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DAY 3 RESUMES ON WEDNESDAY 1 FEBRUARY 2017 AT 9.05 AM

JUSTICE STEVENS:Mr Gedye, before we start, there’s a matter I’d like to raise with all counsel

relating to this report of the Science Caucus and I am referring to the report

that was received on 27th of January, the three page report and it sets out

additional findings on pages 2 and 3. And it talks in the second of those about

“the occurrence of a hydraulic connection between the land surface and bore

1 via the pump chamber/casing annulus” and it says “is possible.” Then it

refers to a preliminary analysis of dye tracer tests. That report was published

two days before the report of RDCL which is dated the 29 th of January and

from a Mr Tom Grace and Cam Wiley. Have all counsel received copies of

that document? Ms Arapere?

MS ARAPERENo Sir, we haven’t received a copy.

JUSTICE STEVENS:Ms Chen?

MS CHEN:Sir, I received it on Sunday.

JUSTICE STEVENS:The answer is yes.

MS CHEN:Yes, it is.

JUSTICE STEVENS:Mr Casey?

MR CASEY:

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Yes Sir, and I’ve also got spare copies if other counsel need them.

JUSTICE STEVENS:Mr Gedye?

MR GEDYE:Yes, I – well, I’ve only just really got it this morning Sir, yes.

MS RIDDER:No Sir.

JUSTICE STEVENS:Very good, well, make sure you have got a copy.

MS CARTER:No Sir.

JUSTICE STEVENS:It doesn’t, I don’t think, affect your client, Ms Carter. Ms Holderness, do you?

MS HOLDERNESS:No, we haven’t received it Sir.

JUSTICE STEVENS:Very good. And my question is there is some very important conclusions in

that report on – in particular on page 2 and it really follows comprehensive

scientific testing including gamma testing. Second bullet point, “There is no

evidence of perforation (hole) in the casing or significant void behind the

casing wall.” And my question is, I’d be grateful – or the Panel would be

grateful – if the Science Caucus could consider that report and, if necessary,

talk with Mr Grace and/or Mr Wiley and advise whether the findings in that

report in any way alter the conclusions in the document dated the

27th of January by the Science Caucus. And I would like these steps taken

out promptly because if the conclusions are accepted and if changes are

GOVERNMENT INQUIRY INTO HAVELOCK NORTH DRINKING WATER

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made to the conclusions of the Science Caucus, then it may well be that we

can dispense with some witnesses, for example Mr Baylis, because the Panel

is entirely well-qualified to make assessments of bore conditions, that’s why

we have an expert in Mr Wilson and we are short of time, we have to be

selective about what witnesses we call and, after all, it is an inquiry under the

Inquiries Act, we have duties to be efficient and avoid delays and avoid

complexity, so it may be that we can save a lot of time and a lot of witnesses

if, if the conclusions of the Science Caucus are before us in final form having

taken into account all relevant material. Mr Gedye, do you have any

comments?

LEGAL DISCUSSION (09:10:30)

DARRYL LEWWITNESS ON FORMER OATH

CROSS-EXAMINATION CONTINUES: MR GEDYEQ. This regard to Reg 7 of the NES regulations we’ve established that this

only applies to occasions when the Regional Council is looking to grant

a water permit or a discharge permit, right?

A. Correct.

Q. Would you accept that there are other types of activities which require

consent that could create risks to drinking water?

A. In hindsight and given the evidence of the last two days absolutely.

Q. Would you accept one such activity might be the carrying out of

earthworks near a bore?

A. Yes absolutely and what I would add to that is under the New Zealand

legal framework under the RMA and both Regional Plans and District

Plans this is a vexed area and has been a vexed area in practice for a

long time because it is highly normal that both, a consent may be

required to a Regional Council, a consent for earthworks may be

required of District Council or indeed both for exactly the same activity

and, but for different reasons and I do know that this has been very


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problematic in practice for the respective consent authorities, let alone

applicants, to navigate through but I do agree with what you say there.

Q. Well, we see that problem here, don’t we, with –

A. Yes, we do.

Q. – the Regional Council requiring a consent from Te Mata Mushrooms

and the District Council requiring as consent. That’s happened hasn’t

it?

A. Yes, but I’m not sure whether it was for the same activity. You would

have to –

Q. Yes, that may be right.

A. – direct that – yes.

Q. We'll try and avoid rewriting the RMA Act as part of this process. I think

that’s an incidental issue. Is another such activity drilling?

A. Yes.

Q. Possibly storing or manufacturing compost?

A. No, because under the RMA, that would be captured by a discharge

consent, if there was a discharge, and just in relation to the drilling one

you raised, obviously there's drilling for wells obviously.

Q. Yes.

A. But there is drilling for other types of reasons as well, including

foundation investigations, yeah, technical investigations also which is

not in the purview of a Regional Council.

