Abatement notices
Zdrahal v Wellington City Council [1993] W010/93
The Wellington City Council issued an abatement notice in October 1992 against Paul Zdrahal and Christine Moffat requiring them, as owners of a property in Karori, to remove an offensive and objectionable motif by taking all reasonable steps to paint out a swastika visible on the side of a house.
Zdrahal and Moffat appealed the notice. The Planning Tribunal dismissed the appeal (W10/93). The Tribunal in the decision queried why the Council chose to proceed under s322(1)(a)(ii) of the Act instead of s322(1)(a)(i). At page 2 of the decision:
We do not know why the Council chose to act in this way because rules in its Transitional Plan in relation to control of signs are clear and would not have required this Tribunal to enter into a subjective assessment as to whether the swastika is or is not objectionable.
The Tribunal held that sub-paragraphs (i) and (ii) of s322(1)(a) are in the alternative (they are written so that either are grounds for issuing a notice) and the Tribunal does not have any inherent power to amend the notice. The Tribunal made it clear that on the evidence the appellants could not resist an abatement notice based on the rules in the Transitional District Plan.
Zdrahal appealed to the High Court. The appeal failed and the abatement notice was upheld.
One of the grounds of Zdrahal's appeal was that, because the two swastikas had already been painted, there was nothing that the abatement notice could require Zdrahal to cease or prohibit him from commencing; the action which was alleged to be offensive was completed and the words of the Act were not applicable. Nothing remained to be prohibited that in ordinary use of the English language could cease.
The High Court held that s17 and 322 need to be read together to enlarge the application of s322, to include a requirement to cease an activity which may have an adverse effect or which may be offensive to that extent. The Court held that the meaning of s322 was plain and intended to apply to continuing effects and continuing activities.
Another ground of appeal was that the swastikas were not offensive or objectionable in terms of s322. If the swastikas were offensive or objectionable, they were not offensive or objectionable to such an extent that they had or were likely to have an adverse effect on the environment. The Court held:
What may be offensive or objectionable under this Act cannot, I think, be defined or prescribed except in the most general terms. Each case will perforce depend upon its own circumstances. What may be offensive or objectionable in a quiet suburban street may not be so in a busy commercial downtown area or in a zone where heavy industry is concentrated … The test must be an objective one. ... In a sense the decision on matters such as this must be subjective because it is what is perceived by the ears or the eyes and its effect on the individual and his personal well-being.
Offensiveness or objectionability cannot be measured by a machine or by some standard with arithmetical gradations. It is a matter of perception and the interpretation of that perception in the mind. The Tribunal in a case like this must transpose itself into the ordinary person, representative of the community at large, and so decide the matter.
Lendich v Waitakere City Council [1999] A077/99
Lendich Construction Ltd, an earthmoving and heavy haulage contracting company, and another party appealed abatement notices issued by the Waitakere City Council. The notices required that the property cease to be utilised as a storage and maintenance depot. The appellants had three grounds of appeal; one of these grounds was that there were existing use rights attached to the site as the activity had been carried on since 1956.
The Court found that existing use rights had been established. The Court also found that it had jurisdiction to amend the notice by imposing appropriate conditions to mitigate the adverse effects of the activities. The proceedings were adjourned to allow the parties an opportunity to agree on appropriate conditions.
The Council relied on s17 of the RMA and this gave rise to two jurisdictional issues:
i. Were the abatement notices worded adequately to allow the Council to rely on s17?
ii. Did the Court have jurisdiction to amend the abatement notices?
The Court considered three decisions: Rees v Whangarei District Council [1996], Dunn v Clutha District Council [1996] and Zdrahal v Wellington City Council [1994] (HC).
In Rees, Judge Treadwell held that it was "highly desirable" that an abatement notice should contain references to the precise subsections of s322 which the appellant is alleged to have infringed. Judge Treadwell also said that the absence of such a reference should not necessarily be elevated to a status where such absence would cause the notice to become defective. The Court in Lendich agreed with Judge Treadwell.
