BEFORE THE ENVIRONMENT COURT

I MUA I TE KOOTI TAIAO AOTEAROA

IN THE MATTER OF

BETWEEN

AND

AND

Hearing: 24 February 2020

Decision No. [2020] NZEnvC O \ k:, an application pursuant to s320 of the Resource Management Act 1991

TUDOR HENRY CARADOC-DAVIES HAMISH FORRESTER GRAEME DESMOND GRANGER JOHN EDGAR SA YCE PARKER

(ENV-2017-CHC-000032,33)

Applicants

STEVEN ROBERT CLEARWATER

Respondent

DUNEDIN CITY COUNCIL

Section 27 4 Party

Court: Principal Environment Judge LJ Newhook sitting alone pursuant to s279 RMA

Appearances: The second, third and fourth named Initiators for themselves P J Page and D Mclaughlan for the Respondent M R Garbett for the s274 party

Date of Oral decision: 25 February

Date of Issue of written record: 28 February 2020

RECORD OF ORAL DECISION OF PRINCIPAL ENVIRONMENT JUDGE L J NEWHOOK

Introduction

[1] The Clearwater parties applied via a reporting memorandum of counsel on

2

in the following terms: The Court orders Steven Robert Clearwater and others,

including Steve Clearwater Contracting Limited to carry out no excavation or blasting

south of the black line labelled 45 m contour (M Moore plan October 2006) on the

attached plan, entitled exhibit RL 1 annexed to the affidavit of R J Lusher sworn on

9 October 2018 until further order of the Court.

[2] The reporting memorandum indicated that the respondents were seeking a

temporary suspension of that order in order to commence some consented

earthworks, and that a temporary suspension would facilitate works to proceed over

the current summer period. The applicants, neighbours of the respondents' quarry at

Cape Saunders Road Otago Peninsula had, at that time, amongt other things, sought

enforcement orders against quarry activities alleged to be beyond the limits set out in

a 2006 Resource Consent from the Dunedin City Council.

[3] In the Court's first decision, Granger & Ors v Clearwater & Ors, I had made

certain orders by consent and timetabled others for preparation for hearing.1 In the

next decision, Granger & Ors v Clearwater & Ors, I decided a dispute about the spatial

confines of quarrying set in the 2006 Resource Consent, resolving disputes among

the parties about that. 2

[4] I held that conditions 1 and 3 in the consent when read together strictly, (but

here in summary), prevented excavation, extraction or winning of materials above a

45 m contour limit on Gearys Hill , and that the broad introductory condition 1 could

not be used to suggest such activities could proceed higher up the hill, or otherwise

condition 3 would be otiose.

[5] In my third decision, Granger & Ors v Clearwater & Ors, I issued a

determination largely by consent (after resolving some minor wording disputes) as

follows:3

Pursuant to s 314(1)(a)(i) RMA, the Court orders the Clearwater parties to carry out no excavation or blasting south of the black line labelled 45 m contour (M Moore plan October 2006) on the attached plan entitled exhibit RL 1 annexed to the affidavit of R J Lusher sworn on 9 October 2018, until further order of the Court.

3

[6] The Clearwaters then indicated that they would apply to the

Dunedin City Council for a new resource consent allowing some activity above the

45m line and I reserved leave for any party to apply further concerning the

Enforcement Orders I had just made.

[7] The present application has been made by the Clearwaters' pursuant to that

leave. The relief sought read:

(a) The order restricting excavation or blasting south of the black line

labelled 45 m contour (M Moore, plan October 2006) on the plan

entitled exhibit RL 1 annexed to the affidavit of R J Lusher sworn on

9 October 2018 is temporarily suspended to allow LUC-2018-155/A to

be exercised over the 2019/2020 summer period.

(b) After a period of six months after the date of suspension of the order,

or completion of the works in accordance with LUC-2019-155/A,

whichever is earlier, the Consent Order shall be reinstated.

