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Waiheke resource consent conviction upheld

6 April 2004

Waiheke resource consent conviction upheld

The Court of Appeal has upheld convictions against Waiheke developers Graeme Ross and Dallas Pendergrast in a case involving a Waiheke land development.

Judge McElrea entered the convictions against the individuals and their company, Gillies Waiheke Limited, in the District Court on 14 December 2001. The conviction was in regard to development carried out by the company in which earthworks carried out were more than three times the volume allowed in the resource consent. Some 2300m2 of earth was shifted, 1535m2 more than the 765m2 allowed for in the consent. The case against the individuals and their company was brought by the Auckland City Council.

A key issue in the case was whether there was a restriction in the resource consent for the development limiting earthworks to a certain amount. The defendants tried to invoke section 19 of the Criminal Justice Act, which provides the authority for a discharge without conviction in appropriate cases, claiming that they had acted responsibly and taken reasonable steps to ensure the legal requirements of the Resource Management Act were met. The court, however, found that the restrictions were present and ruled against the couple.

Following the Court of Appeal judgement, Pendergrasts and Gillies Waiheke Limited are liable for $12,000 – the total fine imposed against them by the District Court – together with costs in favour of the council.

Greg Reid, the council’s team leader for Hauraki Gulf Islands compliance monitoring believes that the case can be considered a clear example of the consequences incurred for breaching conditions of resource consents.
“Resource consents are given for a very good reason – as a way for council to manage the effects developers have on the environment. Significant earthworks in particular can have a number of impacts on the surrounding environment such as sediment run off, clogging of waterways and destroying of local flora and fauna,” Mr Reid says.

The court stated that, if the convictions had been dismissed, it would mean that there would be no convictions following serious environmental infringements. That, in the court’s view, would work against the concept of general deterrence and protection of the environment.


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