In Dunn, Judge Jackson said:
Section 324 of the Act directs what the form and content of an abatement notice are to be. In particular, section 324(b) requires that the reasons for the notice are to be given. We hold that the obligation to give reasons is mandatory in a "summary judgment" proceeding such as an abatement notice which puts the onus on the appellants to take action to set it aside. In particular the appellants should not have to refute reasons not referred to in the notices. Accordingly we hold that we have no jurisdiction to support the abatement notices under section 17, because the wording in section 17(3) was not raised as a reason for the notice.
In Zdrahal, one ground of appeal was that the abatement notice was defective because it did not comply with Regulation 27 of the Resource Management (Forms) Regulations 1991. The Court held that Zdrahal's objections:
… are based on a highly technical and mechanical application of the regulation and the form which insists upon an exact and complete compliance with the form without any regard to the substance of the matter. … In its entirety the form fully and adequately complied with the regulation and the prescribed form and clearly informed the appellant of all necessary and relevant matters. It is important to note that the regulation itself permits a form "to the like effect", thus emphasising the importance of the substance.
The Council in Lendich submitted that Judge Jackson in Dunn does not say that s17 must be expressly referred to, and the tenor of that decision is that the grounds set out in s17(3) must be identified in the reasons for the abatement notice to allow reliance on s17.
The Council submitted that the abatement notices contained grounds which, taken collectively, address the substance of s17(3)(b).
Clauses 2(vii) and 3(ii) of the abatement notice stated:
2 (vii) That use of the property as a depot results in actual or likely adverse effects on the environment, including-
a. Noise and vibration from heavy vehicles including trucks entering and exiting the property;
b. Visual/aesthetic impact on the amenity values of the environment;
c. Use of the property as a depot being incompatible with the use of surrounding properties as a residential area;
d. Dust generated by vehicular use of the property as a depot, particularly during summer months.
3 (ii) This action is necessary to ensure compliance with rules 10 and 10.4 and rules 2, 8, 10.4 and 14.1 of the Proposed and Transitional District Plans respectively and to remedy the adverse effects and likely adverse effects referred to herein".
The Court in Lendich held that:
We consider that it is important for an abatement notice to fully and fairly inform the recipient not only of the action they are required to take, or refrain from taking, but also of the grounds upon which the notice is issued.
It is clear from the cases cited to us and other decisions of the Tribunal and this Court that Councils need to take considerable care in the drafting of their notices because of the consequences which flow from them. However, the Court should, in our view, take a robust attitude to objections and arguments based on technical and mechanical non-compliance with the form and the regulation without regard to the substance of the matter. It is a question in each case as to whether the notice taken in its entirety adequately complies with the regulation and the prescribed form and clearly and fairly inform the recipient of all necessary and relevant matters.
The Court held that the notices addressed the substance of s17(3)(b) and also the substance of s332(1)(a)(ii). The grounds contained in clause 2(vii)(a)-(d) all relate to adverse effects, and clause 3(ii) of the notices refers to the need to remedy adverse effects. The Court also held: "That the appellants have not been misled is shown and that they adduced evidence relating to the adverse effects and proffered conditions designed to mitigate them."
Britten v Auckland Council [2011] NZEnvC 357
In Britten, the appellants had been working towards establishing and operating a model railway for at least seventeen years. The project had been beset by a number of problems which meant that, visually, the property resembled a clean fill site. The amount of concrete rock and other fill material that has been imported onto the site resulted in the Council issuing an abatement notice against the appellants. The abatement notice required the appellants to stop such importation which was said to be in breach of the relevant District Plan and not authorised by a resource consent. The appellants appealed against the issuing of the abatement notice.
The appellants submitted that the Council had the entire burden of proving the appeal, including that the activity complained of contravenes a resource consent. The Council accepted that it is required to prove the primary facts relied on in the abatement notice but submitted that the onus then shifts to the appellants to establish that their activities are authorised by a resource consent as claimed in their appeal.
