PAGE v GREATER WELLINGTON REGIONAL COUNCIL [2023] NZCA 20

PAGE v GREATER WELLINGTON REGIONAL COUNCIL [2023] NZCA 20 [15 February 2023]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA221/2022[2023] NZCA 20BETWEEN ADRIAN NEIL PAGEFirst ApplicantAND JULIE MAREE CROSBIESecond ApplicantAND GREATER WELLINGTON REGIONALCOUNCILRespondentCourt: Collins, Muir and Cull JJCounsel: S J Iorns for ApplicantsR J B Fowler KC and A W M Britton for RespondentJudgment:(On the papers)15 February 2023 at 9.30 amJUDGMENT OF THE COURTA The application to adduce fresh evidence is granted.B The application for leave to bring a second appeal is granted.____________________________________________________________________REASONS OF THE COURT(Given by Cull J)[1] Mr Page and Ms Crosbie seek leave to bring a second appeal against a decisionof the District Court, in which Judge Dwyer found the applicants guilty of 35 offencesunder the Resource Management Act 1991 (RMA).1 Mr Page was sentenced to1 Greater Wellington Regional Council v Page [2021] NZDC 16019 (Verdicts judgment).three months' imprisonment and Ms Crosbie was fined $118,742.2 An enforcementorder for the remediation of property was also made.3[2] The applicants represented themselves both before Judge Dwyer in theDistrict Court and before Gendall J on appeal in the High Court.4 They seek leave toappeal on the grounds that there has been a miscarriage of justice on the issue ofwhether the presence of natural wetlands on Ms Crosbie's property (the Property) wasproved beyond reasonable doubt.[3] The applicants did not adduce expert evidence regarding the areas of naturalwetland on the Property and now seek leave to adduce expert evidence. In support ofthe application to adduce further evidence, the applicants have filed two affidavits ofa senior ecologist, Dr Vaughan Keesing and a senior hydrologist, Dr Jack McConchie.They both challenge the evidence of the Regional Council's expert Mr Spearpointdisputing that his evidence proves there are wetlands at the Property, which formedthe basis of the 35 charges against each of them.Background[4] The background facts were helpfully and conveniently summarised byGendall J in his first appeal judgment. We set them out as the relevant background tothis application:[13] The Property was purchased by Ms Crosbie in May 2019 with theintention of it being restored back into farmland and developed as a beeffarming unit with her partner, Mr Page. Subsequently, livestock was broughtonto the Property and extensive development work was undertaken. It seemsit was common ground between the parties that Mr Page undertook variousworks on the Property to advance the farming activity. These works includedthe construction of access tracks and stream crossings, wetland reclamationand the installation of water takes. The Council had alleged, and the DistrictCourt accepted, that the Property contained six wetlands as marked on a mapof the Property prepared for the Council.[14] The title to the Property is subject to a registered Easement Instrument7943259.7. This provides for a right in gross to drain sewage, other wastematerial and fluids over parts of the Property (the disposal field) for the benefitof an adjacent rural-residential subdivision completed by Nikau Lakes2 Greater Wellington Regional Council v Page [2021] NZDC 23312 (Sentence judgment) at [34].3 At [52][54].4 Page v Greater Wellington Regional Council [2022] NZHC 762 (Appeal judgment).Biosystem Limited. A resource consent permitted Nikau Lakes BiosystemLimited to discharge up to 60,000 litres of treated human effluent anddomestic wastewater onto the disposal field subject to certain conditions.Those conditions included a requirement that livestock were not permitted tograze in the disposal field.[15] It appears also that part of the Property is traversed by a natural gaspipeline which is protected by the rights contained in Pipeline Certificate90461 and an easement in gross, in favour of Natural Gas Corporation ofNew Zealand Ltd. That easement has been in place since 1987 and gaspipeline structures have been established on the Property for many years.[16] Thirty-four of the offences faced by the Appellants were alleged to havetaken place on the Property over a period commencing on 30 May 2019 andending on 5 August 2020. The 35th charge related to an alleged contraventionof an interim enforcement order obtained by the Council from theEnvironment Court on 22 December 2020 (the Interim Enforcement Order).The breach allegedly took place between 23 December 2020 and 2 March2021.[17] From the evidence before that Court, Judge Dwyer in the District Courtaccepted that, the offences arose out of observations made by the Councilofficers in the course of a number of inspections of the Property to assesscompliance with RMA and/or possible contraventions of rules in the Council'sproposed Natural Resources Plan (the PNRP). Those inspections took placebetween October 2019 and March 2021.The District Court's decisionVerdict and reasons judgments[5] As we have noted, the Council brought 35 charges against each of theapplicants. These were grouped by Judge Dwyer into three categories:5(a) 25 "operational charges" against the RMA, which related to allowingcattle access to wetlands, disturbing wetlands, undertaking earthworksin water bodies, depositing substances into water or where they couldenter it, taking water, and depositing soil onto a riverbed.