Are you planning to develop land on or near a river bed?

Canterbury Regional Council v Dewhirst Land Company Ltd

A Canterbury farmer, Mr Dewhirst has had a recent triumph against the Canterbury Regional Council in a case which went all the way to the Court of Appeal involving charges by the Council of unlawful use of a riverbed and diversion of water in a river. Mr Dewhirst owned land adjacent to the Selwyn River which he planned to develop.

The High Court had dismissed the charges and the Council appealed the High Court’s decision.

The central issue of the case was the proper interpretation of “bed” as it related to a river under section 2 of the Resource Management Act 1991. “Bed” is defined as including the river’s “fullest flow”. The High Court had rejected the Council’s argument that “fullest flow” could include the river’s one in 50 year flood level.

The Court of Appeal agreed and held there to be significant difficulties with the Council’s interpretation, finding that “fullest flow” of a river must be something less than the point where it floods. The Council’s appeal was dismissed.

This case may have implications for developments on or near banks of rivers or other waterways and land that may previously have been precluded from development on the basis of it being part of a bed of a waterway may no longer be so.

If you would like more information about this case or on any issue relating to waterways, please contact one of TODD & WALKER Law’s Resource Management team members: [email protected], [email protected] or [email protected]