The Court considered the approach adopted in Langbridge v Auckland City Council (A94/204) and Woolley v Marlborough District Council (W64/2005) where the Environment Court affirmed that a Council was not required to negative the possibility of an existing use under s10 of the Act (i.e. if that issue was raised by an appellant, then the appellant assumed the burden of satisfying the Court that such a use existed).
The Court considered that the same reasoning should apply to this case. As it is the appellants who are asserting that their actions comply with a resource consent they hold, it is for them to satisfy the Court of this, rather than for the Council to prove that they were not acting under a resource consent. The Court stated that it is clear that the civil standard of proof applies having regard to the gravity of the matter.
The Court also considered whether the enforcement officer had reasonable grounds for issuing the abatement notice. The enforcement officer relied upon a professionally prepared analysis to estimate the fill volume but the analysis was known to contain some inaccuracies. The Court referred to Black v Southland Regional Council (C104/94), which had accepted hearsay as the basis for a reasonable grounds for issuing an abatement notice and concluded that the analysis relied on by the enforcement officer in this case was superior to hearsay. In holding that the enforcement officer did have reasonable grounds for issuing the abatement notice the Court commented that "Reasonable grounds" do not mean compelling grounds or certain grounds but grounds that are reasonable.
The Court considered that the council's lack of appropriate supervision of a resource consent and the timing of service of the abatement notice (immediately prior to Christmas) were relevant to the exercise of its discretion but, in any event, confirmed the abatement notice.
Black v Southland Regional Council [1994] C104/94
The Southland Regional Council issued an abatement notice to the Black family requiring them to lower the crest height of a stopbank and to remove a 53-metre extension to the stopbank. The Blacks appealed the abatement notice.
The Tribunal was unable to find on the balance of probabilities that the Blacks had added to the pre-February 1991 height of the stopbank. The Tribunal was not persuaded that the stopbank, whether it had been raised or not, was in any material way aggravating the effects of flooding on two other properties. Therefore, even if the Blacks had raised the height of their stopbank, the Tribunal would not be prepared to require the Blacks to lower it to mitigate adverse effects from flooding. The abatement notice was cancelled.
The Blacks applied for costs and $12,000 was awarded against the Council (C30/95). One of the arguments raised by the Blacks was that the enforcement officer did not have reasonable grounds for believing that the appropriate circumstances existed before serving the notice.
The Planning Tribunal determined the proceedings in favour of the Blacks on other grounds, but addressed the submissions made as to whether the enforcement officer had reasonable grounds for belief. The enforcement officer who issued the notice had not inspected the stopbank. The enforcement officer was briefed by operations staff, was present at a meeting of the operations committee of the Council, reviewed the file and discussed matters with another enforcement officer.
The Blacks argued that the enforcement officer who issued the notice was relying on hearsay evidence and this was insufficient. Counsel for the Blacks referred to various criminal law cases in support of his argument. The Court at page 18 held:
Section 322(4) of the Resource Management Act 1991 does not prescribe any particular manner in which an enforcement officer is to be satisfied that he or she has reasonable grounds. It seems to us, however, that if, in the context of the criminal law, hearsay evidence can provide sufficient information upon which to obtain a search warrant or upon which the Commissioner of Police can issue a certificate, then, depending of course on the nature of that evidence, it should be sufficient to provide an enforcement officer with reasonable grounds for belief for the purposes of section 322(4) of that Act.
The Court found that the enforcement officer had sufficient information to issue the abatement notice.
Christchurch City Council v Blackett [1993] CRN 3009007407
An abatement notice was served on Mr Blackett, informing him that he had been using land at Jessons Road as an engineering business; and that this contravened the rules in the Rural 4 zone of the Paparua section of the Christchurch City Transitional District Plan relating to activities permitted in that zone.
The notice was served on 9 December 1992. The notice required Blackett to cease using the land for this purpose by 31 December 1992. Blackett did not appeal the notice.
