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Fined for unconsented earthworks

Developers of a lifestyle block at Okitu, fined last week for resource consent breaches, have been given the go-ahead by Gisborne District Council to further expand the project.

Jonathan Norman Bain, his son-in-law Patrick John Kershaw, Bain’s company Scarly Heights Limited (in which Kershaw is a shareholder), and earthworks company A F Thompson Construction Limited, were sentenced last week in Gisborne District Court for charges brought by the council under the Resource Management Act.

Each of the four pleaded guilty to carrying out unconsented earthworks and discharging sediment on to land where it could enter water, between January and April last year.

Bain, Kershaw, and SHL further pleaded guilty to a representative charge of contravening an abatement notice, in relation to two sets of notices issued by council to them between March 14 and April 11 last year.

Judge Brian Dwyer convicted and fined them all — Bain a total of $36,000; SHL $33,600; Kershaw $16,800; and A F Thompson $37,500.

In September last year Kershaw and the Bains submitted a new proposal to council requesting to subdivide the property into seven lots, four of which will have building sites, including two of the earlier illegally-constructed ones.

Consent was granted on January 18, this year, and includes permission for remaining remediation work required by previous abatement notices.

The charges for which the group were fined related to a 10-hectare lifestyle block on affluent Scarly’s Way, Okitu.

In November 2019 Bain and his wife Christine (removed from the prosecution) applied for resource consent to undertake earthworks to create a 220-metre-long access road, one house platform, and a borrow-to-fill site.

Frustrated by a delay in progress and after falling out with his two separate engineering consultants LDE and Keith Pomare of Smart Projects Limited, Bain told the council in early 2020 to cancel the house site part of the application.

He was subsequently issued consent for just the accessway, to involve 3700m3 of earthworks.

Notwithstanding the limitations of that consent, Bain and Kershaw instructed A F Thompson to undertake substantial earthworks — $195,000 worth, in which 10,750m3 of earth was moved. Thompson’s did not ask to see the consent.

In addition to the lone-consented access road, Thompson’s created multiple unconsented access tracks, formed access across a stream, two building platforms for houses, and a levelled area for horse stables.

Soon after the earthworks started, Kershaw told the owners of neighbouring properties that three consented house sites were being constructed — one for him and his wife, another for the Bains, and one to be subdivided from the main property.

As work progressed in March and April, neighbouring land owners grew concerned about the escalating earthworks, the potential for landslides, run-off after rain and dust clouds during dry spells.

Council received numerous complaints. Enforcement officers visited the property twice.

During the first visit in March, Bain and Kershaw said AF Thompson were doing the work because they needed it due to the drop off in forestry work caused by Covid-19.

Officers noticed numerous consent breaches including deficiencies in provisions for run-off control. Abatement notices were issued.

Bain and Kershaw were also directed to prepare the site for impending heavy rain and passed the warning on to Thompsons.

Despite this, rainfall on March 30 revealed further issues and prompted more complaints.

Council enforcement officers went again to the property, noticing failing sediment fencing, water pooling on site at borders with neighbouring properties, and sediment-laden water overflowing from sediment ponds.

Sediment-laden water was escaping the property at three places, running into a large natural pond on neighbouring land and into a tributary of the Hamanatua Stream, which flows into the sea at Wainui Beach.

Council instructed Bain and Kershaw in April to engage a suitably qualified and experienced engineer to assess the stability of the earthworks. It recommended LDE (the company previously engaged by the group and one council used in its independent assessment of the site in early March.)

A subsequent report by LDE listed several areas of concern about lack of site preparation, lack of adequate compaction and risk to neighbouring properties and water courses from landslip inundation and sediment run-off.

Council issued further abatement notices requiring remedial work as specified in the LDE report commissioned by the group.

Most of the remedial work was completed by a May 31 deadline but fill from the main house site was still needed to be removed and remained there when the summary of facts for the prosecution was prepared on January 27 this year.

Council did not respond to The Gisborne Herald’s request for comment on the recently-issued consent.

DEVELOPMENT: The 10.2 hectare property off Scarly’s Way before (pictured above) and after (next picture) developers undertook large-scale unconsented earthworks that sparked numerous complaints from neighbouring landowners to Gisborne District Council. Pictures supplied
SITE: The 10.2 hectare property off Scarly’s Way after developers undertook large-scale unconsented earthworks that sparked numerous complaints from neighbouring landowners to Gisborne District Council.
CONSENT BREACH: Heavy rainfall on March 30 last year prompted another visit to Scarly Heights by GDC enforcement officers. Among resource consent breaches seen were deficiencies in provisions for run-off. Failing sediment fencing contributed to the amount of sediment-laden water that escaped from the property.
UNCONTROLLED: Sediment-laden water escaped from Scarly Heights during heavy rain last March and made its way into this natural pond on neighbouring land. It also entered a tributary of the Hamanatua Stream, which empties into the sea at Wainui Beach.
CONTAMINATED CREEK: A tributary of the Hamanatua Stream was noticeably discoloured by water contaminated with sediment that entered it from the Scarly Heights development site last year. An accumulation of fine sediment discharge like this is now recognised as the biggest cause of contaminant in New Zealand’s fresh and coastal waterways.