencing on a global basis treating the counts as one package.
[73]
The principal argument for Mr Woolley is that maintenance of the channel
was a lawful activity and so, although Mr Woolley’s actions went beyond that,
imprisonment is an inapt starting point. There would be some force in this argument
if maintenance was a lawful activity. As we have noted, that proposition is not
necessarily correct.37 However, as we have not decided that point, we proceed on the
basis that it may be correct. That said, for the reasons which follow, we have
concluded that the sentence, although stern, was within the available range.
[74]
First, the evidence supports the Judge’s conclusions as to the nature of the
environment and as to the extent of damage caused. There was evidence about the
environmental significance of the wetland generally and about specific, important,
plant species present there. Secondly, and importantly, in terms of Mr Woolley’s
primary challenge to the sentence, Judge Harrop did not accept Mr Woolley’s
evidence that he believed his actions were lawful. There is no basis for challenging
that finding. This was, therefore, a deliberate flouting of the requirement to obtain
consent.
Finally, given Mr Woolley’s history of similar offending, personal
deterrence warranted a stern response.
37
Above at [47]–[48].
[75]
As to that latter point, this Court in R v Conway has noted that sentences of
imprisonment may be imposed in cases under the Act where deterrence is an
important sentencing factor.38 This Court said:
[65]
… A short sentence of imprisonment may well deter Mr Conway
from behaving in this way again. He will realise that further offending of
this type is likely to result in a longer period of imprisonment. Equally, it
may well deter other members of the community, of similar mind to
Mr Conway, from ignoring or deliberately flouting the provisions of the Act
or orders of the Environment Court.
[66]
If a sentence of imprisonment were not imposed potential offenders
might well regard the economic risk of a fine, or the possible sanction of
community work, as a risk worth taking to gain profit from illegal activities.
A short sentence of imprisonment (as evidenced by Mr Conway’s appeal to
us to impose community work) is much more likely to be regarded as a
deterrent by the community than a sentence of community work.
[76]
Mr Woolley was found guilty of offences relating to dairy effluent in 2005.
Mr Woolley was fined on that occasion.
Mr Woolley and his company were
sentenced in a similar matter in November 2008. The sentencing Judge in that case
said that Mr Woolley had turned a blind eye as to any need to inquire about his
obligations. In October 2010, Mr Woolley and his company were sentenced to a
total of 11 charges under the Act. Nine of those related to Mr Woolley personally.
Again, the offending involved discharging dairy effluent. The sentencing Judge
there said the offending displayed “an attitude of disregard for the effects on the
environment”.39
[77]
Judge Harrop
also
referred
to
pertinent
remarks
made
in
the
Environment Court as follows:40
In 2005, Judge Thompson said that the Court had been left with the plain but
unfortunate impression that [Mr Woolley was] having difficulty accepting
[his] responsibility as a dairy farmer was to undertake … operations in an
environmentally sustainable way and that time and standards had moved on
and [Mr Woolley] had to move with them.
[78]
Against this background, we do not consider the sentence of home detention
was manifestly excessive.
38
39
40
R v Conway [2005] NZRMA 274 (CA); see also Conway v R [2013] NZCA 438, [2013]
NZRMA 461 at [70]–[71].
Sentencing remarks, above n 2, at [34].
At [35].
[79]
The quantum of reparation is challenged on the basis that sum reflects the
cost of returning the land to pre-European status.
Mr Clark says that is not
appropriate given this area is a drainage channel which must have ongoing
maintenance.
[80]
Judge Harrop had the benefit of a full report on this matter. He considered
the arguments, raised again on appeal, by Mr Woolley on the topic. The Judge
concluded that it was not a case of a “Morris Minor wetland which is now going to
be turned into a Rolls Royce wetland” as a result of the reparation order.41 Nothing
put before us shows this conclusion was wrong.
Result
[81]
The notice of appeal was filed a day late. We extend time to file the notice of
appeal.
[82]
The appeal against conviction is allowed in part. The convictions on counts 3
and 4 relating to breaches of s 9(3) of the Act are quashed. There is no order for a
retrial. We dismiss the appeal against sentence.
Solicitors:
Wisheart Macnab & Partners, Blenheim for Appellant
Crown Law Office, Wellington for Respondent
41
Sentencing remarks, above n 2, at [52].