Dewhirst update: the bed of a river begins with its banks, not its fullest flow
The Court of Appeal has dismissed the Canterbury Regional Council’s (the Council) appeal of the High Court’s decision on how to find the “bed” of a river under the Resource Management Act 1991 (RMA). The litigation arose because of the prosecution of Dewhirst and Dewhirst Land Company Ltd for works undertaken in the Selwyn River in 2016.
The Court of Appeal upheld the High Court’s decision that the bed should be found by identifying the river’s banks first, dismissing the interpretation favoured by the District Court and argued for by Council, that the bed should be found by identifying the area covered when the river was at its fullest flow (including flood events), limited by a holistic analysis of the river and topographical features that could be banks.
The key distinction between the two interpretations is that on the Council and District Court’s interpretation, the river bed area had the potential to encompass a greater area with greater flexibility because the exercise was not constrained by identifying the banks from the outset. However the Court of Appeal found difficulty accepting it because its application could have effects not anticipated by the RMA, for example, it could result in the area covered by a one-in-50-year flood event being deemed the “bed” of a river. The Court of Appeal held that there were other ways to protect the beds of rivers and lakes under the RMA without the need for such a broad definition.
The Court of Appeal considered the application of its definition to section 2(a)(i) (the RMA definition of “bed” for esplanade reserves, esplanade strips and subdivision), because Council asserted that the approach to finding the “bed” in that part should be the same exercise as under section 2(a)(ii). The Court held that the interpretation of 2(a)(i) should not have bearing on section 2(a)(ii), because there was no warrant to apply the same approach to the different circumstances and different wording in the two definitions.
The Council can seek leave to appeal the decision to the Supreme Court by 6 November 2019.