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Canterbury Regional Council v Dewhirst Land Co Ltd and Anor [2019] NZCA 486

08 October 2019

Decision

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Summary

Resource Management – offences, non-complying activity, regional councils. Criminal Practice and Procedure – application for leave to appeal, question of law on appeal.
Application for leave to bring a second appeal granted. Appeal dismissed.
The respondents pleaded guilty to several charges under the Resource Management Act 1991 in relation to activities that they carried out on land adjacent to the Selwyn River. The respondents, prior to sentencing, contested the extent to which the activities took place on the bed of the river. The High Court held that, for the purposes of determining the “bed” of a river for the purposes of s 2(a)(ii) of the Resource Management Act, the “bank to bank” test outlined in Kingdon v The Hutt River Board should be applied, and the actual banks of a river must be established first. Further, the words “usual or non-flood” should be implied into the s 2(a)(ii) definition of “bed” before the words “fullest flow”. The appellant, Canterbury Regional Council, sought leave to appeal on three questions of law.
Whether leave to appeal should be granted? Held: leave should be granted, the issues raised are of general and public importance.
Whether the High Court erred in its assessment of the correct test for determining the extent of the riverbed in applying the definition of “bed” in s 2 of the Resource Management Act? Held: the High Court did not err, the Judge was correct to apply Kingdon; the determination of a bed of a river depends on the position of the river’s banks and also on the water coverage measure as determined by the river’s fullest flow which occurs within those banks.
Whether the High Court erred in adding the phrase “usual or non-flood” into the definition of “bed” in s 2 of the Resource Management Act by implication? Held: the High Court did err, there is no need to imply the words “usual or non-flood” into the definition, the contextual application of the definition to the facts of a case will involve an assessment of what is usual, ordinary or non- flood.
Whether the High Court erred in concluding that the assessment of various flow rates or return periods was an irrelevant consideration in determining the extent of the riverbed? Held: the High Court did not err.