Staff are being trained in the up-to-date method for excluding pasture land from potential wetland classification. Photo: RNZ Andrew Robertson
Wellington's regional council is sticking by a wetland identification method which failed to hold up in court, sparking a $20 million defamation case.
Developer Stu Adams was convicted of two breaches of the Resource Management Act related to earthworks associated with building houses.
Multiple reports disagreed on whether a 15-hectare piece of land should be considered a wetland or not, and in 2022, the Environment Court threw out the case against him for damaging a wetland, concluding council could not prove the wetland existed in the first place.
Adams said he and his family were subject to a backlash in person and online, and that his business had suffered as a result of the bad publicity.
His lawyer, Stephen Iorns, said people were "still thinking of Stu as a dodgy developer because he recklessly damaged a wetland".
Adams himself said he had now been hampered by the bad reputation for years, and was suing the council for $20 million for defamation, malfeasance in a public office and malicious prosecution.
A council report tabled on Thursday showed the council had made a series of changes to the way it would manage wetlands, and was currently liaising with the Ministry for the Environment and industry experts to test its processes.
It would be compiling a list of external experts in wetland vegetation, soils, hydrology and fauna, to support future work and review some of its recent work, and had sought guidance from the ministry on best practice methods.
Staff were now being trained in the up-to-date method for excluding pasture land from potential wetland classification - a key sticking point in both cases.
But the "Clarkson method", adapted from an American alternative which assessed three environmental criteria - vegetation, soils and hydrology - would continue to be used, despite its failure to hold up in court.
In another case, landowner Adrian Page was sentenced to three months in jail, and his partner Julie Crosby fined $118,750, for damaging wetlands which were identified using the same "Clarkson method".
Page served six weeks of a three-month sentence in Rimutaka Prison over Christmas 2021.
The couple appealed their convictions, and in March the Court of Appeal overturned 19 offences relating to the wetland, while six convictions relating to offending against abatement notices and an enforcement order still stand.
The New Zealand Herald reported in 2018 that Page had been barred from taking court action against the Whanganui District Council for vexatious litigation for the past nine years, in relation to a dispute that dates back to 2008 over earthworks at a different property.
Does the Clarkson method hold up?
In court? No.
But council said in a statement the Clarkson tool remained "a useful part of Greater Wellington's toolkit".
"The Court of Appeal judgment provides Greater Wellington, the local government sector and the Ministry for the Environment with clear direction that wetland identification needs to be strengthened with pedological and hydrological evidence, and evidence of the area of being able to support animals when considering criminal prosecution."
Council chairperson Daran Ponter raised the issue at Thursday's meeting.
"The methodology that seems to have failed us to some extent in recent cases is the Clarkson method, and that's a method that seems to have been endorsed by the Ministry for the Environment."
He said council had told the minister "that work needs to be done to shore [it] up".
But when asked whether further wetland identification work would need to wait for updated guidance, council officers said no.
James Luty, the council's enforcement officer in both court cases, said: "If non-compliant activities were to occur in an area where we had only used the Clarkson method to delineate it, then we would need to engage other methods and more expertise to get the level of certainty required to pursue enforcement action."
Greater Wellington Regional Council principal advisor Matt Hickman said: "If we have to take enforcement action, then we will be going to the next degree in terms of those tests around the methodologies that we would use for those criminal proceedings. That's what the court cases have taught us."
But for areas not headed for court, the Clarkson method would do.
Adams' lawyer Iorns said this was problematic, as the onus was on landowners to prove a wetland did not exist, rather than on the council to prove that it did.
And that needed to change, because the imbalance of resources and power between landowners and the council immediately put residents on the back foot.
"It's just perpetuating the errors that have plagued both of the cases," Iorns said. "It seems like while they've learned some of the lessons from those, they haven't taken a step back and looked at the bigger picture."
A Ministry for the Environment spokesperson said it was aware recent cases had "noted the Clarkson method was inadequate, or not correctly applied, in the context of a criminal prosecution".
An advisory group of experts had been formed to examine these issues, and the council had had input into the design of this process.
"[The ministry's] current delineation protocol (which is referenced within the National Environmental Standards for Freshwater) remains a useful tool," it said.
"The government has said it is committed to review and replace the National Policy Statement for Freshwater Management, which provides an opportunity to address challenges around wetlands highlighted by the recent cases."
