Case example A

Waiheke Island Country Club Ltd v Auckland City Council

The Waiheke Island Country Club applied for an interim enforcement order against the Auckland City Council requiring it to immediately cease works associated with depositing septic tank sludge and sewage on land owned by the Council. The land was leased to a golf club, which is next door to the Waiheke Island Country Club. The Council had been dumping septic tank sludge at two sites, but the resource consents for these sites expired in December 1997.

The Council, under s 330, undertook earthworks to prepare the site on the golf club land. The Environment Court considered whether the works undertaken by the Council to prepare the site on the golf club land and the intended disposal by the Council of raw sewage on the site could be undertaken under the emergency powers in s 330 and s 331.

The Court held that because the Council had failed to act for several years to address the issue of sewage disposal, it could not then rely on the emergency powers. The Court granted an interim enforcement order requiring the Council to halt all works. The Court found:

... it is surprising and indeed alarming that the matter of proper treatment and disposal of sewage on Waiheke Island has been allowed to reach a stage where the Council is resorting to emergency measures pursuant to the provisions of the Act.

W5/98.

Chisholm v Auckland City Council ([2002] NZRMA 362) flows from the Waiheke Island Club case. Mr Chisholm brought four causes of action against the Council. Mr Chisholm proposed to develop land adjoining the golf course. Part of Mr Chisholm's case in the High Court was that the Council's actions had caused his proposed investors to withdraw their money from the development. It is interesting to note the Judge's comments at paragraphs 107 to 109:

[107] My clear conclusion on the evidence presented to me is that the council could have relied on s 330 to justify sewage disposal on the golf course site. When Mr Hadlow closed his gates, the island's capacity to accept sewage dropped to 8 m3 a day. There was a real prospect that the amount of sewage would significantly exceed that figure. If it did, what was to happen to it? It had to be disposed of somewhere. The council was, in my view, obliged to take 'immediate remedial measures' to ensure that sewage could be disposed of.

[108] I respectfully agree with the interpretation of s 330 adopted by Judges Bollard and Whiting. With respect to Judge Kenderdine, who no doubt had to give a decision under a severe time constraint, I disagree with her analysis, which appears to introduce concepts of fault into the interpretation of s 330.

[109] I should make clear that, in making my finding that the threatened action comes within s 330, I am relying on the evidence presented to me. I have not been told what evidence was given to Judge Kenderdine.

Mr Chisholm appealed to the Court of Appeal. (Chisholm v Auckland City Council CA 32/02, 29/11/02, Tipping, Hammond, William Young JJ), but that judgement does not discuss the Judges’ comments about s 330.

Case example B

Auckland City Council v Minister for the Environment and others

The Auckland City Council applied for a declaration to clarify the emergency powers in s 330.

The declaration sought was as follows...

The Council hereby applies for a declaration in respect of section 330 of the Act, headed “Emergency Powers”; as to the following:

That where a natural or physical resource or area (“the Resource”;) is one (over) which a local authority or consent authority (“the Authority”;) has jurisdiction is, in the opinion of the Authority, likely to be affected by an adverse effect on the environment which requires immediate or preventative measures, the Authority may take steps to remove or mitigate the cause of the actual or likely affect [sic] of that adverse effect

(a) where the adverse effect is threatened or is likely but has not actually occurred; or

(b) whether or not the adverse effect could have been reasonably foreseen or predicted by the Authority notwithstanding the provisions of sections 9, 12, 13, 14 and 15 of the Act.

That the word “emergency”; includes for the purpose of section 330(1)(b), (d), (e) and (2) of the Act an adverse effect on the environment which requires immediate preventative or remedial measures, whether or not the adverse effect is likely but has not actually occurred or could have been reasonably foreseen or predicted by the Authority.

The factors which the Authority must properly take into account in taking steps to prevent, remedy, mitigate or remove the cause of an adverse effect for the purposes of section 330(1)(d) and (e) of the Act or a sudden event causing or likely to cause loss of life, injury or serious damage to property for the purposes of section 330(1)(f) of the Act.

The initial reason for the application for declaration was because of uncertainties over the interpretation of s 330 in relation to disposal of sewage generated on Waiheke Island (refer Case Example 10a).

