BEFORE THE ENVIRONMENT COURT I MUA I TE KOOTI TAIAO 0 AOTEAROA

IN THE MATTER

AND

BETWEEN

AND

AND

AND

Decision No. [2019] NZEnvC 53

of the Resource Management Act 1991

of an application for ex parte enforcement orders under s 320 of the Act

KAIPARA DISTRICT COUNCIL

(ENV-2019-AKL-047)

Applicant

DANIEL GESHON HERTZKE

First Respondent

HEATHER JANE HERTZKE

Second Respondent

MATHIAS HELMAR HERTZKE

Third Respondent

Court: Environment Judge DA Kirkpatrick, sitting alone pursuant to ss 279(1)(d), 309(2) and 320 of the Act

Submissions: NA Spier for Kaipara DC

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Date of Issue: 2 9 ~lAf( :?fI19

DECISION OF THE ENVIRONMENT COURT ON APPLICATION FOR EX PARTE ENFORCEMENT ORDER

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A: The Court makes the following interim enforcement orders against the

respondents, Daniel Geshon Hertzke, Heather Jane Hertzke and Mathias Helmar

Hertzke (collectively referred to as the respondents) in respect of the property at

570 Pahi Road, Paparoa, being Part Lot 10 on Deposited Plan 391526 (the Site)

under sections 314(1)(a)(i), 314(1)(a)(ii), 314(b)(i), 314(1)(b)(ii), 314(1)(c),

314(1)(da) and 320 of the Resource Management Act 1991 (RMA):

(a) Pursuant to ss 314(1)(a)(i), 314(1)(a)(ii) and 320(1) of the RMA, until further

order of the Court, the respondents are prohibited from using or permitting any

toilet facilities at the Site;

(b) Pursuant to ss 314(1)(b)(i), 314(1)(b)(ii), 314(1)(c), 314(1)(da) and 320(1) of

the RMA, the respondents are required to do the following within seven days:

(i) Disconnect and secure all toilet facilities at the Site so that they

can no longer be used until such time as any onsite disposal of

domestic wastewater is certified as compliant with either a

resource consent or the relevant permitted activity standards in

Chapter 13 of the Kaipara District Plan (Operative in Part) (the

District Plan);

(ii) Provide and maintain alternative safe and sanitary portable toilet

facilities at the Site for the use of any occupants;

(iii) Install earth bunds downhill of each area to which the wastewater

treatment systems that service the main dwelling and sleep out

discharge, in order to detain any residual contaminant discharges

from those wastewater systems;

(iv) Temporarily fence off the areas to which the wastewater treatment

systems that service the main dwelling and sleep out discharge;

and

(v) Empty and de-sludge the septic tanks at the Site, with the waste

material removed and properly disposed of by an appropriate

operator.

B: The enforcement orders are made against the respondents on the following terms

and conditions:

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(a) The respondents are:

(i) Prohibited from using or permitting the use of any toilet facilities at the

Site;

(ii) Required to disconnect and secure any toilet facilities at the Site so

that they can no longer be used, to be completed within seven days.

The toilet facilities at the Site shall remain disconnected and secured

from use until such time as any onsite disposal of domestic

wastewater is certified by an appropriately qualified engineer as

compliant with either a resource consent or the permitted activity

standards in Chapter 13 of the District Plan, to the satisfaction of

Kaipara District Council (confirmed in writing);

(iii) Required to provide within seven days, and maintain thereafter, safe

and sanitary portable toilet facilities at the Site for the use of any

occupants (at least one portable toilet facility per household). Each

household must continue to be provided with these facilities unless

and until their dwelling is serviced by a domestic wastewater

treatment and disposal system that is certified as compliant in

accordance with the order above;

(iv) Required to install a soil or clay bund having minimum dimensions of

500mm width at the base and 300mm height downslope of the septic

tanks and land disposal systems servicing the main dwelling and

sleep out, including the greywater disposal area associated with the

main dwelling, to be completed within seven days. The bund shall be

designed to minimise the risk for direct runoff to neighbouring

properties;

(v) Required to securely fence off the areas to which the wastewater

treatment systems servicing the main dwelling and sleep out

(including at minimum the septic tanks, discharge areas and bunds

required by the order above), to be completed within seven days. The

fencing shall be designed to minimise the risk for human contact with

domestic wastewater contaminants; and

(vi) Required to empty and de-sludge all of the septic tanks at the Site

within seven days. Such works are to be undertaken by a professional

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operator with appropriate experience and equipment. All waste

material removed from the septic tanks is to be disposed of lawfully.

