Fonterra’s fight for rights over use of wastewater pipe set to go to trial
Fonterra’s bid to have a judge deal with its claim regarding use of a drainage pipe on what was once Crown-owned land has been dismissed.
The dairy giant filed an application in the High Court asking for a summary judgment in its case against Longburn Holding Co, which if granted would stop the case going to trial.
Fonterra claimed it had existing rights to discharge wastewater via a drainage pipe, running from its dairy factory in Longburn, through land also owned by the holding company and into the Manawatū River.
The land in question was previously owned by the Crown and part of the New Zealand Railways Corporation.
Fonterra said that in 1926 an easement was granted to its predecessor company to discharge wastewater through that pipe, which also ran under several other properties.
In the 1980s, part of that land was acquired under the public works act for wastewater ponds and Fonterra said this was when a second pipe was built.
Fonterra also said since the introduction of the Resource Management Act 1991, it had been granted rights to discharge waste from that second pipe.
Longburn Holding Co purchased part of the land from the Crown in 2018 and disputed the first pipe ever existed.
When it purchased the property, it told the court it was not aware of the second pipe or any existing rights.
Director Richard Gordon said he only became aware of the issue in 2022 when Fonterra asked to have an easement put on the land.
He found out further details about what was in the pipe when Horizons Regional Council sent a letter to him that same year, he said.
Fonterra argued the Crown’s consent for the dairy factory to discharge its waste could be inferred because of a number of factors, including that construction of the second pipe was major infrastructure work.
It said the Crown would have known the relocation of the first pipe was a necessary result of the land acquisition, and through its ownership and management of land near the river must have been aware of the pipe’s outlet.
It had 30 years to object but never did. The court’s decision, recently delivered by Associate Judge Andrew Skelton, said there was no evidence that consent was ever given by the Crown.
Robin Ware, a director of JB Ware and Sons Ltd, had also testified that he worked on the land between 1968 and 1999.
He said the first pipe was never there, and the factory would discharge its wastewater into another drain before travelling down Main and Burkes drains to the river at Rangiotū.
He helped lay the second pipe and said it did not require any heavy machinery.
He said there was never any documentation showing consent had been given from the Railways Corporation, and the dairy factory did not ask for permission to dig through their land.
He said the Railways Corporation had no interest in the land and was not present when the pipe was built.
Skelton said his testimony placed doubt on whether or not pipe one existed, and if pipe two was in fact a major infrastructure project.
There was also an existing easement for Seventh Day Adventist, which was cemented in the 1980s.
Skelton said the right of way obtained by the Crown could have been a result of formalising that agreement.
Fonterra argued Ware must have known there was consent or his company would not have laid the pipe. If they did, it was in breach of their lease.
The decision said doubt had been raised on all matters and these could only be determined through cross-examination.
Fonterra was asking it to declare pipe two as a private drain and to bind Longburn Holding Co to the drainage rights it said was granted by the Crown.
It also claimed Longburn Holding Co knew about the pipe when it purchased the land in 2018 and intended to defeat its registered interest.
The application was dismissed and the case was scheduled to go ahead in the judge’s chambers in Palmerston North.