Council red-tape over child-danger drain angers couple

REBECCA HARPER A Havelock North family say they are frustrated their efforts to fence off a dangerous open drain running through their property have been blocked at every turn.
After three years, Ritchie Boyce and Frances Black are sick of being shunted between the Hastings District Council (HDC) and the Hawke's Bay Regional Council (HBRC) and say they would never have bought the Tanner Street property had they known the drain would cause so much grief.
They want to make their back yard safe for eight-month-old Charlie, who will soon be walking. "All we want to do is make our own property safe for the kids. Every swimming pool has to be fenced off, and to me this drain is just as dangerous," Ms Black said.
Before buying the property the couple spoke to the HDC, offering to foot the bill for piping the drain, and were told that would not be a problem. They spent thousands of dollars on engineers' reports, which concluded piping would not cause a flooding risk, so they bought the property.
However, when a neighbour refused consent, they were forced to consider other options. The HDC advised them that without resource consent they could build a small retaining wall 1m from the boundary and under 1.5m high, or erect a fence not more than 2m high.
When Mr Boyce started building a retaining wall the neighbour objected again, this time involving the HBRC. The neighbour was concerned the wall would push water onto his property if there was a flood.
The couple paid $675 to the HBRC in July 2006 to get consent for the retaining wall. Consent was denied because of the neighbour's objections. They were asked to pay more money to the council for limited notification, and told if the neighbour objected again, they would have to spend up to $6000 on a hearing consent.
It was at this point the couple decided to take matters into their own hands.
"It's so frustrating. It's our property, surely we should be able to do something. I tried to explore other options, such as trellis with net fencing so the water could still go through, but they said it would still restrict the water flow," Ms Black said.
About two weeks ago Mr Boyce put up a "temporary" fence to make the property safe, just until something more permanent could be arranged.
On June 7, the couple received an abatement notice from the HBRC. It said the fence was "likely to increase the flooding risk" and ordered them to remove the fence and cease construction by June 25, or face a daily fine of $750. The couple said ultimately they would like to see someone take responsibility for the drain and have it piped, especially considering it was piped further upstream. HDC environmental manager Ian MacDonald said the drain was an existing "water course" which happened to run through private land, which meant the land owner was actually responsible for it.
"We wouldn't say no to a fence, but the regional council deals with effects in terms of natural hazards, like flooding," he said.
It was the nature of the Resource Management Act (RMA) that it was a public process and their neighbour had a right to be involved.
"They have to go through the process, same as everyone else. It sounds like they were involved in a process and it was their choice to pull out," Mr MacDonald said.
HBRC consents officer Charlotte Nicholson said the council had sent an engineer to review the couple's plans to construct the retaining wall.
The engineer determined the wall would increase the water level by 150 to 200ml.
Under the RMA the effect was not regarded as de minimis. That meant it was not a "minute level of effect that is barely discernable over ordinary day-to-day effects" and approval was needed from affected parties before construction could go ahead.
"We completely understand their reasons for putting up the fence, but we have functions to look after waterways and we need to have some degree of control over structures going into waterways," Miss Nicholson said.
There were two options available to the couple. They could either seek affected party approval, or go ahead with limited notification. Under limited notification affected parties could make submissions on the application. They chose affected party approval because they wanted to avoid the cost of a hearing, but at the same time the ratepayer can't be expected to bear the cost of a hearing.
Unfortunately they are yet to get affected party approval," she said.