MR WILSON:Q. But, Mr Lew, a compost operation might require a land use consent

under a District Plan as an industrial activity?

A. Under a District Plan, yes. Yes, I was more meaning, Sir, in relation to a

Regional Council, yes.

CROSS-EXAMINATION CONTINUES: MR GEDYEQ. In any event, you agree with my point that Reg 7 is quite limited and

defined and doesn’t capture a range of activities that could affect

drinking water in the vicinity of an abstraction point?

A. I agree that Reg 7 is far too narrow.


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Q. By contrast, would you agree with me that Reg 12, far broader, Reg 12

being the regulation that requires what's been described as an

emergency notification? Do you agree that Reg 12 applies to all

consent authorities, including District Councils and Regional Councils?

It should be still there in the box available to you if you want to have a

look at it but –

A. Yeah, that would help.

Q. Mr Lew, I'm not asking you to comment on legal interpretation but is it

your understanding that Reg 12 is unrestricted in terms of who it applies

to?

A. Yes, I do and the reason for the little bit of hesitancy is I was just trying

to scan my memory banks whether I ever had to use it and the answer

was no, so I've never had to engage it to, you know, in a practical way

but on the face of 12, yes, I would agree with that.

Q. And also Reg 12 applies to any activity which may lead to a

deterioration in the water, put broadly. So it's cast more broadly as well.

A. Yes, and what I would say to make sure that that’s well embedded in the

respective authorities, I think that’s where the user guide and further

explanatory notes is very important, let alone any rollout of the user

guide and training of the sector, which is very normal when a user guide

is launched and to that end, I just would really want to comment that

having a user guide still in draft almost 10 years after the regulation has

been promulgated is not helpful.

Q. No. We are told that the NES Regs are under review this year.

A. Okay.

Q. And we may hope that a draft may become final. I'll come back to

Reg 12 but at the level of Reg 7, which is the primary part of the

regulations, do you agree that there's activities which could affect

drinking water which don’t require consents and are therefore entirely

outside the ambit of the regulations and as an example I've put the

grazing of livestock.

A. Yes, I do but I would point out that there is other parts of the NES that

direct an investigation around those sorts of things and then if that’s

found that they're permitted activities and don’t require consent, but they


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could have affects on the public water supply, then that would be a

matter at the earliest, I think the wording is at the earliest opportunity, for

a plan change to consider that matter.

Q. And I will come back to Reg 10 soon.

A. Yes.

Q. Can I ask you go look at document 92 which is in folder 4. Do you see

that that is a Hawke's Bay Regional Council resource consent discharge

permit?

A. Yes.

Q. And that is granted to Te Mata Mushroom Company on the

24th of July 2013.

A. Yes.

Q. You see that it relates to the discharge of waste water from a mushroom

composting operation onto land.

A. Yes.

Q. I'm not sure how easy it is to find because it might be in the same tab,

but there should be a 92A as well, which is another discharge permit

granted by the Regional Council on the same date 24 July ’13.

A. Yes.

Q. To Te Mata Mushroom Company, this time to discharge farm dairy

effluent from a herd of up to 80 cows and from the operation of a dairy

shed. Now this is two years after you left the Regional Council, right,

but would you accept that on the face of it, these are two permits which

would engage – which would potentially engage Reg 7 because they

are discharge permits?

A. Yes, I would accept that.

Q. If you look back at document 91, you should see there the

Regional Council’s assume of the resource consent applications – or in

fact, I think it just relates to the farm dairy effluent one.

A. Oh, yes, the officer’s report, yes.

THE COURT ADDRESSES MR GEDYE (09:22:14) – WHICH PAGE


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CROSS-EXAMINATION CONTINUES: MR GEDYEQ. Just coming to that Sir, it should – I think it's page 11 and page 16.

Well, let's just go to page 16. This report comes to item 7 “statutory

considerations” and it recites the National Environment Standards and

the regulations there.

A. As it should do.

Q. Yes, so by 2013 the Regional Council is certainly operating the NES

regs. Are you – and then you see three paragraphs simply reciting a

summary of what the regs say and then it, it covers the assessment

which notes that the nearest drinking water sources were between

260 and 420 metres away from the proposed waste water discharge. It

says, “The wells are all confined and relatively deep. The drains flow

into the Mangateretere Stream which is near to the wells. It's a known

that the wells affect stream flow, so some degree of hydraulic

connection; however, that connection appears to be the groundwater

takes – take lessens the spring discharge.” Over the page it says,

“Nonetheless, in order to take a precautionary approach it is

recommended that the emergency conditions be imposed to the

consents” – so it jumps to Reg 12 at this point – and it says, “The

proposal does not have the potential to affect registered drinking water

supplies,” and so-on, “Because it is relatively far away.” Mr Lew, you

could take a view of that that the assessment is very brief and very

shallow in the sense that it really just says, “It's far enough away not to

affect it, therefore Reg 7 doesn’t need to be engaged.” Would you

accept that that was a pretty cursory assessment of whether the

discharge of these composting and dairy effluent products might affect

the drinking water?

