A Middlemarch farmer's two convictions have been set aside by the High Court, which found he did not disturb a riverbed, as the Otago Regional Council maintained.
John Andrews Carruthers was convicted in the Dunedin District Court for digging in the bed of a stream and allowing livestock to disturb the bed of a river, both offences under the Resource Management Act (RMA) if done without a resource consent.
The charges related to the disturbance of the bed in an unnamed tributary of Lug Creek and 390m of waterway pugged by stock in 2010.
Carruthers appealed the decision to the High Court on the grounds Judge Laurie Newhook applied the wrong legal test to whether the waterway was a river or an artificial watercourse and wrongly found it was a river.
In the High Court at Dunedin last month, Carruthers' counsel, Colin Withnall QC, and Otago Regional Council counsel Alastair Logan put their case to Justice John Fogarty.
Mr Withnall said the issue was whether it was a river as defined by the RMA or an artificial waterway, contending the definition of a river was a continual or intermittent flow of fresh water, excluding an artificial waterway.
Mr Logan argued that the RMA used the words ''continuously'' and ''intermittently'' to cover all conditions from major rivers which never ran dry to dry gullies, which flowed only when there was sufficient rain.
Any flow of water in a riverbed was a river, irrespective of the source of the river, so the artificial watercourse exclusion did not apply in this case, he said.
Justice Fogarty, in a recently released written decision, said he was satisfied that it was not proved there would be a continual or intermittent flow of water in the current watercourse from State Highway 87 to Ngapuna Rd, without the flows of water from the diversion of Six Mile Creek.
Once ''modified watercourse'' had not been proven, it followed that the waterway could be an artificial watercourse, as the definition of river proffered only three options: river, modified watercourse and artificial watercourse, he said.
He did not think the Otago Regional Council had proved the case amounted to disturbance of a riverbed or a breach of the RMA.
As a result, Mr Carruthers' appeal was allowed and the convictions were set aside.
Justice Fogarty said he had reserved his decision on costs.
