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Appeal Court overturns RMA criminal charges in damaged wetlands case

22 Mar 2024

| Author: Sonia Pinto

Application for appeal – Resource Management Act 1991 – criminal charges – definition of wetlands – enforcement orders – miscarriage of justice – acquittal

Page v Greater Wellington Regional Council [2024] NZCA 51 per Collins, Brewer and Muir JJ.

Adrian Page and Julie Crosbie faced serious charges under the Resource Management Act 1991 (RMA) of damaging wetlands on their property in Paraparaumu. Page received a harsh sentence of three months’ imprisonment and Crosbie was fined a hefty sum exceeding $100,000. However, they maintained their innocence throughout the lengthy legal battle.

Initially, the pair represented themselves in the District Court but they lacked legal expertise and the ability to present crucial evidence to counter the claims against them. This resulted in an unfavourable verdict. They appealed to the High Court, but lost.

Page and Crosbie then went to the Court of Appeal. Their application was successful, granting them a second chance to present their case. This time, they secured legal representation, which proved pivotal. Their lawyers obtained permission from the Court of Appeal to introduce new evidence about the true ecological state of their land.

A closer look at the evidence presented against Page and Crosbie revealed a significant flaw. The initial case relied on the “Clarkson” method to identify wetlands on their property, which focused solely on the types of vegetation present, neglecting a crucial aspect of wetland ecosystems – how the animal life adapted to the wet conditions. The RMA defines wetlands holistically, encompassing both the plant and animal communities that thrive in harmony with the wet environment. The Court of Appeal recognised the inadequacy of the Clarkson method, highlighting its failure to consider the animal component, thus rendering it unfit for accurately identifying wetlands according to the RMA’s definition.

The introduction of expert analysis by Page and Crosbie’s lawyers significantly strengthened their case. With this new evidence, the Court of Appeal overturned 29 of the original 35 charges against them.

Despite the successful appeal on most charges, there were issues with sentencing because Page had already served his full prison sentence for the six remaining charges that were not challenged. The Court of Appeal acknowledged this and considered whether the original sentences now amounted to a miscarriage of justice. But while a review might lead to a reduction or even an invalidation of the sentence, it was too late for Page.

Four enforcement orders under the RMA were made, including three against Crosbie requiring the implementation of a “wetland restoration plan” and a fourth applying to both defendants prohibiting them from breaching the requirements of the Regional Plan and National Environmental Standards for freshwater within the wetlands on the property in question.

The court was not certain about which of the orders, if any, were appropriate given the appeal, and invited submissions on this point. The appellants also sought to be heard on costs, which will be heard alongside the discussion on enforcement orders in April.

 

Applicable principles: definition of “wetlands” for the purposes of the RMA –  miscarriage of justice – self-representation – expert evidence – acquittal –enforcement orders under s 339(5) of the RMA – abatement notices – statutory interpretation – “Clarkson” method unfit for purpose

 

Held: the appeals were allowed for both appellants in respect of charges, 2, 4-8, 10, 11 and 14-34. Convictions in respect of said charges were to be set aside and judgments of acquittal be entered.

The court invited submissions in respect of appropriate penalties for the defendants and the applicability of enforcement orders identified in the District Court’s sentencing notes.

 

Page v Greater Wellington Regional Council [2024] NZCA 51.

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