Hawke's Bay property developer criticised over dumped rubble pile

19:54, Mar 14 2014

A Napier developer has been criticised by the Environment Court for procrastinating over removing a huge pile of rubble that was dumped without resource consent.

The court has refused Malcolm Herbert's application to change an enforcement order and allow him more time to remove the pile, which spills from a Poraiti Rd property on to a neighbour's property and a sacred Maori burial site.

Herbert lives at the property, which is owned by his solicitor, Stephen Lunn, and his accountant, Stephen Reaney.

The three men are being prosecuted by Napier City Council for failing to comply with an enforcement order.

The Environment Court decision, issued on Thursday, followed a hearing this month.

About 150 truckloads of building rubble were dumped on a property in late 2011 and early 2012. It came from Napier buildings demolished by Herbert Construction.


The council was alerted to the dumping in January 2012 and issued an immediate stopwork notice as the amount of material far exceeded the 100 cubic metres permitted in the district plan.

Last June the council gained an enforcement order requiring the three men to remove the rubble or apply for a resource consent by October 28.

An updated resource consent application by Herbert was deficient, with required information not provided until November 11. Then he failed to pay processing fees.

On November 22, Herbert applied for an indefinite extension of time within which to comply with the order. Council opposed the application.

In court Herbert's lawyer, David O'Connor, claimed it was impossible for the fill to be removed or the resource consent granted by the timeline specified in the enforcement order.

Council lawyer Scott Smith said Herbert had been advised by contractors that the fill could be removed in 10 weeks and compliance was possible. He also noted that Herbert had agreed to have it removed by the deadline.

In the decision, judges John Hassan and Brian Dwyer said there was adequate time to remove the fill when it became apparent there was a problem in obtaining resource consent.

"He [Herbert] took the best part of 12 months to apply for a resource consent to regularise the position and only did so after the council had commenced its enforcement order proceedings."

Council senior planner Paul O'Shaughnessy said: "It is a good outcome, but the best outcome will be for the rubble to be removed or otherwise regularised with the appropriate consents obtained".

If a consent is not gained and the rubble remains, the council can remove it and charge the cost of doing so to those who failed to comply with the order.

The Dominion Post