A. There is, there is two comments I’d make. Firstly, in relation to that, that

question you pose, yes, I, I probably would have accepted to see a good

deal more of scientific evidential basis to support that conclusion. I don’t

know whether that was actually done and that’s just a, a, a concluding

statement based on that scientific evidence, but perhaps you could

direct that question to, to further witnesses for the Council –

Q. Yes.


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A. – but the second comment that I’d make is that I, I wouldn’t support the,

the, the commentary here that the wells are confined and deep and, and

that, that is not actually what's written in previous documentation held by

the Regional Council.

Q. So I'm right aren't I, when the council considered these discharge

applications they had the power, the right to call for expert reports from

the applicant on the Reg 7 issues?

A. Correct.

Q. That would be an expedient thing for the Regional Council to do

wouldn't it?

A. It would be a usual thing to do but look they may have done that but

that’s not in these papers here.

Q. Yes and we can find that out but I've not seen the evidence of it. So if

you assume they didn’t would you accept that it would have been

desirable that they had done that?

A. I would think it's mandatory.

Q. Yes it's quite a technical and complicated assessment that needs to be

made under Reg 7 isn't it?

A. Yes it is but no different to any other discharge consent so look it, you

know, these are technical matters but councils have access to scientific

in-house staff let alone consultants in NIWA and other Crown research

agencies let alone private consultancies that do this for a living and

there is well established methodologies to investigate these sorts of

matters.

Q. Well if you are somewhat point scoring you would say, if they thought

that Reg 12 wasn't engaged that in itself tells you that there could be

some issue under Reg 7?

A. Yes.

Q. The fact that you need an emergency notification is an

acknowledgement that it may affect the drinking water isn't it?

A. Yes but what I was just going to say earlier and I’ll say it now is that

environmental science is a very difficult area of practice, you know,

often one plus one doesn’t equal two and we’ve heard a lot of evidence

around, you know, the lack of linear relationships between rainfall and


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events from Mr Stuijt and things like that. So, you know, the whole

notion of the precautionary approach, you know, is very much prevalent

given the vagaries of environmental science and the way – particularly

bacteriological species behave in the environment and particularly in

groundwater in terms of their life cycles et cetera.

Q. Well leaving aside the question of an expert’s report isn't this a situation

where the Regional Council should have got in touch with the District

Council and invited input from it as the water supplier?

A. They would have had to have been legally, they would have had to have

been satisfied that the effects of the application were less than minor

and if they were satisfied that that was the case then there is no

jurisdiction to limited notify or notify an affected party. That may not

preclude them from taking advice and here I draw you back to

section 2.5 of the draft Users’ Guide which suggests that and I use this

term “proactive arrangements” ahead of any resource consent

applications should be in place between the relevant parties to allow

these sorts of matters to be considered.

Q. Exactly and doesn’t that mean picking up the phone or coming out to

have a visit or a meeting with the District Council to discuss the matter?

A. Yes it does but I’ll reemphasise, if the concluding, if the position of the

consent authority was that the affects were less than minor there is no

obligation. In fact the applicant could quite rightly be legally upset if they

chose to involve another party and effectively open it up in that manner.

So this is perhaps some of the difficulties in RMA law in relation to the

National Environmental Standard and indeed the aspiration of the

Users’ Guide. The RMA is very fraught with legalities and appeals and

challenges and things here.

JUSTICE STEVENS:Q. But your comment about forming a preliminary view of the effects being

less than minor is so then it doesn’t say much about protecting the

sources of drinking water does it?


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A. Sir that would turn on the scientific assessment really which I would

acknowledge perhaps isn't covered in sufficient detail to support that

assessment here.

Q. And also, it might say something about the methodology in which,

assuming the pathway that you have postulated were adopted, would

mean that the party most affected, namely the drinking water supply,

never got to be heard.

A. Yes, on the face of it, and without traversing the whole file, that would

seem the case but I –

Q. Where the activity is a few hundred metres away from a bore?

A. Yes.

Q. It just does not make sense does it?

A. Yes. Yes, but, look, I wouldn't like to misrepresent this issue because I

haven't –

Q. No, no.

A. – been across it but –

Q. We are just exploring it with you –

A. Yes.

Q. – and helpfully and –

A. But on the face of it, I would agree, Sir, yes.

CROSS-EXAMINATION CONTINUES: MR GEDYEQ. Aren't there two types of input you could get from the District Council,

the first being purely informational? Is your bore artesian? Where is the

bore head? What is the zone of influence? How often does the pump

run? How strong is the suction from the pump? What's the state of the

casing? Have you had any other breaches? Is the aquitard there? And

so on and so forth. A whole raft of matters which would help you

understand under Reg 7 whether it's likely to affect it. So you could

range between a, you know, massively bulletproof bore to one that’s got

all sorts of problems and you'd need to know that wouldn't you?