C: Consent is granted under s 315 of the RMA to Kaipara District Council in the event

that the respondents fail to comply with any order:

(a) To comply with the order on behalf of the respondents, and for this purpose,

enter upon any land or enter any structure (with a constable if the structure is

a dwellinghouse); and

(b) To sell or otherwise dispose of any structure or materials salvaged in

complying with the order; and

(c) After allowing for any moneys received under paragraph (b), if any, to recover

the costs and expenses of doing so as a debt due from the respondents jointly

and severally.

D: Kaipara District Council is directed to serve a copy of these interim enforcement

orders on the respondents, and the orders shall take effect from when they are

served.

E: Costs are reserved.

REASONS

Introduction

[1] This is an application dated 25 March 2019 made by Kaipara District Council on

an ex parte basis seeking interim enforcement orders against Daniel Geshon Hertzke

(first respondent), Heather Jane Hertzke (second respondent) and Mathias Helmar

Hertzke (third respondent) (collectively referred to as the respondents) to address

alleged contraventions of the Kaipara District Plan (Operative in part) (the District Plan),

a subdivision consent and s 15(1 )(b) of the Resource Management Act 1991 (the RMA).

[2] The subject site to which the orders sought would apply is located at 570 Pahi

Road, Paparoa, being Part Lot 10 on Deposited Plan 391526, and being all of the land

contained and described in the Computer Freehold Register with identifier 367447 (the

Site). The Site has an area of 2479m2. Of relevance to this proceeding are a main

dwelling and a sleep out, each serviced by separate septic tanks, all located on the Site.

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Orders sought

[3] Kaipara District Council applies ex parte for interim enforcement orders:

1.1 The orders sought against the respondents are in respect of the property at 570 Pahi Road, Paparoa, being Part Lot 10 on Deposited Plan 391526 (the site). A survey plan is appended at "8" to the affidavit of George Lewis filed in support, which identifies the main dwelling and sleep out buildings that are identified in these orders.

1.2 Pursuant to ss 320(1) and 314(1 )(a)(i) and 314(1 )(a)(ii) of the RMA, until further order of the Court, prohibit the respondents from using or permitting any toilet facilities at the site.

1.3 Pursuant to ss 320(1), 314(1)(b)(ii), 314(1)(c) and 314(1)(da) of the RMA, require the respondents to do the following within seven days:

a. Disconnect and secure all toilet facilities at the site so that they can no longer be used until such time as any onsite disposal of domestic wastewater is certified as compliant with either a resource consent or the relevant permitted activity standards in Chapter 13 of the Kaipara District Plan (Operative in Part) (the district plan);

b. Provide and maintain alternative safe and sanitary portable toilet facilities at the site for the use of any occupants;

c. Install earth bunds downhill of each area to which the wastewater treatment systems that service the main dwelling and sleep out discharge, in order to detain any residual contaminant discharges from those wastewater systems;

d. Temporarily fence off the areas to which the wastewater treatment systems that service the main dwelling and sleep out discharge; and

e. Empty and de-sludge the septic tanks at the site, with the waste material removed and properly disposed of by an appropriate operator.

[4] Kaipara District Council applies for the orders to be made against each of the

respondents on the following terms and conditions:

a. The respondents are:

i. Prohibited from using any toilet facilities at the site;

ii. Required to disconnect and secure any toilet facilities at the site so that they can no longer be used, to be completed within seven days. The toilet facilities at the site shall remain disconnected and secured from use until such time as any onsite disposal of domestic wastewater is certified by an appropriately qualified engineer as compliant with either a resource consent or the permitted activity standards in Chapter 13 of the district plan, to the satisfaction of Kaipara District Council (confirmed in writing);

iii. Required to provide within seven days, and maintain thereafter, safe and sanitary portable toilet facilities at the site for the use of any occupants (at least one portable toilet facility per household). Each household must continue to be provided with these facilities unless and until their dwelling is serviced by a domestic wastewater treatment and disposal system that is certified as compliant in accordance with the order above;

