Jailed over wetland that never was
A Kāpiti Coast farmer was unlawfully imprisoned and lost his job – and his partner fined $118,750 – for damaging wetlands that never existed.
Greater Wellington Regional Council forged ahead with prosecuting Adrian Page and Julie Crosbie, despite hearing evidence that threw their scientific methods into question in another court case only weeks earlier.
Now the council has lost both cases, which centred on how it defined wetlands. The botched prosecutions are set to cost ratepayers millions of dollars in compensation payouts.
And the legal fallout is likely to re-ignite the debate over the protection of native flora and fauna on private land, with the Government set to drop “significant natural area” provisions, which limit development and critics say are too heavy-handed.
One lawyer, familiar with but not involved in the case, said the council’s pursuit of Page and Crosbie was “the closest to the UK Post Office scandal as you can get in New Zealand”. There, hundreds were wrongly prosecuted after faulty computer software said money was missing from post office branch accounts.
Last week, the Court of Appeal overturned convictions on 29 of 35 charges relating to Crosbie’s Kāpiti property, because the council could not prove wetlands were present.
The court said it considered there had been a “miscarriage of justice”.
But while the victory is a relief to Page and Crosbie, the couple said their lives were shattered by the episode, which dragged on for almost four years.
Page served six weeks of a three-month sentence in Rimutaka Prison over Christmas 2021.
Police IT worker Crosbie was disciplined for bringing her employer into disrepute and lost out on a promotion and long-service leave. She may yet face a fine of $57,000 relating to the remaining six charges.
She has not returned to the farm where they planned to build their dream home since she suffered a panic attack during the first visit of council enforcement officer James Luty.
The couple said they were vilified by media and the community and abused by neighbours. Page, a builder, lost his job and his tools were stolen from the building site while he was imprisoned. The hit in income has put their plans on hold and they are now living in a tiny home.
Crosbie frequently dissolves into tears when recounting her story. She was traumatised by the hearing and utterly blindsided when Page was sentenced. The couple had no legal representation at trial because they could no longer afford the bills.
She recalls standing in the dock feeling utterly lost as Page was taken away. Behind her, triumphant council staff were “yahooing, high-fiving and cheering”, she said.
“I was alone. The court registrar came over to see if I was all right. I didn’t know where Adrian had been taken and when I called the prison they wouldn’t tell me if he was there.”
Prison rules and paperwork meant it was almost a month before the couple were able to talk on the telephone.
“I don’t like injustice ... even if you keep putting pressure on me, there is a principle involved.”
Adrian Page
Kāpiti Coast farmer
The stress put strain on their six-year relationship. “My trust in Adrian went downhill, because he told me everything was going to be all right. I believed him and then it wasn’t.”
Page said he is thick-skinned and the stress took more of a toll on Crosbie, but at times he felt powerless.
The case repeatedly made headlines, and GWRC put out a press release celebrating the conviction, criticising the couple, and featuring damning photographs of Page’s machinery. It was still live on their website after the ruling this week.
Crosbie said they became local pariahs. The couple want a public apology from the regional council for the way they were treated.
Barrister Stephen Iorns, who took on the case in June 2022, said the couple were labelled environmental terrorists when actually they were “victims of an overzealous regulator who does not understand the rules”.
The ‘forever home’ dream turned nightmare
Crosbie bought the hilly 11ha Nikau Valley plot in 2019, sold on its dramatic views of the coast. Page planned to graze cattle until they could build their “forever” home on the site.
Formerly a farm, and then neglected for 20 years as a neighbouring subdivision was built, the site had become overgrown with scrub and head-height grass. Page began clearing it and making tracks for vehicle access.
The following year, he noticed effluent leaking from a septic tank drainage field serving the subdivision and complained to the regional council.
Luty, the enforcement officer, visited the Anlaby Rd property, but the couple said he quickly became preoccupied with what he believed were wetlands. He told Page to stop work and fence them off.
Enclosing the six areas the council wanted to protect would have cost $50,000 and rendered a large part of their property unusable, Crosbie said. Page knew one of the “wetlands” was in fact an old, man-made stock watering pond.
When they refused, the council issued abatement notices and the Environment Court made interim orders for work to cease. Page ignored them.
In June 2020, 34 charges were laid at Porirua District Court, which included reclaiming areas and draining water from wetlands, allowing livestock to damage wetlands, breaching abatement notices and an interim enforcement order relating to the sewage disposal system Page had originally complained about. (The 35th charge was added in March 2021.)
As the landowner, Crosbie was charged with allowing the offending to occur.
