Having invested time and money publicising resource management prosecutions, it can be difficult for local authorities to handle defeat; Canterbury Region resisted North Canterbury farmer Jan Scott Rutherford correcting an injustice after prosecution, conviction and a fine for supposedly unauthorised earthworks on the Waiau River.
Mr Rutherford’s farm is bounded by the Waiau, a braided river running through Hurunui District. Canterbury Regional Council prosecuted for supposed breaches of the Resource Management Act when he levelled, seeded and fertilised a seventy hectare area bordering the river. Mr Rutherford said this work was above the edge of the river: a well-defined gravel bank, he claimed. Canterbury Region argued the river bed extended to an old river terrace, above the newly grassed pasture. He was prosecuted for ‘unconsented work’ in the bed of the river. The two disputed what was the river bed.
The High Court was told Mr Rutherford’s prosecution was underway at the same time as a similar prosecution against a Canterbury farmer on the Selwyn River. When this case decided a ‘river bed’ encompassed all land underwater when the river was at full flood without overtopping its banks, Mr Rutherford threw in the towel, pleading guilty, and was fined $34,000. The Selwyn case was subsequently appealed, leading to a new definition of river bed; land underwater during the usual flow of water as measured over a reasonable period of years. Mr Rutherford was vindicated. The land he bought into pasture was above the Wairau river bed.
Canterbury Region challenged his appeal against conviction. The mere fact there has been a change of law since the conviction does not, of itself, justify setting aside a conviction, it said.
Mr Rutherford’s conviction for encroaching on the Waiau River bed was quashed by Justice Dunningham. A substantial injustice would follow if the convictions remained, given Mr Rutherford argued the point from the outset and a criminal prosecution was forced on him when the District Court refused his request for an adjournment pending an appeal then underway in the Selwyn River case, an appeal which subsequently clarified the definition of a river bed for resource management purposes and determined Mr Rutherford was correct all along.
A single conviction against Mr Rutherford was upheld; allowing sediment to enter the river without resource consent whilst carrying out the disputed earthworks.
Rutherford v. Canterbury Region – High Court (24.06.21)
21.106