(b) Nine "abatement notice charges" which reflected the fact severaloperational offences were also breaches of abatement notices which hadbeen served on the Appellants on 24 January 2020.(c) One "enforcement order charge" which related to the failure of theAppellants to exclude livestock from the disposal field as required bythe Interim Enforcement Order of the Environment Court.[6] The Council led evidence from four witnesses. Of relevance to thisapplication, the Council's expert, Mr Spearpoint, an expert in terrestrial ecology and5 Appeal judgment, above n 4, at [18].wetland delineation produced a natural wetland investigation report, describing thedelineation of the wetlands on the applicants' property, the impact of works undertakenon it and possible steps to remediation.[7] In his verdicts judgment, Judge Dwyer acknowledged the expertise ofMr Spearpoint and "clearly preferred" his evidence in all respects, including thehistorical use of the property and Mr Spearpoint's conclusion that all six wetlandsidentified by the Council were "natural" wetlands for the purposes of the Council'sProposed Natural Resources Plan and, met the definition of "wetland" under s 2 of theResource Management Act 1991.Sentencing judgment[8] In his sentencing judgment, Judge Dwyer emphasised the ecologicalimportance of wetlands generally and specifically noted that in highlighting theimportance of wetlands generally, he accepted that only a small area of wetlands wasactually damaged. Against that, he considered the aggravating feature of theoffending, particularly in relation to Mr Page, was the deliberate, prolonged anddefiant nature of the offending and the number of charges involved.[9] Ms Crosbie was fined a total of $118,742, together with solicitor and Courtcosts. On each of the abatement notice charges, Mr Page was sentenced tothree months' imprisonment and, three months' imprisonment on the enforcementorder offence, to be served concurrently.Appeal to the High Court[10] Although there were three grounds of appeal, only one is relevant to theseapplications. That ground asserts that the trial Judge erred by not accepting that allthe wetlands on the property (excluding wetland 3C) were impacted or created byhuman activity and were excluded from the definition of "natural wetlands" in theproposed Natural Resources Plan (PNRP).[11] The High Court rejected the applicants' appeal. Gendall J agreed with theDistrict Court that a natural wetland may be created by artificial works that areneglected or cannot be shown to be for one of the defined and excluded purposes inthe PNRP and found that the applicants' focus on the genesis or lineage of varioustypes of wetland was entirely misplaced and "missed the point" of how wetlands aredelineated and defined.6[12] The High Court accepted the factual findings of "the specialist environmentdivision of the Court" and noted the absence of compelling expert evidence on appealthat identified an error.7 In doing so, Gendall J commented on the evidence ofMr Spearpoint. He said this:[57] At the trial before Judge Dwyer, the primary evidence for the Councilon this issue came from Mr Spearpoint. He is acknowledged as an expert inwetland ecology with considerable experience conducting over 70 stage onewetland delineation assessments in the Wellington Region. Mr Spearpointproduced a detailed report and provided extensive evidence on this matter. Inaddition, during the trial, he was cross-examined at length on his analysis,during the trial, by Mr Page.[13] Gendall J also recorded Judge Dwyer's finding that "Mr Page has no expertisethat was made known to the Court in the assessment of wetlands."8 In rejecting thisground on appeal, Gendall J said:9[The trial Judge's] factual findings as to the presence of wetlands on theProperty and their extent is generally in my view not to be questioned here inany real way, in the absence of compelling evidence, and particularly expertevidence which suggests an error has occurred. No such compelling evidencehas been provided on this appeal, nor as I find it has Mr Page been able toqualify himself as an expert here.10[14] Because the applicants were unable to show error in the trial Judge's "extensiveand detailed verdicts judgment," he was satisfied no error or "real risk" of the outcomeof the trial occurred or that the trial was in any way unfair. Nor was he persuaded thatany miscarriage of justice had occurred.6 Appeal judgment, above n 4. at [99].7 At [58].8 Verdicts judgment, above n 1. at [78].9 Appeal judgment, above n 4, at [58].10 At [58].Leave principles[15] The application for leave to bring a second appeal is governed by s 253 of theCriminal Procedure Act 2011. Leave may be granted where the proposed appealinvolves a matter of general or public importance, or where a miscarriage of justicemay have occurred or will occur if the appeal is not heard.11[16] As this Court confirmed in McAllister v R, the threshold for a second appeal ishigh.12 Leave will not generally be granted where the application raises issues callingfor a factual assessment specific to the circumstances of the case in question.13Although the miscarriage test will extend to arguable errors by the Court below, notevery such error will give rise to a miscarriage of justice.14Proposed grounds of appeal[17] There are two applications from the applicants. First, the applicants seek leaveto adduce fresh evidence from two experts on the grounds that its exclusion risks amiscarriage of justice.