WM and Council lawyers: No reason not to consent

Waste Management NZ’s lawyer, Bal Matheson, dismissed most of the appellants’ objections and concerns, stating that many presented low, negligible or even no risk at all.

During his day-long, 90-page closing submissions, he insisted that although fears of the landfill failing and causing environmental damage downstream might be understandable, it would not happen.

“The risk of catastrophic failure of the landfill such that it would decimate the Hoteo Awa and the Kaipara Moana is so remote and negligible that it must be put on one side,” he said.

He said this was because there were no unqualified fault lines within more than 70 kilometres of the site and the engineering of the landfill valley would deal with any sub-surface anomalies that might be found.

“The perceived concern that there will be a reservoir of leachate of 20 million cubic metres or something that will flow down the Hoteo and into the Kaipara – that will not happen. It cannot happen. It’s not a ‘low risk’, it’s not a risk.”

Matheson added there was no chance of “some Fox River scenario”, due to stormwater drains around the landfill being designed to capture rainfall from a one-in-1000 year event and convey it safely around the waste site without coming into contact with it.

“This is not a one-in-100, it’s one-in-1000. It’s not a typo,” he said.

He said technical evidence showed the likelihood of leachate escaping through the landfill liner and contaminating either surface or groundwater was so remote that it could also effectively be put to one side, and extensive site monitoring would all be shown on a digital dashboard accessible by the community and mana whenua.

“It is very important to emphasise this will not be a situation where water is flowing over the waste and down into the Hoteo Awa – that will not occur during operations. And then, in the after-care period, the landfill will be capped and all leachate will be collected until we are satisfied that it doesn’t represent a cultural or ecological risk, and if that takes 40 years, it takes 40 years.”

With regard to the loss of 15km of streams, Matheson said Forest & Bird and DOC should not just focus on the short-term impacts of reclamation, but the long-term positive effects. He said that what could occur on the site, in terms of such things as pest management and planting, was “really exciting”.

“Given that the Wayby wetland south, around which the pest fence will go, was one of Auckland’s largest remaining natural wetlands, the suggestion that doing the pest fence, replanting it in natives and protecting it in perpetuity, is a Gold Class standard of safeguarding the life support and capacity of that ecosystem,” he said. “There simply is no better way to do that.”

Matheson also said that WM was committed to take up to 50,000 tonnes of old waste from old unlined dumps in the Kaipara.

He added that with regard to consulting mana whenua, WM admitted that it could have done things better and it would do things differently if it had a second chance. However, he said that since 2018, when the Overseas Investment Office approved the Wayby land purchase, WM’s consultation with the community and mana whenua had been best practice.

And on the issue of site selection and how it was carried out, Matheson said the law did not require WM to prove that the Wayby Valley site was the best site.

“If there was a better site, it would be reasonably safe to assume they would have found it,” he said.
Auckland Council lawyer Diana Hartley told the court that nowhere in the Unitary Plan was there a policy that there should be no new landfills, and they were not prohibited, just non-complying.

“The applicant is entitled to apply for resource consent and have the application judged on its merits,” she said. “Council is entitled to call evidence and justify consent. This does not somehow result in an abuse of process.”

Hartley also maintained that where the plan stated that adverse effects from new landfills should be avoided, it related only to discharges from new landfills and not anything else.

She said Council did not accept that support for the landfill application was contrary to its Waste Management and Minimisation Policy, since that was an aspirational goal and recognised that landfills would still be needed in the short or mid-term at least.