A. Yes, that would be helpful.

Q. That’s informational. The second form of input might be a chance to be

heard and to object or to request conditions, which, would you accept, is


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more problematic because it involves rights and interference with the

process, if you like?


Q. So in terms of purely informational, there's no reason why an expert

couldn't go and get that or the Council itself is there, under the RMA

scheme?

A. No, there would be nothing precluding that, yes.

Q. At the very least you'd want to seek facts wouldn't you?

A. Yes.

Q. And it may be something that the Inquiry has to wrestle with in terms of

more substantive intervention or rights to be heard?

A. Yes, Sir, on this matter, His Honour overnight gave me some

homework, so –

Q. Like to hand that in?

A. At the appropriate time. I could comment on this because it has

relevance.

Q. Well, I'm happy if you want to now, if His Honour’s happy and the Panel

is happy.

JUSTICE STEVENS:Q. By all means. No, thank you so much. I hope it did not keep you up

late?

A. No, just early, Sir.

Q. Good.

A. So, Your Honour, you asked me to look at 2.5.

Q. Yes.

A. Of the Users’ Guide. So what I – my analysis of what 2.5 suggests,

because it's not legally obliging on the parties, it's guidance not more, is

that it asks the relevant agencies, the three main ones, to, and I use the

term proactively, get together and form a committee or some sort of

liaison group well ahead of any consent application, let alone plan

change, and discuss how they might co-operate in relation to any

consent application and make the sorts of matters, Sir, that you raised

with me just now, known to each other so that they can be efficient and


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effective in considering any third party discharge consents or water

permit consents, particularly given the quite tight statutory timeframes

around RMA matters to make sure that everything is in order and can be

processed efficiently and effectively and the input can be gained. The

first thing that I'd note there and, look, you know, this quite rightly, given

the very regrettable events of, you know, of Havelock North, you know,

we're considering in much detail, you know, the Brookvale situation here

but I just draw the Panel’s attention to the fact that for example I've been

told this morning in Canterbury there are over 450 water supplies and

around New Zealand, I'm picking there is probably, you know, 1000 of

these things.

MR WILSON:Q. 2000.

A. 2000. Thank you, Sir.

CROSS-EXAMINATION CONTINUES: MR GEDYE A. So, what 2.5 is asking is I would support, but given, given the numbers

we’re talking about here and the fact that so one Regional Council’s

gotta potentially have 450 conversations, you know, around each water

supply, there needs to be appropriate systems, processes, databases

and tools to support this type of approach that’s contained in 2.5.

Otherwise, it’ll be some talks with some minutes which probably doesn’t

really cut to where, you know, it needs to be, particularly given what

we’ve now known about Havelock North. So that would be the first

issue that I’d observe there.

JUSTICE STEVENS:Q. Could I just – and you may be coming to this – but in addition to those

resources, processes and tools, but also there would need to be a

mindset of willingness to co-operate and partner, wouldn't there?

A. Yes, so that, that would bring me to my second comment and look, I,

I’ve been out of the industry now for some years and if it hasn’t

happened – no, I’m picking it hasn’t happened because the Users’


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Guide is draft, but usually what would happen is – and, and I’d make the

suggestion – is that substantial leadership by the Ministry of Health and

the Ministry for the Environment is taken in a series of training and road

shows and, as you say, in an effort to, to, to get the mindsets right of the

different agencies around this should be taken. The next comment that

I’d make around 2.5 is, as I said, it's all about consenting, really, and,

and that’s quite right because as I said in my evidence yesterday, the

NES is really about third party consent applications, let alone plan

changes. I think there’s a gap in 2.5 and in the material that’s supports

the NES and the NES itself and I think this gap has become quite

apparent in the last two days of evidence and the, the gap that I’d

observe or I’ll put a label on it, it's information and data-sharing. So

what I would observe is that the Water Supply Authority collects it's data

for its water supply purpose and keeps that to itself and hasn’t seen fit

or doesn’t see a role for the Regional Council typically, as we’ve heard,

in, in, in that data collection. But by the same token, the Regional

Council in carrying out its duties under section 35 and duty to monitor

the state of environment is very focused on its long-term sustainability of

aquifers and doesn’t think about water supply. And as the last two days

of evidence has been very apparent, I think that’s problematic.

