A consequence of a decision on whether an unnamed tributary
near Middlemarch is natural or an artificial waterway could
''absurdly'' mean every gully in the country was considered a
river, Colin Withnall QC says.
If the court accepted the Otago Regional Council's
interpretation, all those gullies would then be subject to
the restrictions and provisions on rivers under the Resource
Management Act (RMA), he told the High Court at Dunedin
A similar concern was also expressed by Justice John Fogarty
earlier in the hearing, when he questioned regional council
counsel Alastair Logan, during an appeal by Middlemarch
farmer John Carruthers against an Environment Court decision
which convicted him on two charges under the RMA, relating to
the the disturbance of the bed of an unnamed tributary of Lug
Creek and 390m of waterway pugged by stock in 2010.
Mr Withnall, counsel for Carruthers, said the issue was
whether the watercourse was a river, as defined by the
Resource Management Act, or an artificial waterway.
He contended the definition of a river was a continual or
intermittent flow of fresh water, excluding artificial water
In this case, the body of water existed only by artificial
means, as the water was diverted from Six Mile Creek and
conveyed by water races to flow, in part, in a natural
What the water flowed through, the bed and banks were not an
issue. The key was how the water got there, he said.
A key point was that there would be no water in the section
below the property's homestead if it was not for the diverted
Evidence presented during the earlier hearing was that in a
storm or high rainfall event the water would not flow down
the waterway, but across it, following the natural fall of
the land to nearby Monkey Creek.
However, Mr Withnall contended the RMA provisions covered
only flows during normal conditions, not during flood
The word river had a commonly-accepted meaning and the use of
words ''continuously or intermittently'' provided for the
separation of the water body from the bed.
If a waterway did not flow enough to sustain natural riparian
values, it was not a river, he said.
The interpretation that led to the proposition that anything
carrying water after a big storm was a river could not be the
interpretation intended by Parliament, because to do so would
result in the ''absurd consequence'' of every gully in the
country being a river and subject to the RMA, Mr Withnall
This was disputed by Mr Logan, who said the RMA used the
words ''continuously or intermittently'' to cover all range
of conditions from major rivers, which never ran dry, to dry
gullies, which flowed only when there was sufficient rain.
The waterway between the farm dam and Ngapuna Rd had the
meander pattern and sinuous characteristics of a natural
watercourse, as opposed to an artificial one.
He contended any flow of water in a river bed was a river,
irrespective of the source of that water, so the artificial
watercourse exclusion in the RMA did not apply in the
''All the races have done is provide water to a pre-existing
While there were artificial features of the stream, they did
not deviate in any significant way from the natural flow
paths, Mr Logan said.
Justice Fogarty reserved his decision.