27 February 2014
A High Court judge yesterday ruled in favour of the QEII National Trust in a case that took Canterbury farmer R H Wobben of Netherland Holdings Limited to court for breaching an interim injunction order. The order was issued to prevent him causing ongoing damage to covenants on his property.
The purpose of the injunction was to “hold the fort” while the Trust progressed its claim to restore woodland covenants that Mr Wobben extensively damaged early in 2013 by clearing large areas.
The Trust was forced to apply for the interim injunction order after Netherland Holdings Limited failed to adhere to a written agreement to stop further damaging activity in the covenants while restoration steps were being agreed. It subsequently lodged an application with the High Court after it obtained clear evidence that Mr Wobben was ignoring the injunction conditions.
Netherlands Holdings Limited’s actions have severely damaged one of the last remaining pockets of undisturbed kanuka woodlands on the Canterbury Plains. Kanuka woodlands are only found in semi-arid, low nutrient environments such as the Canterbury Plains. Due to pastoral development 99.7% of this type of woodland ecosystem has been lost on the Plains.
The primary objective of the Trust’s action is to defend the covenant agreement and secure the restoration of the rare woodland remnant.
The Trust was able to prove that Mr Wobben was operating irrigation equipment in the covenant and had applied fertilizer to parts of it. Both actions are very detrimental to the natural conditions required for the restoration and regeneration of the damaged covenants and directly violated the court injunction.
Justice Rachel Dunningham found that the defendant was in contempt of the Court by “repeated and deliberate breaches of the order”.
“I have no doubt that this was conduct which was wilful, reckless or contumacious on the part of the defendants.
“Mr Wobben should be in no doubt that imprisonment is an available option to punish a wilful or reckless disobedience of a Court order,” Justice Dunningham said.
Justice Dunningham recognised that the Trust’s action was taken only after its strenuous efforts to come to an agreement with the landowner to halt damaging activity and reinstate the covenants had failed.
“It is an aggravating feature of this case that the Trust has had to escalate its response to the alleged breaches of the ... covenants, from informal advice, to formal undertakings and then to seeking interim orders from the Court,” she said.
Trust Chair James Guild said the interim case has reinforced the Trust’s position as the perpetual trustee and defender of open space covenant agreements.
“While we are still to have our day in court for the original covenant breaches, this interim case shows that the measures we have had to take to defend the covenant are legally justified, and breaches of court injunctions issued on our behalf are taken seriously and can have serious consequences.
“We look forward to the day when work to restore this rare woodland ecosystem can start in earnest,” Mr Guild said.
The case seeking full restoration of the covenanted areas is still to be heard in the High Court later this year.
About the dryland kanuka woodland covenants relating to this case
Though once common all over the Canterbury Plains prior to pastoralism, dryland kanuka woodlands have almost completely disappeared due to cultivation and fire. Only about 0.3% of dryland ecosystem is now left on the Canterbury Plains and of that only 0.1% is under formal protection. Each remaining remnant is rare and unique, with its own assemblage of plants and animals, and is essential for conserving the original biodiversity of the Plains.
The kanuka woodlands in this case sheltered native shrubs, clematis, small herbs, ferns, and a carpet of mosses and lichens and, importantly, unidentified flora and fauna species. Of equal importance is the abundant insect population of native moths, beetles and spiders that inhabit this type of ecosystem, with some species found living only on dryland kanuka.
One of the cleared areas had been recognised as an indigenous vegetation and habitat site with significance by the Waimakariri District Council, in addition to being protected by a covenant. The Council has also lodged an action in the District Court for the damage caused to the site.
QEII National Trust
QEII (Queen Elizabeth II National Trust) is an independent statutory body whose core activity is to assist private landowners in New Zealand to protect significant natural and cultural features on their land with open space covenants.
Open space covenants are registered on the title to the land and cannot be removed. The covenant agreement binds all landowners. Covenants are protecting in perpetuity significant natural, cultural, historic, and cultural features on their land with open space covenants.
Since the National Trust’s establishment in 1977 landowners throughout the country have voluntarily established over 4,000 open space covenants that protect in excess of 125,000 hectares of special features on their land. This is an area equivalent in size to the combined areas of Aoraki/Mt Cook, Egmont/Taranaki and Abel Tasman National Parks.
More information on QEII National Trust can be found at www.openspace.org.nz.
Mike Jebson CEO QEII National Trust, 04 474 1683
James Guild, Chair, National Trust Board of Directors, 03 318 6873
Media liaison: Anne McLean, QEII National Trust, 04 472 6626