iv. Required to install a soil or clay bund having minimum dimensions of 500mm width at the base and 300mm height downslope of the septic tanks and land disposal systems servicing the main dwelling and sleep out, inCluding the greywater disposal area associated with the main dwelling, to be completed within seven days. The bund shall be designed to minimise the risk for direct runoff to neighbouring properties;

v. Required to securely fence off the areas to which the wastewater treatment systems servicing the main dwelling and sleep out (including at minimum the septic tanks, discharge areas and bunds required by the order above), to be completed within seven days. The fencing shall be designed to minimise the risk for human contact with domestic wastewater contaminants; and

vi. Required to empty and de-sludge all of the septic tanks at the site within seven days. Such works are to be undertaken by a professional operator with approximate experience

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and equipment. All waste material removed from the septic tanks is to be disposed of lawfully.

[5] On an anticipatory basis, the Council also seeks the Court's consent, under

s 315 of the RMA, to implement any interim enforcement order made in the event of

default by the respondents (including recouping and securing the costs of doing so in

accordance with that section).

Grounds for enforcement orders

[6] The interim enforcement orders sought under s 314(1 )(a)(i) of the RMA are sought

on the basis that if the activities described do not cease, they will continue to or are likely

to contravene:

a. Chapter 13 - Residential Zone district plan rule 13.14.6 (3) a), b) and c) for wastewater disposal, which relevantly states:

(3) Where no Council system is available, all allotments are provided, within their net site area, with:

a) 1 ,500m2 area of land per household wastewater disposal within the boundaries of the site. The area shall be clear of building sites, driveways and manoeuvring areas; and

b) The applicant must demonstrate that an on-site disposal system meeting the requirements of the Regional Water and Soil Plan for Northland can be installed; and

c) Applicants demonstrate that any effluent discharges comply with the requirements of the Regional Water and Soil Plan for Northland (or consent for discharges from the Northland Regional Council has been obtained).

b. Condition 1) d) of subdivision consent 060060 (Barry Snow Family Trust) which relevantly states:

1) d) Key design parameters for the proposed individual on-site wastewater treatment and disposal systems to serve each lot shall be provided to Council for approval. The design parameters shall be determined by and appropriately qualified and experienced engineer and shall have regard to the recommendation of the Hawthorn Geddes report, Jog No. 5726, dated 17 February 2006 (the Hawthorn Geddes report).

Key design parameters to be specified shall include:

• Treatment Plant, having regard to the likely intermittent nature of loading of the systems;

• Disposal method; and

• Disposal design loading rates.

c. Section 9(3) of the RMA, which prohibits the use of land in a manner that contravenes a district rule, unless the use is expressly allowed by a resource consent, or by ss 10 or 20A of the RMA; and

d. Section 15(1)(b) of the RMA, which provides that no person may discharge any contaminant onto or into land in circumstances which may result in that contaminant (or any other contaminant emanating as a result of natural processes from that contaminant) entering water.

The interim enforcement orders sought under s 314(1)(b)(i) of the RMA are sought

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on the basis that they are necessary in order to ensure compliance with:

a. Chapter 13 - Residential Zone of the District Plan, Rule 13.14.6 (3) a), b) and c) for wastewater disposal as described above;

b. Condition 1) d) of subdivision consent 060060 (Barry Snow Family Trust) as described above;

c. Section 9(3) of the RMA as described above; and

d. Section 15(1)(b) of the RMA as described above.

[8] The interim enforcement orders sought under s 314(1)(b)(ii) of the RMA are

sought on the basis that they are necessary in order to avoid, remedy or mitigate actual

or likely adverse effects on the environment, including:

a. Health risks arising from the discharge of inadequately treated domestic wastewater from a non-compliant wastewater disposal system;

b. Contamination to surface and/or ground water; and

c. Offensive or objectionable odours resulting from the discharge of inadequately treated domestic wastewater from a non-compliant wastewater disposal system.

[9] Orders are sought against the first and second respondents on the basis that they

are the registered proprietors of the Site and the landlord to the tenant at the Site.