It was agreed at the hearing that the application for declaration was not to be by reference to Waiheke and sewage disposal, and the parties sought a declaration on s 330 without reference to any particular factual background or issue.

Paul Cavanagh QC as amicus curiae (a barrister not engaged in the case who assists a Judge in Court on points of law) presented the counter argument. The Court noted that s 330(1) specifies a set of interrelating circumstances. In summary, three areas of judgment can be seen to apply:

(1) whether there is a situation under paras (d), (e) or (f) of s 330(1):

(d) an adverse effect on the environment which requires immediate preventive measures, or

(e) an adverse effect on the environment which requires immediate remedial measures, or

(f) any sudden event causing or likely to cause loss of life, injury, or serious damage to property—

(2) the formation of an opinion of effect or likely effect upon the public work, natural and physical resource or area, or project or work or network utility operation

(3) a decision as to the action to be taken; that is, whether to remove the cause of the emergency or to mitigate any actual or likely adverse effect of it.

The judgments of the person/body considering taking action must be objective and that of a reasonable person/body acting in the particular circumstance. The action to be taken must be “ immediately necessary and sufficient”; for the relevant purpose (immediate response). When s 330 is properly invoked, the authority acting in accordance with s 330 is entitled to claim immunity from prosecution under s 18(2).

The Court referred to Canterbury Regional Council v Doug Hood (30/06/98, Judge Skelton, DC Christchurch CRN 7076006424) and said that the case reflects the care that needs to be applied in analysing the factual background to determine whether the offence falls within the ambit of s 330. The Court held that local authorities when acting pursuant to s 330 must act responsibly within the bounds of the section:

From that analysis it is evident the section cannot be regarded as a general “fallback”; provision that can automatically be relied on in any perceived “emergency”; as an effective answer to complaints of unlawful interference with private rights. Because of the section’s specifically defined circumstances of applicability, we agree with Mr Cavanagh’s submission that local authorities and others should not forsake or compromise their responsibilities under the Act’s wider framework of regional and district planning and control on a footing that s 330 is “always available if things go wrong”;. Important though the section is, its terms are such that it cannot be viewed as an ultimate resort for every contingency.

The Court held that if a person/body anticipates that a “ sudden event”; of a certain type could occur at some time in the future but decides not to put in place measures to cope with the contingency because of lack of finance, political disagreement or some other reason, this would not negate the ability of that person/body to rely on s 330, subject to the three aspects being satisfied.

The example given by the Court is: the fact that a sudden rainstorm event may have been expected to affect an area at some time in the future does not make the event any more or less sudden when it occurs.

The Court held that the fact that a situation or occurrence contemplated by s 330(1) may have been foreseen as a possibility does not operate to prevent an “emergency”; from arising if the qualifying aspects are satisfied.

A112/98.

Case example C

Warren Fowler Ltd v Manukau City Council

The applicants applied for three (alternative) orders. One of the orders sought was a declaration as to s 330 emergency powers.

The applicants Warren Fowler Ltd (WFL) operate a quarry in Clevedon, south of Auckland. WFL applied for a declaration that the Council may direct the applicants under s 330(2) of the Act to remove 40,000 m³ of overburden and loose material from the quarry.

The Council, through the affidavit of one of its staff, expressed the view that in the Council's opinion there was no emergency. Environment Judge Jackson refused the application for declaration. Judge Jackson held:

I do not readily read down the powers of the Court in relation to declarations because the scope of declarations appears to be deliberately stated widely so that frustrating jurisdictional issues do not arise. However, how useful a declaration could be about the reasonable opinion of a local authority (reached in haste because it is a possible emergency) is very debatable. There would inevitably be questions of fact (often highly contentious in themselves) which are not readily susceptible to declaratory orders.

I do not say no declaration could be made about these issues, but I cannot see an appropriate one in these circumstances ... The Court has jurisdiction to make a declaration that the Council may exercise its discretion under section 330. However, such an application would be futile and an abuse of process.

Judge Jackson made an order striking out the application for declaration but reserved leave to WFL to re-apply if it “can find a wording for a declaration that might serve some useful purpose”;.

C29/99.