On 12 January 1993 the enforcement officer found that the engineering business was still operating. The officer said he had observed the defendant, his brother John, and three other men in overalls in the workshop. He observed two men working on vehicles and he spoke to the defendant, who did not say much, except that a friend of his was working on his own vehicle.
The defendant said that before he received the abatement notice he had decided to move his business and had taken steps to do so. He said that when the enforcement officer visited his property in January 1993 he was not conducting the motor engineering business at all. Some engines were still there, but they were being progressively removed from the property. Indeed some were being removed on 12 January.
Blackett said that he did some work on his own Commodore that day and a friend of his was doing some work on his own Landrover. He explained that of the vehicles which the Council officer had photographed on 12 January, one belonged to his flatmate, another belonged to his uncle, a third belonged to his brother and others belonged to a friend of his. He denied completely that he had carried out any motor engineering work as a business since the end of December 1992. He called two witnesses, who confirmed his evidence.
Judge Skelton dismissed the charge because he was not satisfied beyond reasonable doubt that on 12 January 1993 the defendant was acting in contravention of the abatement notice (ie, the defendant was not using his property at Jessons Road for a motor engineering business "Repowers"). The Judge said in his decision:
I am in no doubt that some motor vehicle repair work was being carried out at 37 Jessons Road on 12 January 1993, and that remnants of the engineering business were still on the property that day. However I cannot say that the business itself, and in particular the business relating to Repowers, was being carried out on that property at that time.
It may be of assistance for me to add that if the defendant intends to continue using the property for the purpose of repairing motor vehicles, or allowing his friends to do so, he will have to be very careful about the nature and extent of that activity. He could still be in breach of the Transitional District Plan. However, for present purposes I have to accept the explanation that he and his supporting witnesses have given and that being so this information is dismissed.
Hanodi v Manukau City Council [2009] A125/09
The Council issued an abatement notice requiring the appellants to relocate a shed erected on the northern portion of the property in order to comply with the rear yard requirement of the relevant District Plan. The enforcement officer failed to measure the distances involved or locate the survey pegs to ascertain the location of the property boundary.
The Court recognised that this is not a criminal prosecution requiring proof beyond reasonable doubt but considered that these were factual issues crucial to the validity of the abatement notice. The Court should be able to expect that the Council will produce the best available evidence, particularly when that can be done at minimal inconvenience and expense by looking for boundary pegs or taking simple measurements. For these reasons the Court was not prepared to accept that the Council had made out the factual support for the abatement notice.
Schmuck v Far North District Council [2000] A026/2000
Schmuck appealed an abatement notice concerning the operation of his boat yard at Ōpua. The grounds of appeal included:
i. the abatement notice was flawed and contradictory because it did not specify the particular rules in the plan which had been breached
ii. the reference to the resource consent was misleading.
The reasons given in the notice were:
Your [sic] are undertaking activities on the esplanade [sic] reserve including but not limited to the following in breach of district plan rules and without having obtained the necessary resource consent. Work carried out on boats including…
Judge Sheppard did not accept the grounds of appeal and held:
i .it is plain that reason (a) in the abatement notice is an assertion that the activities described are not authorised by the plan or by a resource consent
ii. a copy of the consent was attached to the abatement notice and the reference to the consent was not misleading.
Oliver v Marlborough District Council [1999] W126/99
An abatement notice was issued by the Marlborough District Council to Oliver concerning a mooring laid by Oliver in Queen Charlotte Sound. Oliver appealed the notice. One of the grounds of appeal was that the notice was invalid because it did not state section 322 and the subsection on which the Council relied. Oliver's lawyer relied on McNoe v West Coast Regional Council.
Judge Kenderdine:
a. held that there is no requirement in s324 and Form 24 (now Form 48) to state the subsection of s322 which is relied upon
b. followed Zdrahal , in which the High Court held that the question is whether in its entirety the notice fully and adequately complies with the form, and clearly informs the recipient of all necessary and relevant matters.
