It is not often that a person is sentenced to prison for breaching the Resource Management Act.  It is even more infrequent that such convictions are overturned on appeal. Just such a case occurred last week.  For those accustomed to representing defendants in this prosecutor-friendly jurisdiction, this case presents a rare and satisfying win for the defendants.

In November 2021, District Court Judge Dwyer sentenced Adrian Page to three months imprisonment for 35 offences under the Resource Management Act 1991.  The charges related to earthworks undertaken by Mr Page on a small farming property in Paraparaumu.  The Council asserted that Mr Page’s work had disturbed areas of wetland.  Additional charges were laid for breaches of abatement notices and an enforcement order.  Ms Crosbie, the owner of the land, was fined $118,742.

Mr Page and Ms Crosbie appealed unsuccessfully to the High Court.  Undeterred, they made an application to the Court of Appeal for a further appeal.  In a rare move, the Court of Appeal granted their application for a second appeal.

Mr Page and Ms Crosbie had been self-represented in both the District Court and the High Court.  They had not called expert evidence to challenge the Council’s assessment of the land.  Mr Page and Ms Crosbie appointed lawyers to represent them in the Court of Appeal.  Their lawyers obtained leave from the Court of Appeal to adduce further evidence on the status of the land.

The Court of Appeal’s decision was released last week.  The Court acquitted Mr Page and Ms Crosbie of 29 of the charges.

To prove its case in relation to the natural wetland areas, the Council was required to establish, to a criminal standard, that the areas were “a permanently or intermittently wet area, shallow water and land water margin that supports a natural ecosystem of plants and animals that are adapted to wet conditions”.

In the District Court, the Council’s expert had relied on the so-called “Clarkson Method.”  This method uses vegetation to determine whether an area is a wetland.  The Court of Appeal noted that the RMA defined a wetland as a “natural ecosystem of adapted plants and animals.”  The Clarkson Method fails to consider the animals living on the land and does not accord with the test in the Act.  The Court of Appeal was satisfied that the Clarkson Method was demonstrably unfit to prove that the areas were wetlands.

The Court of Appeal also allowed the Council to admit of further evidence.  As a result, the Court had the benefit of more comprehensive expert analysis than was available to Judge Dwyer.  Despite this, the Court of Appeal found that the Council had still failed to prove that the areas were wetlands beyond reasonable doubt.  As result, it acquitted Mr Page and Ms Crosbie of 29 of the charges.

The Court of Appeal has requested submissions on the sentence that ought to have been imposed for the remaining six charges.  These charges were not challenged on appeal.  It will then assess whether the sentences actually imposed were a miscarriage of justice.  Unfortunately, this will come too late for Mr Page, who has already served his time in prison.

Comment (Matthew Atkinson)

This case demonstrates the value of persistence.  It also highlights the significant risks faced by self-represented litigants.  Both prosecutors and courts are fallible in their application of the law in this highly technical area.  Experienced and knowledgeable representation is needed to ensure a just outcome.