[8] The new 2019 application for consent to Dunedin City Council was resolved

and granted on a non-notified basis by an independent hearing commissioner. The

neighbours were aggrieved about non-notification. They were also of the view that in

his substantive decision the hearing commissioner had made some serious errors of

law, including as to the nature and definition of the activity applied for and consented.

I comment further about their concerns shortly.

[9] The Court having questioned the neighbours' advised intention to challenge

the validity of the consent and the non-notification process through these

proceedings, they filed an application for declaration. It is not necessary to comment

further about that here, because after discussion about it in open Court they accepted

that their application had not been set down for hearing this week by clear direction

of myself.

[1 O] They then sought to proceed to argue in great detail for the strengthening of

various aspects of last year's enforcement orders, but I rule that those too had not

4

[11] As an aside, I advised them to think carefully about what they what they have

expressly applied for (or might yet apply for) and to take legal advice about the extent

of this Court's jurisdiction (or lack of}, concerning non-notification and any alleged

invalidity in the hearing commissioner's decision, and proceed appropriately.

[12) In the meantime, I note the submission of Mr Garbett on behalf of Dunedin City

Council. Mr Garbett submitted that the legal principle identified here comes from a

decision of the High Court, Barker v Queenstown Lakes District Counci/4.

[13) In paragraph 55 of Barker the High Court quoted from a decision of Somers J

in the Court of Appeal, Hill v Wellington Transport Licensing Authority where a

number of things were said about the necessity to proceed with such matters in a

Court of competent jurisdiction, and until declared invalid by a Court of competent

jurisdiction, they are to be treated as valid. He also observed that the result will

depend on the gravity of the error in the context and circumstances of the case. This

too emphasises that a decision by a Court of competent jurisdiction is necessary to

establish validity. I will comment some more about this in a moment.

[14) Counsel for the Clearwaters', in answering a question from the bench, pointed

to a statutory bar created, they said, bys 319(2)(a)(ii) RMA. They should also have

mentioned the qualification to that bar in sub-subsection (b). I set out both:

(2) Except as provided in subsection (3), the Environment Court must not [emphasis mine] make an enforcement order under s 314(1)(a)(ii), (b)(ii), (c), (d)(iv), or (da) against a person if -

(a) that person is acting in accordance with -

(i) a rule in a plan; or

(ii) a resource consent; or

(iii) a designation; and

(b) the adverse effects in respect of which the order is sought were expressly recognised by the person who ... granted the resource consent ... at the time of granting.

[15) The neighbours variously argued that their application for an enforcement

order was under s 314(1 )(a)(i) or (ii). While the orders sought and made in 2018 were

clearly made under subsection (1 )(a)(i}, their current complaints have the character

of sub (1 )(a)(ii) about them. I quote from that provision:

4 CIV-2005-425-453 5 [1984] 2 NZLR 314 at 323-324

5

Is or is likely to be noxious, dangerous, offensive, or objectionable to such an extent that it has or is likely to have an adverse effect on the environment.

[16] If so, the limitation ins 314(2)(a) and (b) comes into play.

[17] Without entering the territory where the neighbours may be applying ( or may

yet apply) to tighten the 2018 orders concerning various aspects of the Clearwaters'

overall operation, the issue currently before the Court (i.e. the spatial extent of the

quarry) falls for consideration under s 319(2)(a) and (b).

[18] I have examined the reasoning of the Hearing Commissioner in his decision

and noted the geotechnical and landscape reports provided by the Clearwaters' and

those offered by the Council's relevantly qualified officers.

[19] Section 319(2)(b) would likely act as a bar to me questioning the quality or

accuracy of the Hearing Commissioner's findings. The only thing that arises here is

the question of whether he expressly recognised the adverse effects in respect of

which an enforcement order may now be sought. If he clearly did so concerning the

issue of spatial extent, the statutory bar would operate in those circumstances.