Whakatane District Council v Byrne [1993] CRN 3087005974 and 6749
Abatement notices were served on the Byrne family. The abatement notices required removal of a signboard which contravened the Transitional District Plan. The charges were dismissed because the abatement notices had the following defects:
• The notices did not specify the date on or before which the required action was to be taken.
• The notices misstated the deadline for lodging an appeal.
• Each notice required removal of '"a signboard" whereas there were in fact two signboards involved (one signboard was above the other.)
Amor v Gisborne District Council [1999] A145/99
The Gisborne District Council issued an abatement notice to Amor, a poultry farmer, requiring removal of all poultry. The reasons for the notice were "to avoid and remedy the actual and adverse effects on the environment of the effects of the flies" caused by the operation of the poultry farm. Amor applied for a stay.
The Court granted the stay and held:
a. It was unreasonable to require Amor to remove 17,000 birds.
b. The imposition of less extreme fly control measures would be more appropriate.
Page v Wanganui District Council [2012] NZCA 324
Page appealed against convictions related to alleged history of contravention of terms of abatement notices issued by the Council following unauthorised earthworks and storm water diversions that caused silt-laden water and mud to discharge on to neighbouring residential property. Page contended that because he had applied to cancel one of the abatement notices and had lodged an appeal to the Environment Court, he did not need to comply with that abatement notice and subsequent Court orders.
The Court of appeal confirmed that an appeal against an abatement notice does not operate as a stay of the abatement notice. As a matter of statutory construction, the absence of any reference to s325A in s323(1)(a) of the RMA suggests that Parliament envisaged that abatement notices continue to have lawful effect until such time as a judicial order is made to stay compliance. That is emphasised by the prescriptive terms of s325, particularly the information to be provided to support a stay and the factors that an Environment Judge must take into account in determining whether to make an order.
Enforcement orders
Berhampore Residents Assn Inc v Wellington City Council [1992] W095/92
The Planning Tribunal (as it then was) held that an enforcement order must be couched in precise terms in order that it may be capable of enforcement.
Section 316(1) provides that any person may at any time apply for an enforcement order of a kind specified in paragraphs (a)-(d) of s314(1), or in s314(2). The Tribunal construed subsection (1) of s316:
… as requiring the applicant to specify with a degree of precision the action it seeks on the part of the respondent because all of the relevant subsections commence with the expression "require a person to …".
The Berhampore Residents Association had originally asked for an order in the following terms:
An order prohibiting outdoor musical concerts at Athletic Park, 413 Adelaide Road, Wellington, at which amplified electric music is played.
The Tribunal held that an enforcement order should not contain any debatable or conjectural material. The Tribunal was prepared to make an order but not to draft its terms, and required a draft enforcement order from the applicant.
The parties filed memoranda, and in an attempt to resolve the differences between the parties the Tribunal suggested an order as follows:
The Tribunal prohibits the Wellington Rugby Union (Inc) and its successors and assigns from commencing or continuing any musical concert making use of amplified music on the property known as Athletic Park, Adelaide Road, Wellington, after 6.30 pm and before 11.00 pm if such concert is likely to produce sound which exceeds 68 dBA leq measured at any residential or hospital property boundary in the vicinity. Amplified music is totally prohibited between 11.00 pm and 9.00 am. The expression 'concert ' shall include any music, sound or equipment testing ancillary to the actual concert and connected therewith occurring before or after the main event.
In decision W92/93 the Tribunal held that a meaningful order could not be made because of the complexity of enforcement.
The Tribunal then determined in decision W92/93 that the draft by the Tribunal might go beyond what is reasonable and might be difficult, if not impossible, to police. The Tribunal directed the council to take steps to put in place controls to monitor potential breaches not within the direct control of the council. The Tribunal concluded that the correct approach was through the district plan procedures, which would impose a duty upon council to enforce the observance of those provisions. The Tribunal declined to make an order in the terms sought.