Q. Well, that's another example of silo thinking, isn’t it?

A. Yes, although –

Q. Or silo behaviour?

A. Yes, it is. But, but look, many of these agencies are creatures of statute

Sir and, you know, if there’s no direct driver for them to behave or, or act

in, in some sort of way, you know, there day-to-day work is so busy that

they, they, they don’t see perhaps the linkages unless it is codified for

them. So what I would now like to draw the, the, the Panel’s attention to

is this area has been traversed before in some way and I’ll, I’ll take you

back to the 1990s and just by way of context, so what was happening

was the Regional Councils would under their State Environment

Monitoring would go and look at beaches and, and measure water

quality at beaches and because it's State Environment Monitoring,

maybe three months later the data would come through from the lab and


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what they would see is that there was thousands of faecal coliforms or

enterococci readings or E.coli readings and the beach was totally unfit

for contact recreation, but that was months down after the track. So

what then happened was – and, and Mr Wilson may be aware of this in

his position – there was a set of guidelines that was published in the

1990s and then subsequently upgraded through the 2000s called the

“Recreational Water Quality Bathing Guidelines for Marine and

Freshwater” and what this basically has done is it's bridged the gap, in

that case, between the State of Environment Monitoring which is not

operational public health monitoring by the Regional Council and

bridging the gap between what they were doing and the public health

aspect of bathing waters. And what that – and what this Guideline does

is it, is it codifies in a guideline the sampling protocols, the sampling

framework, the field methods, the test methods in terms of laboratory

but more importantly the turnaround times being very, very quick to

allow operational public health decisions and basically making sure that

the Regional Council understood that it's an information provider in an

operational sense and then that data gets passed over in a very, very

timely manner to the public health unit who, in effect, take the public

health steps to close beaches. Now I'm not saying that you can just cut

and paste that into this situation but it seems to me that we have a, in

that situation we had a bridge between the Regional Council functions

and the public health functions of marine and freshwater bathing and to

me perhaps an industry working group could be set up to investigate

and look at a similar type of approach in this situation particularly around

groundwater supplies.

Q. Slightly more complicated in the present case because there's not just

the Regional Council and the health authorities, there's also the water

suppliers?

A. Agreed.

Q. And they are inevitably going to hold important information and data that

requires to be shared, not just with the health authorities but also with

the Regional Council and vice versa, so it's going to require a real mind

shift isn't it?


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A. Yes it is and I, in offering this example I absolutely acknowledge that it's

the three entities that need to share and what I was really trying to

search for or identify a gap in 2.5 and it's in that information sharing

space and it's not just about consenting.

Q. Which is the very point that Mr Gedye was exploring with you?

A. Correct.

Q. In the tangible example of Te Mata Mushrooms?

A. Yes. So look I hope that is helpful Sir.

Q. Thank you very much indeed. Do you want to just, while you’re dealing

with homework did you find any authorities or have you come across

any cases, that was the other question that I asked?

A. Yes, so Sir I have been informed, I don’t have direct access to Brooker

myself personally anymore, but I've been informed that no cases were

found that were bought to the Environment Court let alone obviously

higher Courts but perhaps some of the other counsel might like to just

confirm that.

Q. That is consistent with the advice that we have been receiving so the

reason I put that question to you was because of your practice in the

area and making sure that we left no stone unturned?

A. Thank you Sir.

CROSS-EXAMINATION CONTINUES: MR GEDYE Q. Mr Lew before we return to what I was talking about I wonder if we could

just look at CB60, just picks up on what we were discussing, I'd just like

to ask you something?

A. Yes.

Q. This document is a Regional Council technical report on groundwater

quality in the Hawke's Bay Region?

A. Yes.

Q. It's produced in May 2010?

A. Yes.

Q. So this is, am I right this is part of the SOE programme to produce

reports like this?

A. Correct, yes.


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Q. And this assesses two things, nitrogen and E. Coli and this really just

having a quick skim of this do we see under the executive summary that

this SOE survey looked at the counts of E. coli in groundwater in some

145 wells?

A. Yes.

Q. And at 2.4 it was interesting I think to see that this report does

specifically refer to the Drinking Water Standards and what they were

for E. coli and various MAVs for chemicals and at 4.1 under a heading,

“2008 Survey Results,” it says in the second paragraph, “Generally the

results indicate the water in most of the sampled wells meets the DWNZ

standards.” And at page 12, there's a general review of E. coli under

the graph there and it discusses the phenomenon of surface

contamination and the fact that at the depth they are likely to be caused

by water leaking down the side casing and I wanted to draw your

attention to that as it's slightly curious nod for DWSNZ in the context of

an SOE report. When you were at the Council, which included May

2010.

A. Yes.

Q. What cognisance of the Drinking Water Standards or drinking water

issues did the SOE monitoring programme have? It's certainly referred

to several times here and I wondered why that was and what the SOE

monitors thought about drinking water.