[20] I can understand, even sympathise, with the neighbours' anguish about not

being able to challenge the non-notification decisions and alleged errors or law before

the Environment Court, being left as the previously referred to High Court and Court

of Appeal decisions have held, to have to seek judicial review. That is a matter of

Government legislative policy upon which I cannot comment, but may be on the radar

of the current RMA review panel chaired by Hon A P Randerson QC.

[21] I am left to work with the resource consent as issued by the Independent

Hearing Commissioner as is, as amended pursuant to an objection under s 357 RMA.

[22] Things have in fact become somewhat complicated by the Clearwaters'

having lodged and successfully sustained an objection under that provision to certain

of the conditions of consent, modifying the conditions to what were conceded by

counsel for them and for the Council to appear on their face to govern "end of quarry

life" situations.

6

Prior to undertaking the fill work, a geotechnical specialist shall provide the methodology for

placement of fill, and eertify that the proposed fill slopes will be stable and safe long term.

[24] New condition (4A) was inserted as follows:

4A. A Quarry Closure Plan must be prepared by Quarry Management in accordance with

industry best practice (e.g. Worksafe NZ Good Practice Guidelines: Health and Safety

at Opencast Mines, Alluvial Mines and Quarries, Nov 2015 and be submitted to the

Council at rcmonitoring@dcc.govt.nz for certification upon the soonest of the following

events occurring:

1. Excavation within the quarry ceases for more than 12 months: or

2. The passing of the date being 12 months prior to the expiry of RMA 2006-1124

(or any extension or replacement thereof)

The Quarry Closure Plan is to detail the works, and the timing of the works, needed to

ensure that the following objective is met: that all slopes (both within and outside the

quarry area) that have been affected by the quarrying and remediation works are

stable and will continue to be so over the long-term.

[25] For present purposes it sets two events upon which something called a

"Quarry Closure Plan" has to be created, and there is some detail about what is to be

in that plan.

[26] Under the heading "Conditions to be met at commencement of or during

siteworks or construction," is condition (5) which read previously:

No material taken from the benching work shall be removed from the immediate site and shall

only be used for site remediation work.

The word "immediate" now being struck out; also the phrase after the comma, starting

"and shall only."

[27] Condition (6) was struck out; likewise condition (7), as follows:

6. Slopes may not be out steeper than 1 :1 (45°) without speeifie engineering design and eonstruetion.

7. Slopes may not be filled steeper than 2h: 1 v (27°) without speeifie engineering design and eonstruetion whieh eertifies the ongoing safety of the property.

A new condition (7 A) was added which read:

7

Site works for the purpose of stabilising the site are to be under1aken in accordance with the

approved quarry closure plan of condition {4A} above.

[29] The clues to them being "end of life" are found in the name

"Quarry Closure Plan" and the descriptions in the new condition (4A) of the events

that can trigger them. This might have the potential to impact on the Court's exercise

of its discretion to temporarily uplift the spatial control in the 2018 Enforcement Order

because structural safety was clearly a relevant consideration for the Independent

Hearing Commissioner before the s357 objection was allowed by a

Dunedin City Council senior planner under delegation.

[30] The Clearwaters' and Dunedin City Council were forced to fall back in the

hearing before me on the ubiquitous condition 1. In this consent, condition 1 reads:

The proposed activity must be undertaken in general accordance with the approved plans attached to the certificate as appendix 1, and the information provided with the resource consent application received by the Council on 23 July 2018, except where modified by the following conditions.

[31] Recognising the Court's concerns that the temporary order as sought on

29 November 2019 was too vague, the Clearwaters' counsel proffered a more

detailed draft during the hearing and it read as follows:

(1) ... require remediation works ... as shown on the approved plans appended to LUC 2019-

155/A being:

(a) Figure 1 proposed quarry extension reinstatement plan dated 9 October 2018 and;

(b) Figure 2 proposed quarry extension reinstatement cross-section order 1 dated 9

October 2018,

(2) The remediation works shall be completed within six months of the date of this order.

