The hearing (Monday 7th March) took place in an Environment Court hearing room on the 8th Floor of the Court buildings in Albert Street. The room was pretty much packed. I counted seven lawyers/barristers/QCs. There were representatives there from the main parties mentioned above, plus from Watercare, Three Kings United Group, South Epsom Planning Group, and St Lukes Environmental Protection Inc.
Justice Smith was on the bench supported by Commissioner Gollop and Commissioner Howie (I think it was). There was some initial discussion about Memoranda that had been flying around. And some discussion about the timetable. It appears that Winstone Aggregate's evidence and application may take till Friday, then Auckland Council's evidence will be heard (they have 4 witnesses), then Watercare and the other submitters.
I will skip the detail of this, and quote some interesting material from the opening legal submissions which were made on behalf of Winstone Aggregates. Their legal advice is coming from Russell McVeagh. These submissions took up over forty pages. Here are some interesting extracts:
1.8 Winstone has continually been assured by its independent experts that its proposal will result in no adverse effects on the environment, but in an effort to assuage community concerns it has volunteered yet more consent conditions which go far beyond the usual expectations for an application of this kind...
1.9 This is in stark contrast to the behaviour of Envirowaste Services Ltd (ESL). As both the the primary opponent of Winstone's Proposal and its trade competitor, ESL has from the outset sought to frustrate the consenting process for Winstone. ESL has worked actively to gather opposition to Winstone's Proposal, and has generally behaved in an anti-competitive way, despite Parliament's disapproval of such behaviour.
....
1.11 Winstone is and always has been willing to accept appropriate conditions that will avoid, remedy or mitigate adverse effects. What Winstone does not accept is ESL's argument that Winstone's operation should be restricted by conditions so as to ensure that it has virtually no effects.... the approach seems to be a repeated lobbing of mud in the hope that some sticks.
1.12 Leaving ESL aside, Winstone accepts that there are several community groups who have a long history of being involved in various RMA processes relating to Three Kings Quarry.... The only other party, Water Services Ltd, has recently confirmed that it is happy with the consent conditions as proposed. Unlike ESL, Watercare was prepared to engage on the substance of the issue, and its independent advisor undertook his own analysis, and agreement was able to be reached between the experts as to what conditions were appropriate to ensure that, if ever required, the Three Kings aquifer would be available for the supply of potable water. (There is something decidedly farcical about a trade competitor, ESL, alleging adverse effects on future groundwater supplies, while at the same time the regional water provider, Watercare, is confirming it is generally comfortable with the proposed consent conditions.)
....
1.28 Reduced to its most fundamental issue, this case is about what level of contamination should be permitted in the proposed fill for the Three Kings Quarry. Contrary to allegations made by some parties, what is proposed is not a landfill, and the consent conditions clearly set out the type of material that can be deposited at the Three Kings Quarry....
....
3.2 ...legal issues to be commented on are:.... should management plans required by consent conditions be subject to "approval" by the consent authority, or is the consent authority's role limited to one of "certification"? (This is the sole issue remaining in dispute between Winstone and Auckland Council).
So. You get the drift. What I did learn from the submissions was this: No water discharge consent has been issued by the old regulator - the ARC. It turns out that the Winstone application to discharge contaminants to water - the one referred to in the posting: Steps Toward Permit to Pollute (1) and which was notified in 8th April 2010 - was not dealt with by the ARC as regulator.
Instead it was referred to the Environment Court for hearing and decision.
It appears that Sections 87C to 87I of the RMA allow applicants to make a request to the council for resource consent applications to be decided by the Environment Court instead of by the council. It appears that the ARC may have objected to this, and the applicant then appealed that objection to the Environment Court, which decided that the appeals to the original consents, and the new application to discharge contaminants to water, would all be heard together by the Environment Court.
It means that the issues to do with water, aquifers, groundwater and so on, as they relate to Winstone Aggregate's application for consent to discharge contaminants to groundwater (and so to aquifers) will be properly heard for the first time by this Environment Court.
So. That was interesting and important to understand.
Along the way, while these opening submissions were being read out by Winstone's counsel, there were some interesting discussions generally triggered by questions from the Bench. I don't want to upset the Court, so I won't attribute any of these remarks, but it is interesting to record some of the discussion points that arose.
"What are the effects? Groundwater effects - possible contamination. Including potential effects? Are they low risk, high impact? What does "minor" mean - if we are talking about effects. Is that a good test...?"
"There is an issue that Winstone Aggregates is resisting Envirowaste's ability to cross examine Watercare's experts.... EW is barred by statute in respect to the matter of trade competition...."
"Is there an option of just leaving the quarry empty. Let it fill up with water....?"
"What type of material could be disposed of. Concrete is mentioned. But it contains reinforcing steel... what about that? If you can slip contaminated material into a load of cleanfill - that would be much cheaper than paying $200/tonne at a landfill - but you only check 1 truck in every 150. You might intend a result, but it needs to be a reality...."
"Keen on the contract for the Waterview project. They are reliable. Reliable cleanfill. But what about others....?"
Looks like an interesting and very important hearing.
1 comment:
Thanks for your very full reporting on this important matter Joel.
It will be interesting to hear some more as the case proceeds.
You have reminded me that when we lived nearby I used to use the remaining King as an exercise area for our spaniels and on one occasion spotted a large stone fern pounder, which wold indicate that that one at least was a pa. The pounder (Onewa) I gave to the North Shore Marae a year or so ago.
John
Post a Comment