Farmer Denies Gully Is Watercourse

Press, Volume CVI, Issue 31315, 10 March 1967, Page 10

Farmer Denies Gully Is Watercourse

A gully on a farm which was fed by rain water was not a watercourse within the meaning of the Act and a farmer was entitled to put stock ponds in any gully he chose without having to obtain the approval of the Catchment Board, Mr P. T. Mahon said in the Magistrate’s Court yesterday. Mr Mahon was appearing for Christopher Michael Fleming, a farmer, who has pleaded not guilty to 10 charges of . obstructing 10 watercourses in the North Canterbury Catchment Board's district between February 1 and 28 1966, without the consent of the board.

The charges were adjourned part heard to today by Mr J. D. Kinder. S.M. Mr C. M. Roper is prosecuting. Mr Mahon is assisted by Mr G. H. Gould. The Magistrate inspected the farm yesterday afternoon. Mr Roper said that in February, 1966, Fleming had constructed 10 earth dams on his Cashmere farm after being told by the board that they would not be approved without a survey. Under the Act, a watercourse was defined as every stream, river,' passage or channel on or below the ground, natural or not, through which water flowed intermittently or constantly. Erie Brookland Dalmer, chief engineer of the North Canterbury Catchment Board, said Fleming had applied to the board for permission to erect dams for watering stock. He was told that the dams would not be approved by the board but that water holes could be dug provided that the excavation did not obstruct any watercourse.

In February the farm was inspected and It was found that dams were being constructed.

Fleming was advised by letter to cease work. In reply, Fleming said that he had been told by a representative of. the board that he could build stock dams provided the course of the stream was not altered. The term used was stock pool or water hole and not stock dam, Dalmer said. Cross-examined by Mr Mahon, Dalmer agreed that the board considered any billside gully was a watercourse, even if no water ran down it except after rain. He denied that the board’s view was misconceived. Mr Mahon: Technically any farmer in New Zealand would have to get the approval of the Catchment Board if he ploughed across a gully? Dalmer: Yes, but that would be stretching things to absurd-

ity. It a person has ■ house property on a billside and when it rained water ran down the driveway is that not a watercourse within your Interpretation of the statute?—Yes. I think it is. -

So if the householder in Cashmere wanted to make any alteration to his driveway he would be required to get the permission of the Catchment Board?— That is the result of the definition of watercourse in the Act, but it is taking the definition to absurd lengths. Witness agreed that Fleming had consulted the board with reference to a farm plan after he had purchased the 1600-acre property at the beginning of 1965 and that the board had advised him about certain tree planting and fencing. Fleming had also put to the board a proposal to construct three dams to stop flooding in the lower part of the property and to provide water for stock. Dalmer said the board refused Fleming permission for all dams and he was advised to construct stock ponds. These should have consisted of an excavation in the gully floor but Fleming bad made dams by banking the earth up on the bottom end. Fleming dug what he thought were waterholes and you came along and s aid they were dams? —Yes.

Dalmer agreed it was standard practice in New Zealand to build stock ponds in gullies but all those with: dams on the downward side were illegal unless approved by the board. Why was Fleming not told to remove only the dam parts?— I thought that was implicit in the letter sent him on March 10.

Dalmer accepted that if all the dams on Fleming’s property burst simultaneously no water would escape from his property but he said that silt eould ultimately find its way into the Heathcote river. He agreed that apart from pumping this was the only method of getting water to the higher ground. Opening for the defence, Mr Mahon said gullies were not mentioned in the definition of a watercourse in the act.

"These gullies on Flemings farm are dry but if it rains long enough and hard enough, water runs down them,” Mr Mahon said. The definition of a watercourse was based on common law. It had been held in Australia on more than one occasion that a gully which just carried rainwater was not a watercourse.

"The claim advanced by the board is a preposterous one,” said Mr Mahon. "It would make every depresion on a hillside carrying rain water a watercourse.

The repercueeions were so wide that the court should be reluctant to rule that a hillside gully was a watercourse. When penal provisions were in-

volved it required etrict interpretation. U the defendant was convicted he was liable to substantial fines and the board could remove all the dams and charge him for the work. "This property on which the carrying capacity bad been increased two-and-a-haif times would then revert to what it was before the stock ponds were put in. If the legislature thought catchment boards should control gullies, then it should say so in the statute.

Fleming had given evidence and ‘was about to be crossexamined when the case was adjourned to today.