A. So the first thing I'd say is it's very normal right across the country for

Regional Councils to use the levels stated in the Drinking Water

Standards, let alone in terms of recreational bathing standards for

contact recreation and any other standards to compare the state of

environment data to and in fact all regional plans formulated under the

RMA, regional policy statements and regional plans, will have directives

like maintain and enhance water quality and aquifers, you know, protect

drinking water, all those sorts of things. So it's very normal but, look,

what's very apparent is the gap, if I come back to the gap, is the

operational, how that operationally feeds into the workings of a,

day-to-day workings of a water supply is absent.


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Q. If an SOE monitoring review found high levels of E. coli in one of the

bores, I'm not trying to be tricky because we know that happened in the

test bore here.

A. Yes.

Q. But just generally, if you found high levels, would you contact the

District Council and say, “We've found high levels. We need to talk,” or

would it just remain un-communicated to the water supplier?

A. I think there's probably a bit of mixed practice around the country there.

I can't recall what happened at HBRC in that case but what I would say

in a more general way is that right around New Zealand and in

Hawkes Bay, shallow groundwaters of the type that we're dealing with

here in relation to Brookvale, it's more common than not for SOE

sampling to pick up some bacteriological contamination and it wouldn't

be any surprise. It's only in those very, very deep, with very thick

confining layers and probably artesian heads where you’ve got utmost

secure supplies, which I now understand what the meaning of secure is

in terms of drinking water. Right around the country, shallow aquifers of

this sort are routinely got bacteriological contamination in them and it

might be there one day and might be gone the next day but routinely

they carry levels of bacteriological contamination. That under a

long-term SOE point of view could still be considered sustainable but

certainly for a drinking water, that has quite significant implications.

Q. Hence the need to liaise?

A. Yes.

Q. Are these groundwater reports publically available?

A. Yeah, so I think I said yesterday is that I instituted a significant

programme, which I understand continues today, of state of

environment monitoring data being up on the web and accessible as

soon as it comes in from the lab, quarterly annual and five-yearly state

of environment reports, which I do know get circulated to the

District Councils and others, yes.

JUSTICE STEVENS:Q. I see that on page 2, that you approved this report.


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A. Thank you, Sir, yes.

Q. Have you got it there?

A. Yes, I have in front of me, yes.

Q. And it was reviewed by the next witness, Dougal Gordon.

A. Yes.

Q. So did you or one of your colleagues discuss whether a copy should be

sent to the District Council as the water supplier?

A. I can't –

Q. The findings in any way communicated to the District Council?

A. To be honest, Sir, I can't recall.

Q. It would have been quite a good idea would it not?

A. Yes, yes, yes.

Q. In retrospect?

A. Yes, in retrospect and yeah, I've got some memory of some

conversations and I think, yeah, one of the conversations I recall but,

look, I can't remember where it landed but, look, obviously this is, we're

talking about municipal water supplies here.

Q. And this is right in the gap is it not?

A. That’s right, but the other thing that I'd raise with you, Sir, is that there

are many, many rural properties right across the Hawkes Bay, let alone

New Zealand, that rely on groundwater for their personal drinking water

and while we're obviously the focus of this inquiry is the Hastings

municipal water supply for Havelock North, there is equally, you know,

risks here for individual households and perhaps there's a gap in that

space too, Sir.

Q. And of course if there is to be information sharing, then who is to receive

it and what do they do with it becomes quite important too?

A. Yes. Well, obviously with the municipal water supplies, the

Water Supply Authority is very key for receiving this information but

obviously the public health unit for municipal water supplies, given that

they're a regulator of it, but can I also say, Sir, that in terms of the wider

household drinking water situation, the public health units around the

country may need to assume a more proactive set of activities if this

information flow is improved.


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Q. And in the Havelock North context, that is quite important possibly

because having relevant information such as this, such as the fact that

E. coli was being found down the test bore –

A. Yes.

Q. – on a consistent basis, might be relevant to public attitudes to how their

water is dealt with and how they are protected.

A. Yes, Sir, after many years of operating in Regional Councils, I fully

understand that the scientific data amongst qualified practitioners is one

thing but an entirely another and important issue is the information

dissemination and bring the public with you on those matters so that

they actually understand what's going on.

Q. And understand why –

A. Yes.

Q. – if that is the course that is proposed, treatment of –

A. Yes.

Q. – one or more types is necessary?

A. Yes, yes, and, you know, scientific evidence bases to support policy

development and operational decisions is very important to be able to

communicate that well, Sir, yes, I accept that.

CROSS-EXAMINATION CONTINUES: MR GEDYEQ. Just coming back to the regulations and examples of how they may

have operated near Brookvale Road, could you look at document 85 in

volume 4 please. I want to ask you about an exploratory drilling which

Hastings District Council carried out only about 50 metres away from

bore 3 in Brookvale Road.