Balfour v Central Hawkes Bay District Council [2006] CA174/06
This case involved an application for leave to appeal to the Court of Appeal (CA174/06). In a decision on 27 June 2005 the Environment Court had granted enforcement orders and awarded costs against the applicants, David Balfour and others, relating to keeping 160 dogs on their property. On appeal, Justice Miller in the High Court concluded that the enforcement order and costs award had been too extensive. The applicants sought leave to the Court of Appeal in the hope of having the order and costs set aside in their entirety.
The applicants took issue with a decision of the Environment Court, confirmed in the High Court: that any existing use rights they might have had for keeping the dogs, did not prevail over their statutory duty under s16 to adopt the best practicable option to keep noise to a reasonable level. (The applicants had a resource consent from 1983 to keep 40 dogs, then between 1992 and 1999, kennels were a permitted activity with no scale limitation.)
The Court of Appeal recognised that s10 (existing use rights) provided an exception to compliance with a district plan, but not to the s16 duty for which the council had sought the enforcement order. The applicants then had to rely on s319 (decision on application), if they were to resist the order. The Court stated that s319 does not explicitly provide for a defence based on existing use rights, rather on compliance with current rules, resource consents or designations where the adverse effects in respect of which the order was sought were expressly recognised by the (plan, consent, or designation) decision-maker at the time. There was also no evidence that the person who approved the 1992 plan and made kennels permitted at the applicants ' location, expressly recognised the adverse effects of excessive noise from keeping dogs. On these grounds the appeal was rejected.
Conway v Auckland Regional Council [2007] NZRMA 252
In 2002 the Council obtained enforcement orders from the Environment Court requiring the appellants to cease operating a storage and disposal point for demolition materials and remove material stored on the property. The appellants did not heed the terms of the enforcement orders and the Council prosecuted under s338 of the RMA.
Following further non-compliance, Council commenced proceedings in the District Court seeking orders that the individual appellants be committed to prison for their failure to comply with the enforcement orders and that further fines be imposed upon the appellants that were companies for their part in the ongoing failure to comply. The Council sought these orders under s79(2) of the District Courts Act 1947 (the Act), which permits a Judge of the District Court to issue a warrant of committal in order to enforce “any judgment or order of the nature of an injunction”. The District Court made the orders sought by the Council and the appellants appealed to the High Court.
The High Court considered that the fact that the RMA contains its own offence and enforcement provisions does not necessarily prevent s79(2) from being invoked in appropriate cases to enforce orders that are made under the Act. The legislature clearly intended Judges of the Environment Court to be able, in general terms, to exercise all of the powers of the District Court in its civil jurisdiction. To the extent that it wished to restrict that ability, the RMA contains express provisions to that effect. Otherwise, the Court considered that s278 of the RMA gives Judges of the Environment Court the power to invoke s79(2) to enforce the orders that they make under the RMA.
However, the Court ultimately held that Parliament did not intend enforcement orders that are made by Judges of the Environment Court to be enforced by Judges of the District Court. It left that task to the Environment Judges in the same way that it left all other proceedings in relation to enforcement orders to the Environment Judges. To the extent that s79(2) may be invoked at all, it may only be invoked by Environment Judges using the powers vested in them by s278 of the RMA. As a result, the orders made by the District Court were nullities because the District Court Judge lacked the power to make them. The Council ought instead to have filed proceedings in the Environment Court and asked an Environment Judge to make the orders that it asked the District Court Judge to make.
Water shortage directions
Jordan v Marlborough Regional Water Board [1982] 9 NZTPA 129 (PT)
The facts in Jordan were that Montana Vineyards was granted a further water right to take underground water for irrigation from one of its properties. Some of the water was to be used by another property four kilometres away.
The appellant Mrs Jordan claimed that her existing well, about 750 metres from the Montana property from which water was to be taken, was already affected by Montana's draw-off. Mrs Jordan argued that a water right should not be granted that would enable Montana to transport water outside the district, to the detriment of users within it.
