Court upholds council pest rules


The District Court recently upheld the powers and actions of Waikato Regional Council to undertake pest plant control and bill property owners if they fail to carry out such work to the required standard of the regional pest management strategy.

In a complex case brought by a landowner who had the pest plant woolly nightshade on his property near Pokeno, it was alleged the council exceeded its powers under the Biosecurity Act 1993 when it carried out woolly nightshade removal and then billed the landowner.

A council biosecurity contractor first noticed woolly nightshade on the property in 2002 and, after making various requests to get the weed destroyed, eventually sent a notice to the landowner in 2005 formally requiring that the woolly nightshade be dealt with. The contractor had also tried to help the landowner locate a suitable weed control company.

In 2007 the contractor became frustrated with the lack of progress and in January issued a further notice under the Act for the landowner to destroy all woolly nightshade on his property. Some limited control was subsequently undertaken.

However, an inspection by the contractor in July 2007 found 90 per cent of the woolly nightshade still remained and the council organised for the work to be done under its regional strategy powers. The landowner was subsequently billed a total of nearly $11,000 in charges and related costs. After receiving this, he made a number of legal claims alleging the council had acted improperly.

Judge Gibson, sitting in the Manukau District Court in August 2010, has found that the biosecurity contractor and the council had acted properly and fully within its powers in carrying out the work:

The council’s intention in carrying on with the work was merely to destroy the infestation of woolly nightshade after the plaintiff had failed to adequately do so, the judge said. “So I do not find any element of bad faith in any aspect of the [council’s] dealings over the matter.”

Apparently the landowner did make some attempts to deal with the woolly nightshade, but not nearly enough.  Woolly nightshade is designated a “total control” pest, which means owners are responsible for eradicating the pest whether or not its introduction was anything to do with them.

A useful clarification of the law and timely warning to landowners ducking their responsibilities.

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About Ivan McIntosh

I am a partner of Carter Atmore Law...residing in City Road just off the busy thoroughfare of Symonds Street, Auckland, New Zealand....where we are specialist business & property development lawyers, working for both local and international clients. Proud husband to Joanna, and dad to two sons. Passionate rugby supporter. Email: imcintosh@calaw.co.nz Ph: 64 9 921 5026
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