A. Yes.

Q. On the face of it, if you drilled an exploratory bore to 150 metres deep,

50 metres away from the drinking water supply bore, you would think

that would be an activity that could affect the drinking water. Would you

agree?

Q. Simply because of its proximity and the invasion of the aquifer?

A. No I am not sure that I do agree. Would you be able to elaborate

please?


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Q. Well if you are looking at the potential to adversely affect drinking water,

I am not talking about the words in the regs, I am just saying generally, if

someone wants to come and drill 150 metres into the aquifer, only 50

metres away from a drinking water bore, you would want to enquire

whether it would affect the drinking water, wouldn’t you?

A. Yes I must confess this is where I have a little difficulty because, to my

knowledge, but please there are people more qualified in this that I

understand will follow giving evidence, you know, groundwater experts.

But the mere drilling of a bore and inserting of a casing, I don’t think

raises risks from a water quality perspective to a downstream water

supply.

Q. Well let’s not go too far into the technicalities of it. My proposition was

simply that you are opening up a hole deep into the aquifer, very close

to a drinking water supply. That is all I was basing my proposition on.

A. The activity of drilling the well and inserting the casing, I don’t think

poses a risk but what potentially could pose a risk is if that well did not

have appropriate bore head security protection on top of it, post its

drilling which will enable a conduit for contaminants to go down into that

well and then subsequently affect the drinking water supply downstream

and to that end I am aware that for instance, other councils upstream of

drinking water supplies have well head protection zones where it is

imperative, well no, it is enforced that well head security is proactively

enforced and compliance inspections and the special regulations for that

and to that end I would refer you to a future witness, Mr Brydon Hughes

on that because I think that sir, is very helpful.

Q. Well just looking at what happened here with this exploratory bore in

May 2015. Document 85 is a notification of decision and under that is

the resource consent. On page 2 of the consent, condition 1 is that the

bore shall be cased and sealed to prevent aquifer cross-connection and

leakage from the ground surface into groundwater.

A. Yes.

Q. Now Reg 7 is not engaged here is it because this is not a water or

discharge permit?

A. Correct.


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Q. But nevertheless the Regional Council has put a requirement in place

which is simply based on protecting the aquifer from ingress?

A. Yes.

Q. If you look at document 87 we see that District Council then applied to

take water out of that exploratory bore and a further consent was

required, this time it is a water permit, isn’t it?

A. Correct, to take water, yes.

Q. So Reg 7 is engaged?

A. Yes.

Q. 87 is Hawke’s Bay Regional Council’s application form and we don’t

need to look too much at this but the point I would like to ask you about

there is it appears there is nothing in the application form addressing

Regulation 7 concerns. When you were dealing with application forms

for water takes, was there any provision in that form to address Reg 7

concerns?

A. No there wasn’t but look in hindsight, and as a helpful decision, I would

recommend that a specific new application form be drafted for any water

permits or discharge permits upstream of a water supply that has a

specific requirement to submit information in relation to the NES. I think

that would be very helpful for applicants and indeed be a good memory

jog for the consent authority, consent officers.

Q. Indeed because Regional Councils need to have systems in place to

make sure that they address the NES Regs every time they are

potentially engaged, don’t they?

A. Yes, they do, yes.

Q. I might ask other witnesses about today’s systems, but in your day, ’07

to 2011, was there a system where you had to say, “Right, now we must

look at the NES Regs.

A. I think, in terms of a, a specific application form, the answer is no. But

what I would say is that because the NES was so fresh and just been

promulgated it was fairly top of mind at that point in time in terms of

consideration and – but to my knowledge between 2008-2011 when I

left we, we – it was not triggered, but it was so top of mind being a fresh

NES that we were generally onto those matters.


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Q. And if we look at document 88, Mr Lew, that is

Hawke's Bay Regional Council’s notification of decision. And at – under

that is the consent which did grant consent take and use water from the

exploratory well.

A. Yes.

Q. And condition 5 had that same standard form wording, “All works and

structures must be maintained to a safe and serviceable standard,”

that’s your standard wordings living on.

A. Yes.

Q. But apart from that, I see in this consent to take water no reference to

the NES Regs. Do you, do you think that there should have been any

reference in either the assessment document which I don’t have or this

decision?

A. Yes.

Q. To the NES regulations?

A. Yes, for, for completeness, yes and, and really it's – to my mind, it's

really just around the – perhaps a paragraph just saying that the reason

for needing the well head protection and secure well heads is because

of the NES.

Q. We may not have complete information, but on the face of it, it appears

that no one looked at the NES Regs for this resource consent, but would

you accept that if they didn't they should have?

A. On, on the face of it, yes.

Q. And nor is there any reference to a Reg 12 emergency notification. Do

you think that is something that should have been looked at here as

well?