The Tribunal found that the deficiencies complained of by Mrs Jordan were due mainly to defects in her well or pumping system. The Tribunal dismissed the appeal. The Tribunal made a comment about sections 24D and 24E of the Water and Soil Conservation Act - even though these sections did not have a direct bearing on the appeal, at page 133:
… we want to make it clear that we do not regard the presence of these two sections in the Act as justifying a Water Board in granting water rights in circumstances where it is unsure whether or not there is sufficient supply. In our judgment, these two sections are intended to cater for unforeseen circumstances.
The Tribunal also said:
In terms of s20, it is one of the functions of a Water Board to be knowledgeable about the water supplies in its region. We think it is a wrong approach (although we do not suggest that the respondent has done so in this case), to decide to grant a water right on the basis that if it happens to be wrong in its assessment, the Board can always fall back on s24D or, in an emergency, s24E. Those two sections were referred to in Napier City Council v Hawke's Bay Catchment Board (supra). We hope that what we have now said, in this decision, will be of assistance to the respondent and other Regional Water Boards who may face similar problems.
… we want to make it clear that we do not regard the presence of these two sections in the Act as justifying a Water Board in granting water rights in circumstances where it is unsure whether or not there is sufficient supply. In our judgment, these two sections are intended to cater for unforeseen circumstances.
Waikato Regional Council v Amrat Bhana and Hira Bhana Co Limited [1995]
Judgment as recorded by Karenza de Silva (there is no written decision)
In relation to the company, the background was as follows. The company owned a market garden, located in a valley with a small stream running through it, dammed at spasmodic intervals to serve a number of different garden operations. If water was short and upstream owners of a dam chose to irrigate their property, progressively downstream users would find themselves lacking of water. Environment Waikato issued a series of water shortage directions to operators in the valley, indicating a worsening situation as tighter measures were imposed. All the notices made it clear that the only purpose of extraction was for domestic use or fire-fighting or stock usage. The defendant company received and was aware of the orders.
On 3 February a further direction imposed a total restriction on the taking of any water for irrigation from the stream catchment. The notice erroneously referred to s199 but was fully within the powers of Environment Waikato; and it was perfectly clear what the notice intended to do. Judge Treadwell was satisfied that no one would have been taken unawares.
The subject property had two dams; both dam 1 and 2 were within the catchment referred to in the notices. The proposition by the defence was that water might at any stage be extracted from the lower dam and moved to the upstream dam, provided the water was not used for irrigation. The Court found that it was idle to suggest if water was drawn and stored and then used, that the initial extraction was not for irrigation. The defendant was blatantly operating on a 'me-first basis ', resulting in downstream users being deprived of water, when the fair sharing of the resource was an important purpose in the Council's regime.
In sentencing, the Judge stated that the taking was deliberate but conceded that, on days other than no-take days, there may have been room for misunderstanding that, provided the defendants did not irrigate, they could store water.
However, the Judge also stated that the factor that weighed most heavily was the public interest. He was 'puzzled ' as to why the defendants did not use the deep bore on their property. There must be an element of good faith between all growers. This water is a scarce resource in times of crises. To allow one grower, particularly on a large scale, to get away with putting his interests first was an unacceptable situation. The company was in good standing financially, making a profit of $500,000 per year amongst four families. The only factor that deterred the Judge from imposing a very substantial fine was that no harm came as a result of the breach as this was discovered fairly early. The defendant company was fined $12,000 and ordered to pay costs of $1,000.
NOTE: Environment Waikato was not able to prove beyond reasonable doubt that Mr Amrat Hira Bhana was personally liable, because the garden was run by two brothers and the council did not know which was responsible. Mr Amrat Hira Bhana 's evidence was that the running of the market garden was left to his brother. There was no evidence that water was pumped from dam 2 to dam 1 under the authority of Mr Amrat Hira Bhana or with his permission or consent; and there was no evidence that Mr Amrat Hira Bhana knew or could reasonably be expected to have known that the water was being pumped from dam 2 to dam 1.