[10] Orders are sought against the third respondent on the basis that he is the occupier

of the Site and is generally responsible for day-to-day management of the Site.

Evidence in support

[11] The Council's application is supported by an affidavit from George Robert Lewis,

sworn on 21 March 2019. Mr Lewis is the Team Leader Monitoring and Compliance at

the Council. His job entails the preparation and implementation of monitoring of activities

permitted under the District Plan and resource consents, including incident investigations

and formal enforcement, under the RMA.

[12] It is clear from the evidence and relevant to this proceeding that:

(a) A 'main' building on the Site is being used as a dwelling and that the

wastewater system installed in the building discharges to a septic tank.

(b) There is also a sleepout in a shipping container on the Site. That

sleepout is served by another septic tank.

(c) There is no effluent disposal field for either of the septic tanks. Foul

History

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water discharges out of the end of the pipes adjacent to the

neighbouring property.

(d) Testing of the pond on the neighbouring property directly adjacent to

where the effluent pipe is directed from the septic tank for the main

dwelling, shows high levels of E.coli present.

(e) The septic tank servicing the sleepout leaks and is located within 1 m

of the neighbour's property.1

(f) There are other compliance issues relating to each building but I have

not addressed them in this proceeding. I have focused only on the

effects of the wastewater discharges.

[13] Mr Lewis's affidavit describes the history of the Site and its ownership and details

of the Council's investigations into works at the Site. He also explains why he considers

the septic tanks do not comply with the relevant rules in the District Plan or consent

conditions, and that he considers the discharges at the Site pose a risk to human health.

[14] Mr Lewis describes how the Site was one of 12 lots created from subdivision. He

attaches a copy of the subdivision consent to his affidaviU Condition 1 (d) of the

subdivision consent is relevant insofar as it requires, among others, that key design

parameters for the proposed individual onsite wastewater treatment and disposal

systems to serve each lot shall be provided to the Council for approval.

[15] Mr Lewis records that the first and second respondents have been the owners of

the Site since 7 September 2018. For the reasons outlined in his affidavit, Mr Lewis

states that the third respondent is the occupier of the Site and in control of it. He attaches

an affidavit from Paul Raymond Jeffries sworn in respect of another proceeding.3 Mr

Jeffries considers that the third respondent is "the primary occupant of the Site", having

first met him in June 2015.4

1 Compliance Report, 17 February 2019, pp 63 - 66, attached as Exhibit H to affidavit of George Robert Lewis.

2 Affidavit of George Robert Lewis, attachment "C".

3 Affidavit of George Robert Lewis, attachment "E".

4 Affidavit of Paul Raymond Jeffries, paragraphs 13 and 6.

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[16] Mr Lewis describes the compliance background in relation to the Site, much of

which relates to the time before the first and second respondents became owners. It is

noteworthy, however, that the problems outlined by Mr Lewis and dating back to October

2015, persist to this day.5

[17] Of relevance to this proceeding is that a Council inspection on 9 October 2015

focused attention on the construction of a main building at the Site "consented as a non­

habitable, un-serviced outbuilding".6 Following the Council inspection, it became clear

that the intended use of the main building was for living purposes.

[18] Following construction of the main building, a further inspection revealed that a

shipping container had been placed on footings alongside the main building, with a

bathroom and laundry being installed. A Council inspection confirmed that plumbing and

sanitary services had been installed without any building consent, and there was no

evidence that the installation had been performed correctly.?

[19] Action was taken under the Building Act 2004 on 13 April 2017 with the issuing of

a Dangerous Building Notice and an Insanitary Building Notice to the then registered

proprietor of the Site. This was based on an assessment by Council officers that the

buildings on the Site met the statutory criteria for "dangerous" and "unsanitary" buildings.8

The notices were not complied with.9

[20] On 13 April 2017 abatement notices were issued under the RMA to the previous

owner. The notices required specific action in relation to the septic tanks, among others.

There was no compliance with the abatement notices. 10

[21] Having had difficulty accessing the buildings on the Site, in December 2018

orders were obtained from the District Court enabling Council officers to enter the

household units on the Site. Those orders were executed on 1 February 2019 and a

Council contractor, Rosemary McLaughlan, assisted to document the results of that

investigation.