The couple pleaded not guilty and unable to raise money for a lawyer, Page defended them in court, despite exhortations from the judge. He also didn’t call any expert witnesses.
Page admits he is a stubborn and unsympathetic character and was embroiled in (and lost) a decade-long feud with Whanganui District Council over clearing vegetation from his property on the outskirts of the city.
He made legal history by becoming the Environment Court’s first vexatious litigant. After the first meeting with Luty, he said council staff insisted on being accompanied by police when visiting, but Page felt this was over-the-top.
Those previous dealings made him more determined to fight.
“I don’t like injustice. I’m not going to back down to it,” he said. “Even if you keep putting pressure on me, there is a
principle involved.”
Page also suffers from attention deficit hyperactivity disorder (ADHD) and admitted he was prone to arguing. Upon finding them guilty, Judge Brian Dwyer described Page’s attitude as “aggressively defiant of the council and the court” and said the offending was “deliberate, prolonged, and defiant”.
Page appealed the convictions to the High Court but was unsuccessful.
When is a wetland not a wetland?
The couple were introduced to Iorns, who had recently acted for property developer Stuart Adams. Adams had bought subdivided lots in Whiteman’s Valley, which was approved for housing by Upper Hutt City Council.
But the regional council stepped in and ordered work be stopped because it believed there were wetlands on the property that needed protection. The case went to the Environment Court.
The area was farmed for over a century and using expert evidence Iorns argued there were not naturally occurring wetlands, but pasture where rainwater pools and which is exempt from protection under the law.
The hearing took place in early November and adjourned for a verdict, but none of the evidence or arguments gave the council pause in the Page/Crosbie case. Three weeks later, Page was sentenced to imprisonment.
“The cases against the two proceeded on the basis of the scientific assessments of the same employees,” Iorns said.
“In my view, there is simply no world where GWRC were not on notice that their science was shit following the cross-examination of their experts in the Adams case.”
The Environment Court threw out the Adams case because it said council staff failed to prove either the wetlands existed nor were not exempted from protection. It judged their arguments “simply nonsensical”.
In a later decision awarding costs, Dwyer who presided over both cases, said the proceedings initiated by the council were “groundless at the most basic and fundamental level” and the case “totally devoid of merit in the absence of substantive evidence supporting the case it sought to make”.
The regional council had to pay $482,000 to cover the legal costs of those involved. Adams is now suing the council for $20 million for damaging his reputation.
In both cases, Luty was the council’s enforcement officer and the council relied on an assessment by senior environmental monitoring officer Owen Spearpoint. Spearpoint is a horticulturist and not formally qualified as an ecologist.
The same prosecutor, Andrew Britton of Luke Cunningham & Clere, acted for the council in both cases.
Because of the “striking similarities” Iorns agreed to take on Page and Crosbie’s case, despite being warned off by others in the legal community.
“They were not a popular cause,” he said. “I had RMA lawyers contacting me and saying, ‘don’t take that one, don’t touch the guy that’s gone to prison for it’.”
Animal, mineral or vegetation?
The Court of Appeal granted an appeal because Page hadn’t called experts in the original trial and that risked a miscarriage of justice.
Again, the case came down to whether wetlands were occurring naturally – or if these were man-made structures, like the stock pond, or as result of farming.
Spearpoint had used the Clarkson Method to delineate the wetlands, developed in December 2013 and widely used. But it considers only vegetation growing in the area – not animals, soils or hydrology – and the method notes its own limitations for complex cases.
The court criticised the method, pointing out there were “several limitations inherent ... when it comes to proving the existence of a natural wetland to the criminal standard”. But the judgment also observed Spearpoint deviated from the method’s prescribed calculation.
It found the council had not proved the existence of wetlands beyond reasonable doubt.
The court has now asked for submissions on the six convictions not set aside, for which Crosbie could still be fined. They relate to a track subsiding into a stream, sediment entering a waterway and contravening an enforcement order on stock grazing in the drainage field.
The Post put a series of questions to the regional council, including whether Page and Crosbie would receive an apology.
It declined to answer them saying: “as the Page and Crosbie case is still active and discussions with Adams are ongoing, we are limited in what we can say.”
It did offer an “off-the-record briefing”, which The Post refused.
It also asked that “statements questioning the capability of Greater Wellington staff are not made”.
A statement, attributed to Lian Butcher, environment group manager, was provided. It said the council was reviewing the decision.
Staff were using “a nationally recommended method and implementation” by the Ministry for the Environment, under freshwater directions set by the Government in 2020, it said.
Britton now works as counsel at Crown Law. The Government’s lawyer said it was not in a position to answer questions from
The Post and was “unable to respond on his behalf”.