Decision Reserved In Watercourse Case

Press, Volume CVI, Issue 31316, 11 March 1967, Page 19

Decision Reserved In Watercourse Case

“Mr Fleming is not a simple and confused rustic. He was given instructions by Mr Dalmer (Chief Engineer of the North Canterbury Catchment Board) as to what he could construct and he chose not to follow this advice,” submitted the prosecutor, Mr C. M. Roper, when the prosecution of Christopher Michael Fleming continued yesterday in the Magistrate’s Court before Mr J. D. Kinder, S.M. Fleming pleaded not guilty on Thursday to 10 charges of obstructing 10 watercourses between February 1 and 28, 1966, without the consent of the North Canterbury Catchment* Board. After the defence case had concluded, Mr G. T, Mahon, who is appearing with Mr G. H. Gould for Fleming, said that he had submitted on Thursday that the stock ponds were not constructed on water courses, but on gullies fed by rain water.

“Even if the stock ponds are held to be on watercourses, I submit that they were put there with the consent of the board. The Chief Engineer of the board authorised the stockponds and the defendant proceeded bona fide with the work.

"Because the Chief Engineer disagreed with the method doesn’t affect the fact that it (the board) authorised the stock ponds” said Mr Mahon. “The defendant would hardly build something directly against instructions. Just because the board brought up an academic technicality, doesn’t mean he is in the wrong. Mr Mahon conceded that stock ponds numbers one and six were on watercourses, but he said that while number one was in the course of construction, it was inspected by the Chief Engineer and at least one member of the board. He said that they did not prohibit the project at that stage. “This was general consent to build.”

He said that stock pond number six was constructed by the farm manager, but not according to Fleming’s directions.

“Mr Fleming is not liable if his servant erects this stock pond by mistake—he didn't authorise it to be constructed in that fashion.” Colin Arthur Gilmore-Wil-son, the secretary of the Wairarapa provincial district of the Federated Farmers, said that the stock ponds were

constructed in a similar manner to those In the North Island.

It was quite a common practice in Hawke’s Bay, Woodville and Wairarapa generally, although the constructions on Fleming's property were of a more exacting nature.

In contrast to the North Island stock ponds, Fleming’s had consolidated retaining walls—which appeared to be grassed and excessively large concrete spillways. Mr Roper: Wouldn’t the excavation of ponds without the erection of dams serve the same purpose? Gilmore-Wilson: You can’t sufficiently consolidate the downward side of a stock pond without its having some apex. A recent manager of Pyne, Gould, Guinness Ltd., Gordon Blair McCready, said he had known Fleming’s property for about 30 years. The main work on the land had been the subdividing of hill country and making water available to the subdivided areas. He estimated that the stock ponds had doubled the ewecarrying capacity, and increased the fat cattle content by 50 per cent The average rainfall would be about 30in, and after a reasonable amount of rain, the water would run down the gullies, though they were “bone dry” for about 30 per cent of the year. In reply to a question from Mr Gould, McCready said the only alternative to the present system would be to pump water to the areas required, but this would be economically unsound. “It is a question of whether or not there would be sufficient water in high areas.” . Mr Roper asked if there was any reason why the stock ponds could not be excavated without dams.

McCready replied that the water would run off fairly quickly and the farmer “must collect as much (water) as possible.”

Evidence was given by a law clerk, Samuel Richard Maling, that he flew over the defendant’s property, and along the Cashmere hills towards Lake Forsyth, and saw about 88 similar constructions to Flemings’s throughout the area. About 50 per cent of these were in gullies.

Gavin Ogilvie, a civil and structural engineer, said that if Fleming’s dams failed, harm could not be caused to adjoining properties. He agreed with Mr Roper that dams of this type would have a high failure rate if there were not adequate spillway provision. A consulting civil engineer, Ivan Lyall Holmes, considered that the only possibility of failure was in the erosion of the spillway, and this would be a progresive failure. “This would not be a dramatic failure. The spillway could be rebuilt in a matter of hours.” He said that the dams In question were constructed within “normal farm knowledge” and that the farmer would not need technical advice. The Magistrate reserved his decision.