A first-time Dunedin property developer says he is pleased a lengthy dispute with the Otago Regional Council that resulted in prosecution and cost him more than $100,000 is unlikely to happen to anyone else.
Mr Wells, a veterinarian, who with his father, Rob Lilly, has developed the 25-section Glendermid subdivision at Sawyers Bay, says he relied on Dunedin City Council advice that turned out to be incorrect and was unwittingly caught up in a dispute between the regional and city councils over which authority had the right to issue consent for works involving waterways.
In 2008, the city council told Mr Wells' surveying company no ORC consent was required to pipe a small stream that ran across the 2.4ha subdivision being created on the site of a former potato farm. Later, when run-off problems arose because of the work, the ORC said a consent had been required.
The prosecution arose from "officially induced error", Mr Wells said.
"It was ... frustrating for me ... and costly. It also delayed progress on the subdivision by about 12 months. It is good to know they have done something about it," he said this week.
The circumstances of the prosecution were "almost identical" to another last year that involved the diversion of a stream behind Kaikorai Valley Rd, he said.
In that case, a developer and a contractor were fined more than $26,000 for diverting about 5m of the un-named stream in 2007. They also had been told by the city council the work did not require ORC consent.
Dunedin City Council water and waste services manager John Mackie acknowledged his staff had given incorrect advice in the past and there had been confusion because both councils had jurisdiction over watercourse works.
Within the city boundaries, the city council has jurisdiction over waterways with catchments of less than 50ha, while the ORC has jurisdiction for waterways throughout the rest of Otago and for those within the city with larger catchments.
But Mr Mackie said the two authorities had worked closely together since 2008 to clarify the advice given to property owners. "Fruitful discussions" had taken place, he said.
The city council now handed out an information sheet that plainly stated watercourse consent requirements.
Problems with the piping work at Sawyers Bay were discovered after heavy rainfalls in September 2009. Sediment entered Thompson Creek, the source of water for the Sawyers Bay salmon hatchery and smolt-rearing tanks downstream, and the intake had to be shut off to prevent hatchlings from dying.
In November last year, Mr Wells' and Mr Lilly's development company, Lillypond Ltd, the contractor that carried out the piping work, and the surveying company were collectively fined more than $56,000 for discharging sediment into a waterway and breaching the Resource Management Act.
Asked if the city council had a moral obligation to contribute to Mr Wells' fines or legal costs because it gave incorrect advice, Mr Mackie said it did not.
It was the actions of individuals that resulted in the prosecution. The issue of who had issued the consent was "irrelevant", he said.
"[People] have a duty of care to prevent sediment from reaching waterways. Clearly, the sediment control measures taken by the contractor and the surveying company did not work."
That view was echoed by ORC chief executive Graeme Martin.
He said no-one had a right to put sediment or dirty water into a waterway and the ORC had a responsibility to "react when things went wrong".
The ORC had not changed its consenting or advice processes, he said. But he said city council staff were now "very clear of their roles" and the information sheet clarified consent requirements for the public.