Case example D

Southland Regional Council v Invercargill City Council

An application was made by the Invercargill City Council to strike out charges laid by the Southland Regional Council on the grounds that the City Council acted pursuant to s 330 and was immune from prosecution. Judge Treadwell held:

(a) that an objective test applies to the word “opinion”; in s 330; namely, whether the situation is one that a reasonable person would consider qualified for emergency action in terms of the section

(b) the informant has to prove that s 330 does not apply.

Judge Treadwell was not prepared to strike out the charges against the City Council but warned the Regional Council that if it proceeded with the prosecution and failed, the question of costs would arise. The Invercargill City Council subsequently pleaded guilty to one charge and was convicted, but no fine was imposed (8/07/97, Judge Kenderdine, CRN 6025006855).

23/12/96, Judge Treadwell, CRN 6025006200 and 6855

Case example E

Canterbury Regional Council v Doug Hood Ltd and another

The Canterbury Regional Council prosecuted Doug Hood Ltd and Mr Hollingum, an employee of the company, for discharge of contaminants into the Opuha River. One of the defences raised by the defendants was immunity from prosecution pursuant to s 18 and s 330.

The defendants were responsible for the construction of a dam called the Opuha dam. Due to unusually heavy rainfall, which occurred during construction but after completion of the dam embankment, the defendants became concerned that the embankment was likely to overtop and cause a partial collapse of the dam into the river. The defendants anticipated this would cause considerable damage to the land downstream of the dam.

The defendants arranged for a temporary channel to be cut into the side of the dam to divert water around the dam in an attempt to relieve pressure and the build-up of water behind the dam. Notwithstanding this, however, the build-up of water was such that the dam overtopped and partially collapsed. The defendants claimed that the action of cutting the temporary channel was taken pursuant to s 330 and they relied on the immunity in s 18(2).

The Council accepted that Opuha Dam Ltd, with whom Doug Hood Ltd had entered into a contract to construct the dam, is a network utility operator. The Council also accepted that the defendants were acting on behalf of Opuha Dam Ltd and any activity undertaken by them to remove the cause of or mitigate any actual or likely adverse effect of an emergency would come within s 330(1).

Judge Skelton took a contrary view to Judge Treadwell in the Southland Regional Council v Invercargill City Council case (23/12/96, Judge Treadwell, CRN 6025006200 and 6855) and held that the onus is on the defendant to prove that s 330 applies. The Court held that the discharge with which the defendants are charged did not remove or mitigate any actual or likely adverse effect of the emergency – assuming there was an emergency. On the contrary, it did in fact cause damage, both to the work itself and downstream. The Court held that the immunity from prosecution in s 18(2) and s 330 was not available to the defendants.

The defendants were convicted. The defendants appealed against their conviction (19/10/99, Panckhurst & Chisholm JJ, HC Christchurch AP192/98). The appeal was heard by two High Court judges. One of the grounds of appeal was that the defendants were immune from prosecution under s 18(2). The High Court rejected this argument and held that:

We accept that the cutting of the release channel was an “activity undertaken”; in the face of an emergency situation. But, does the protection, or immunity, provided by s 330(1) avail the appellants when they are charged not on the basis of that particular activity? We think not.

The focus of the charge lay elsewhere. The appellants were in control of the construction of an earth dam. By its very nature it could not be safely overtopped in the event of a flood during the course of construction. The possibility of a flood was an ever-present risk. When this flood occurred no means existed to address that known risk. So viewed, the activity of cutting the release channel was a response to an emergency of the appellant's own making. In our view the protection afforded by s 330(1) is not available in such situations.

The High Court expressed a contrary view to Judge Skelton on the onus of proof and indicated that the onus is on the informant to establish that s 330 does not apply. The Court stated:

We think it undesirable to express a concluded view since the point does not require determination. However, we note that s 341(2) of the Act, ...expressly provides defences to certain offences of strict liability (including offences against s 15) where "the defendant proves ...”; the matter available by way of defence. We think it would be strange if within the one Act different sections cast an onus upon a defendant, yet one did so expressly and the other only by implication. In short, the absence of an express reference to a reverse onus in s 330 (1) suggests to us that the onus of proof remained on the informant.

30/06/98, Judge Skelton, DC Christchurch CRN 7076006424