(3) In doing so the respondents shall comply with conditions, 1, 2, 3, 4, 5, 8, 9 and 10 of LUC

2019 155/A.

[32] During counsel's reply I am asked whether condition 1 would import

geo-technical advice obtained as part of the application. I was initially told that the

firm Geosolve, the Clearwater's consultants, and Stantec engaged by the

8

point was covered in a Geosolve report to the Clearwaters' to be found at pages 49

to 51 of the application materials as included in the bundle of documents for the

present hearing.

[33] I have looked carefully at this document and perceive more problems. First,

it is dated 13 December 2018, so it is clearly not information provided with the

resource consent application received by the council on 23 July 2018, which are the

terms of condition 1.

[34] Secondly, I am more troubled after reading the paragraphs relied on it and

I quote from it:

We recommend that the conditions of consent should be reviewed to determine the allowable distance from the crest that slope reprofiling can be carried out and whether slight encroachment beyond defined boundaries would be acceptable in this case if required.

When this has been established then selective removal of the rock mass can be carried out to achieve a safer profile. This should be carried out in accordance with industry standards and if further assistance is required then specific geo-technical supervision of the additional cut should be arranged.

[Emphasis is mine; 25 February 2020]

[35] It seems clear that the report recommends reviewing the conditions to tighten,

not liberalise them as Clearwater succeeded in doing with theirs 357 objection.

[36] Thirdly, the report is expressed to be prepared for the benefit of

Steve Clearwater Contracting Limited with respect to the particular brief given and

may not be relied on in other context for any other purpose without [Geosolve's] prior

review and agreement.

[37] The Court is not told what the brief was but infers that it was for relaxation of

the conditions of consent to an end of quarry life situation, and not for remediation of

conditions in a working quarry.

[38] I also note that the introductory paragraphs to the report point to rock

conditions that may be quite serious and I quote:

Rock mass is likely to fail in the short to medium term and the face is likely to present a potential safety risk to any operations carried out below the face.

9

[39] I take no account for present purposes of the Clearwaters' concession that

past quarrying took the quarry face illegally beyond the 45 m contour originally set.

[40] Finally, in relation to this report, I am not told the qualifications and experience

of the author of the 13 December 2018 report, Mr Mark Walrond, who simply

describes himself under his signature as a senior engineering geologist.

[41] The key point however is that the precise terms of condition 1 that are being

relied upon the Clearwaters' and the Council do not draw this material in, even were

it to provide support for exercising the discretion in the Clearwaters' favour. I do not

feel able to exercise the requested discretion to grant the temporary uplifting of the

Enforcement Order applied for, and refuse to do so.

[42] I so hold, despite the offer of Clearwaters' counsel, late in his reply, to have

the Court include a condition requiring input from a geotechnical specialist. The

present proceeding is not an appeal from council's decision, it is a request to relax an

Enforcement Order based on the content of a resource consent approval in terms that

cannot be appealed from .

[43] If that leaves an unsafe condition in the existing rock faces in a working quarry

that is a matter for other authorities. The Court has no option but to refuse consent

at this stage.

[44] If matters are to proceed in the direction sought. a fresh application for

temporary uplifting of the Enforcement Order in spatial terms, or some such, would

need to be made and on a more reliable basis than has occurred here on the part of

Clearwaters ' and the Council.

[45] It seems unfortunate that the whole approach to the application for temporary

uplifting of the Enforcement Order has been rushed.

[46] I reserve the issue of costs but observe that the outcome is not greatly driven

by the neighbours' focus on alleged illegality of consenting and their wish to see

alternative approaches to remediation of the quarry, but on account of the Court's

10

[47] I finally reserve the right to make minor edits in the written decision recording

this oral judgment, but not so as to the alter the substantive essence of it.

L J Newhook Principal Environment Judge