[18] Second, leave for a second appeal is sought on the grounds that the trial Judgeaccepted Mr Spearpoint's evidence as establishing beyond reasonable doubt that therewere natural wetlands as defined in the PNRP on the applicants' Property and amiscarriage of justice has occurred as a result.Proposed further expert evidence[19] The applicants propose calling the evidence of Dr Keesing, a senior ecologist,and Dr Jack McConchie, a hydrologist, to contradict the evidence of Mr Spearpointon his identification of the natural wetlands on the Property and his interpretation ofthe exclusions to the PNRP "wetland" definition. Both "tend to show" that theevidence was insufficient to establish to a criminal standard that natural wetlands werepresent on the site.11 Criminal Procedure Act 2011, s 253(3).12 McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764.13 At [36].14 At [38].[20] The applicants submit that the lack of credible challenge at trial failed toaddress Mr Spearpoint's failure to understand the "damp gully heads" exclusion, whenthose exclusions apply to most of the site, as their proposed evidence shows. Also,there was no cross-examination of Mr Spearpoint's application of the Clarksonmethodology, which the applicants say was an error.DiscussionA miscarriage of justice?[21] The submissions for the applicants focus on two points relating to miscarriageof justice. The first is that judicial notice should be taken of the decision inGreater Wellington Regional Council v Adams, here the evidence of Drs Keesing andMcConchie was preferred over GWRC's evidence, including Mr Spearpoint'sassessment of alleged natural wetlands. 15[22] The respondent filed extensive submissions opposing leave to adduce furtherevidence as it is not fresh and does not affect the correctness of the verdicts judgment.The comparison sought to be drawn to the Adams' decision, the Council says, ismisconceived. While we accept that the evidence is not fresh, (given that it could havebeen available at trial), we consider the proposed evidence may render the convictionsunsafe, either in total or in part, such that its exclusion risks a miscarriage of justice.16We are reinforced in this view by the reliance placed by the trial Judge and theHigh Court Judge on Mr Spearpoint's expertise in wetland ecology and the lack of any"compelling evidence" to suggest he was in error.[23] Notwithstanding the respondent's extensive submissions, the same trial Judgein Adams accepted the challenges raised by Drs Keesing and McConchie on theexclusions to the definitions of natural wetland and the hydrology assessmentsundertaken by the Regional Council. Although the area under consideration in Adamsis different to the location and topography of the applicants' property, as the respondentsubmits, we cannot overlook that it was the absence of any expert ecology and15 Greater Wellington Regional Council v Adams [2022] NZEnvC 25.16 Banks v R [2004] NZCA 575; and Fairburn v R [2010] NZSC 159, [2011] 2 NZLR 63 at [25].hydrology evidence that led the trial and appeal Judges to conclude there was no errorin the Council's expert evidence.[24] The second point raised by the applicants was the untimeliness of disclosure,impeding the applicants' ability to adequately defend the charges in the time availablebefore trial. The disclosure of three substantial packages of relevant information,including Dr Spearpoint's evidence, was delivered to the applicants by way of USBdrives on 26 February and 19 March 2021, approximately two to three months beforethe trial on 24 May.[25] Mr Page explained his lack of IT skills to the Court on 7 May, when herequested hard copies of disclosure and these were provided on 8 May and 14 May.There were 2,138 pages together with videos in disclosure package one, 454 pages indisclosure package two, and a further 240 pages and further videos in disclosurepackage three, the latter of which was delivered on 14 May, ten days before thehearing.[26] We acknowledge the fact, as the High Court observed, that the applicants wererepeatedly advised before, during and after the trial, by Counsel for the respondent andthe District Court, to obtain legal representation. However, the lateness of substantialdisclosure so close to the trial date is concerning, particularly when the applicants wereself-represented and had technological difficulties with soft data. This is an additionalfactor favouring the applicants in weighing the likely risk of a miscarriage of justice.Conclusion[27] We consider that the proposed fresh expert evidence highlights that theoutcome of the trial was affected by the absence of any expert challenge to therespondents' principal ecology witness. The absence of such evidence together withthe late disclosure raises a real risk that the applicants' convictions may be unsafe anda miscarriage of justice may have occurred.17 For those reasons, we are satisfied thatthe applications for leave to adduce further evidence and leave to bring a second appealshould be granted.17 Criminal Procedure Act, s 232(4).Result[28] The application to adduce fresh evidence is granted.[29] The application for leave to bring a second appeal is granted.Solicitors:Upper Hutt Law Ltd, Upper Hutt for ApplicantsLuke Cunningham Clere, Wellington for Respondent