Page v Greater Wellington Regional Council - [2024] NZCA 51
Date of Judgment
11 March 2024
Decision
Page v Greater Wellington Regional Council (PDF 376 KB)
Summary
Criminal law - Resource Management Act 1991 - definition of wetland - definition of natural wetland - definition of significant natural wetland - conviction appeal
Appeals allowed (both appellants) in part. Convictions in respect of charges 2, 4-8, 10, 11, and 14-34 are set aside and judgments of acquittal entered.
Appeals dismissed (both appellants) in respect of remaining charges.
Submissions sought on appropriate substitution to sentences/orders and costs.
The appellants were found guilty by Judge Dwyer in the District Court of 35 offences under the Resource Management Act 1991, relating, substantially, to activities within four areas on a property owned by one of the appellants alleged to be "wetlands". An appeal to the High Court was unsuccessful.
Whether the conviction appeal should be granted? Held: Yes, in part.
The parties agree that the charges relating to Area 4 cannot be proven beyond a reasonable doubt. The convictions on charges 4, 16, 32, and 34 are set aside and judgments of acquittal are entered.
The evidence has not established, beyond a reasonable doubt, the existence of fauna adapted to wet conditions in Areas 1, 3A, 3B, or 3C. This means that the Council has failed to establish beyond a reasonable doubt that those Areas were "wetlands", or "significant natural wetlands". Alternatively, the method used to delineate the alleged wetlands was not appropriate in the context of a criminal prosecution and the "damp gully head" exception was not disproven. The convictions on charges 6-7, 15, 17, 19-20, and 24-30 (relating to alleged natural wetlands in those areas), charges 2, 10-11, 18, and 21-23 (relating to alleged significant natural wetlands in those areas), and charge 8 (insofar as it relates to Area 1) are set aside and judgments of acquittal are entered.
In relation to one section (Plot 15) of Area 2, the evidence is not sufficient to establish the presence of animals adapted to wet conditions. In relation to the remainder of Area 2 (Plot 8), the evidence does establish the presence of animals adapted to wet conditions. However, the stock watering exception is established, meaning that Area 2 does not meet the definition of natural wetland. The convictions on charges 5, 8, 14, 31, and 3 3 are set aside and judgments of acquittal are entered.
The only remaining charges that survive the appeal are charges 1 and 9 (relating to Area 3C), charges 3, 12, and 13 (relating to disposition of soils/sediment in the bed of a river or where it could enter water), and charge 35 (relating to contravention of an Environment Court enforcement order). None of these charges depended on the establishment beyond a reasonable doubt of wetlands, natural wetlands, or significant natural wetlands.
The Court sought submissions from the parties on the appropriate sentences to impose on each appellant, in light of the outcome of the appeal, and also on costs.
Appeals allowed (both appellants) in part. Convictions in respect of charges 2, 4-8, 10, 11, and 14-34 are set aside and judgments of acquittal entered.
Appeals dismissed (both appellants) in respect of remaining charges.
Submissions sought on appropriate substitution to sentences/orders and costs.
The appellants were found guilty by Judge Dwyer in the District Court of 35 offences under the Resource Management Act 1991, relating, substantially, to activities within four areas on a property owned by one of the appellants alleged to be "wetlands". An appeal to the High Court was unsuccessful.
Whether the conviction appeal should be granted? Held: Yes, in part.
The parties agree that the charges relating to Area 4 cannot be proven beyond a reasonable doubt. The convictions on charges 4, 16, 32, and 34 are set aside and judgments of acquittal are entered.
The evidence has not established, beyond a reasonable doubt, the existence of fauna adapted to wet conditions in Areas 1, 3A, 3B, or 3C. This means that the Council has failed to establish beyond a reasonable doubt that those Areas were "wetlands", or "significant natural wetlands". Alternatively, the method used to delineate the alleged wetlands was not appropriate in the context of a criminal prosecution and the "damp gully head" exception was not disproven. The convictions on charges 6-7, 15, 17, 19-20, and 24-30 (relating to alleged natural wetlands in those areas), charges 2, 10-11, 18, and 21-23 (relating to alleged significant natural wetlands in those areas), and charge 8 (insofar as it relates to Area 1) are set aside and judgments of acquittal are entered.
In relation to one section (Plot 15) of Area 2, the evidence is not sufficient to establish the presence of animals adapted to wet conditions. In relation to the remainder of Area 2 (Plot 8), the evidence does establish the presence of animals adapted to wet conditions. However, the stock watering exception is established, meaning that Area 2 does not meet the definition of natural wetland. The convictions on charges 5, 8, 14, 31, and 3 3 are set aside and judgments of acquittal are entered.
The only remaining charges that survive the appeal are charges 1 and 9 (relating to Area 3C), charges 3, 12, and 13 (relating to disposition of soils/sediment in the bed of a river or where it could enter water), and charge 35 (relating to contravention of an Environment Court enforcement order). None of these charges depended on the establishment beyond a reasonable doubt of wetlands, natural wetlands, or significant natural wetlands.
The Court sought submissions from the parties on the appropriate sentences to impose on each appellant, in light of the outcome of the appeal, and also on costs.