5 Affidavit of George Robert Lewis, paragraph [4].

6 Affidavit of George Robert Lewis, paragraph [4.4].

? Affidavit of George Robert Lewis, paragraph [4.9].

8 Affidavit of George Robert Lewis, paragraph [4.10].

9 Affidavit of George Robert Lewis, paragraph [4.11].

10 Affidavit of George Robert Lewis, paragraph [4.12].

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Wastewater systems

[22] Mr Lewis attaches a copy of Ms McLaughlan's Compliance Report dated 18

February 2019 to his affidavit, and states that it is on the basis of that report that interim

enforcement orders are sought.11 Mr Lewis is of the opinion:

6.2 The wastewater systems at the site are inadequate to cater for all the current unconsented connections, and the land disposal fields do not meet the thresholds for avoidance of potential groundwater and surface water contamination.

6.3 There are two septic tanks on the property, one that services the main dwelling and the other the sleep out. Invasive and visual inspections of both tanks were carried out with the assistance of a digger operator on 1 February 2019. There were unpleasant odours present both inside and outside the main structure, and mosquitos were flying around when the drain was opened up.

6.4 Dye testing carried out showed effluent to be present and pooling at less than .5m from the property boundary. A water sample taken from the pond on the neighbouring property directly adjacent to where the effluent pipe is concluded high levels of E.coli present.

6.5 In her compliance report, Ms McLaughlan has noted that "there is no doubt that there would be raw sewage discharging into the neighbouring property especially in the wet months".

[23] Mr Lewis concludes at 6.7:

6.7 In summary, the installation of both of these septic tanks is very poor and there is no effluent disposal field for either of the two septic tanks. The foul water simply discharges out the end of the pipes adjacent to the neighbour's property. Human health effects are therefore a potential issue.

[24] In his section 5 headed 'Non-compliance', Mr Lewis sets out his opinion that the

respondents may be in breach of the following sections of the RMA:

(a) s 9(3) of the RMA citing Chapter 13 - Residential Zone, District Plan Rule

13.14.6(3) a), b) and c) for wastewater disposal. He also refers to condition 1

d) of subdivision resource consent 060060;

(b) s 15(1)(b) of the RMA by the respondents because of the "discharge from

septic tanks at the site and confirmed contamination" .12

[25] Mr Lewis concludes that the interim enforcement orders sought are necessary to

ensure that the respondents comply with the RMA, the District Plan and the subdivision

consent; and avoid, remedy or mitigate any actual or likely adverse effect on the

environment. 13

11 Affidavit of George Robert Lewis, paragraph [4.19]. 12 Mr Lewis also details the breaches in section 7 of his affidavit. 13 Affidavit of George Robert Lewis, paragraph [8].

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Making an ex parle interim enforcement order

[26] This Court's authority to make an interim enforcement order is conferred by s 320

of the RMA.

[27] I am satisfied that it is necessary to make interim enforcement orders against the

respondents in relation to the wastewater systems on the Site. I accept the evidence of

Mr Lewis, as briefly summarised above. The evidence shows that the respondents are

undertaking activities, or permitting those activities to be undertaken, in a manner that

contravenes District Plan Rule 13.14.6(3) a), b),. and c) for wastewater disposal, s

15(1 )(b) of the RMA and under condition 1 d) of the subdivision consent. I accept the

evidence of Mr Lewis that the interim enforcement orders sought are necessary to ensure

that the respondents comply with the RMA, the District Plan and the subdivision consent

and avoid the adverse effects presently occurring.

[28] In light of this evidence, it is appropriate to make orders that will guard against

further non-compliance, limit the risks associated with the residential and wastewater

activities on the site, and at least contain the extent of adverse effects on the environment

resulting from contraventions of the District Plan and the RMA. The orders sought

respond directly to the enforcement issues, which are apparent from the evidence and

are generally framed in appropriate terms.

[29] Given the history of enforcement issues in relation to the Site, there do not appear

to be any other matters in the evidence that give rise to any doubt about the compliance

issues raised.

[30] Before making orders, I must consider the matters outlined in s 320(3) of the

RMA.

