Judge decides agreement to construct Lake Horowhenua drain lawful

Sunday, 19 March 2017

Philip Taueki has lost a legal challenge involving Levin's main stormwater drain that runs into Lake Horowhenua.

A drain that dumps Levin's stormwater into badly polluted Lake Horowhenua was legally agreed upon between the local council and trustees of the lake, a judge has found.

Hokio Trust chairman Philip Taueki has taken various legal actions against Horowhenua District Council and Horizons Regional Council about issues regarding the lake, which is accepted by most to be badly polluted.

In a recent piece of litigation against the district council, Taueki and fifteen others alleged an agreement for the construction of Levin's major stormwater drain was unlawful.

Taueki, the only plaintiff mentioned throughout the judge's comments, has since filed an appeal against the decision.

* Lake Horowhenua compared to being waist deep in a long drop

* Lake Horowhenua toxic enough to kill a child**

The agreement goes back to 1973, when the district council's predecessor the Levin Borough Council signed an agreement with the Lake Horowhenua Trust's trustees to build and use a drain which runs into the lake via land owned by Muaupoko iwi from Queen St, Levin.

In her judgment, Justice Karen Clark said the district council found a copy of the agreement with the trustees' signatures, but not the borough councillors' signatures.

Taueki wanted the court to declare the agreement illegal and as a result, unenforceable.

The judge said the lake was of poor quality for a number of reasons, but the drain had contributed.

Taueki's case was based on four pillars: no signature from the borough council meant it was invalid, there was no thought put into value consideration, the contract was contrary or inconsistent to various laws and the agreement effectively let the council perform a private and public nuisance.

The council disputed all claims.

It managed to show council records and newspaper articles, which all made mention of the agreement being signed by the borough council.

There were also draft version that had been signed by the borough council.

The judge declined Taueki's second pillar of argument, saying the council's agreement to construct the drain, restore the surface above it, and not permit trade waste to go down the drain was an exchange of 'something of value'.

While there were various laws which governed what councils could do with wastewater, none of them impacted the contract, the judge said.

That would be the case even if the agreement allowed for the degradation of destruction of Lake Horowhenua, she said.

Legal procedure meant the judge did not have to deal with the nuisance issues.

'I have found…that the agreement is not invalid, unlawful, unenforceable or of no legal effect.'

Taueki's application was declined, and the district council was entitled to costs.

A date has not yet been set for the appeal to be heard.