Effects of not making an order

[31] Considering the effect of not making an interim order, the Council submits that

the orders sought are necessary to address an immediate threat to the environment,

namely the discharge of raw sewage onto land and into water from inadequate and

poorly-installed septic tanks. The presence of E-coli in a neighbouring pond constitutes

""'-S~~-L'O~'"-''', a documented risk to human health.

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Undertaking as to damages

[32] In relation to the giving of an undertaking as to damages, counsel for the Council

submits that it is reasonably well-settled14 that an undertaking as to damages may not be

necessary where the applicant is:

(a) protecting public, rather than private, interests;

(b) a consent authority performing a regulatory role; or

(c) unquestionably, financially capable of meeting any award of damages.

[33] I accept the submission that those three grounds are applicable in this case. I do

not consider that the Council is required to provide an undertaking as to damages.

Should I hear from the applicant or the respondents?

[34] In relation to whether it is necessary for the respondents to be served with notice

of the application, or for a hearing to be held, I am satisfied on the evidence of Mr Lewis

that the situation is one where the making of the order ex parte is appropriate and there

is no need to hear from the Councilor the respondents. The position may be different if

there were no history of non-compliance and other enforcement action, but the history in

this case, coupled with the nature of the risk to the environment, persuades me that I

should make these orders without a hearing.

[35] I record the protection afforded by s 325(5) of the RMA, ensuring that if the

respondents do wish to raise any matter, then there is an immediate right to do so.

Other matters: anticipatory consent

[36] Under s 320(3)( d) of the RMA, I consider the Council's request that the Court give

consent under s 315 of the RMA, on an anticipatory basis, that should the respondents

fail to comply with the orders, then the Council may:

a. Comply with the order on behalf of the respondents, and for this purpose, enter upon any land or enter any structure (with a constable if the structure is a dwellinghouse); and

b. Sell or dispose of any structure or materials salvaged in complying with the order; and

14 Relying on Dunedin City Council v Saddle Views Estate Limited [2015] NZEnvC 24, paragraph [15]; Palmerston North City Council v Golf City Developments Limited [2014] NZEnvC 264, paragraph [11]; Waikato Regional Council v Cox, Environment Court A045/98; Auckland Council v Chen Hong Co Limited [2016] NZEnvC 171, paragraphs [9]-[10]; and Auckland Council v Mao [2016] NZEnvC 188, paragraph [13].

13

c. After allowing for any moneys received under paragraph (b), if any, to recover the costs and expenses of doing so as a debt due from the respondents jointly and severally.

[37] The Council submits that the long history of non-compliance and general lack of

cooperation by the third respondent justifies a contemporaneous order under s 315 of

the RMA.

[38] The Court will not normally make orders under s 315 at the same time as making

an enforcement order, as it is not generally appropriate to assume non-compliance.

However, there is case authority to the effect that anticipatory orders can be appropriate

in certain circumstances such as where there have been difficulties with compliance,

effectively displacing the presumption of compliance, or in cases where there is an urgent

need for implementation of the enforcement orders. 15

[39] In this case the first and second respondents are relatively recent owners of the

Site, dating from 7 September 2018. Compliance issues arose prior to their ownership

but continue to this day. However, the third respondent's occupation of the Site precedes

the first and second respondents' ownership, and dates back to at least 2015.

[40] Given the history of the Site, difficulties encountered in investigating the Site, and

the risks presented by the discharge of effluent, I consider that this is an appropriate case

for such consent to be given to ensure that the adverse effects of the discharge on the

environment are addressed as soon as possible.

Outcome

[41] For those reasons, within the discretion conferred by s 319 of the RMA and in

consideration of the relevant matters set out in ss 314-319 of the RMA, under s 320 of

the RMA I make the interim enforcement orders sought by the Council against the

respondents as set out in Order A at the beginning of this decision and on the terms and

conditions set out in Order B.

[42] I also grant consent to the Council to act under s 315 of the RMA in the event that

the respondents do not comply with these orders, as set out in Order C.

[43] As required by s 320(4) I direct the Council to serve the respondents and direct

15 Hamilton City Council v McQuade, decision A121/2001 (Environment Court); Whangarei District Council v Montreal W94/92 (PT); Waitakere City Council v Gordon A 13/93.

14

that the Order shall take effect from when they are served, as set out in Order D.

[44] Costs are reserved.