A. Yeah, maybe, I –

Q. I just say “looked at,” not necessarily implemented?

A. Okay, yeah, I, I would accept “looked at,” yes. I, I would note that this is

a bit of a, this is a bit of a curious situation 'cos this is, is an application

from the Water Supply Authority itself and you would have thought that

their –

Q. Yes, but the regs should apply to everyone in all circumstances,

shouldn't they?


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A. Yes, I, I would accept that.

Q. If they’re engaged?


Q. Can I ask you about Regulation 10, we’ve mentioned this before. This

is the regulation which says that, “A Regional Council must not include a

Rule or amend a Rule in its Regional Plan to allow a permitted activity

under sections,” so-forth, “upstream of an abstraction point where the

drinking water concerned meets the health quality criteria unless

satisfied the activity is not likely to introduce or increase the

concentration of any determinands,” and so-on.

A. Yes.

Q. Now, am I right that Regulation 10 only applies to permitted activities. Is

grazing sheep a permitted activity?

A. In Hawke's Bay, yes and in most Regional Councils, yes. In fact, all that

I know, yes.

Q. Forgive me for my fairly rudimentary knowledge of how this works, but if

it’s not permitted, you need a consent and Reg 7 will either engage or

not, but if it is permitted, then the Regional Council must consider

whether it will affect the drinking water?

A. Correct.

Q. Regulation 14 says, very crudely, “That the Council doesn’t have to

action Reg 10 until either there’s a scheduled review of the Plan or a

plan change,” right?

A. Correct.

Q. So this would potentially give Regional Councils a long time to address

Reg 10 after 20 June ’08?

A. Yes it would.

Q. During your time at the Regional Council was there a Regulation 10, did

the Regional Council trigger either of those timing points, namely an

amendment to the Regional Plan or a scheduled review of the plan?

A. So the answer is partially yes, I don’t think that the Regional Council

could ever produce a document that says “due to section 10 of the NES

we’re embarking on a plan change” but for a whole variety of reasons

the scientific work was beginning to embark on a plan change for the


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Ruataniwha with the Heretaunga to be second. What I would note and

agree with you though sir is that these plan change processes under the

RMA are incredibly contentious, very long, subject to many appeals and

it's generally accepted now that you cannot get anything operational

within five to 10 years, if you’re lucky.

Q. Reg 10 leaves wide open, doesn’t it, how you go about the assessment,

fewer permitted activities which may affect drinking water, but could you

look at document 75 which is the draft Users’ Guide issued by the

Ministry for Environment?

A. Yes.

Q. On page 42 of that is the section on well in fact page 38 commences at

5.4. Page 38, it's document 35, page 38?

A. Yes.

Q. And 5.4?

A. Yes.

Q. You don’t need to study the actual wording Mr Lew and I’ll read out

anything that’s important.

A. Thank you sir.

Q. But I just want to draw your attention to the fact that there's quite a long,

quite an extensive set of provisions here about how you go about using

Reg 10 starting at 5.4, “Suggested approach to implementing activity.”

On the next page there's a figure 7?

A. Yes.

Q. And it has what appears to be common sense steps. Step 1 is

identification of abstraction points, would you accept that is relatively

straight forward if we’re talking about Brookvale Road?

A. It's, absolutely and, because those abstraction points are contained in

the – all Regional Council’s consent database let alone on the MOH

website actually with grid references so absolutely.

Q. Step 2 might be more demanding, “Assessment of activities, assess the

extent and type of activities regulated by the Regional Council in areas

upstream or upgradient for groundwater of these abstraction points”?

A. No that’s reasonably straight forward too sir.


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Q. You'd need to make some assessment of how far out you'd go wouldn't

you?

A. Oh, yes but, you know, there's some pretty talented groundwater

scientists these days that do those sorts of things in a groundwater

situation.

Q. Step 3, “Estimate the determinands. Estimate the likely concentration of

contaminants in the source waters identified in step 1,” so presumably

that’s your baseline to determine as, to see whether you’re going to

increase them, so that should be easy shouldn't it?

A. Yes, that may require additional monitoring if that monitoring isn't there

and, of course, environmental monitoring is a temperal matter and just

one sample, you know, as we’ve seen generally doesn’t tell you very

much and so if there's no monitoring it may take some time and even

yeas to actually –

Q. There's four seasons aren't there?

A. Yes although what I would caution you on is that environmental data is

about many years of baseline data to get an accurate picture given the

vagaries and, yeah the vagaries of the system yeah.

Q. All right.

A. But on the face of it, yes.

Q. Step 4, research existing situation, assess any relevant monitoring

information for the water sources being studied or for similar catchments

that may be comparable to get a picture of the existing water quality

upstream of abstraction points. Step 5, check water supply compliance,

check the compliance of drinking water supplies in the region with the

DWSNZ and the ability of treatment plants to remove contaminants.

Then finally, step 6, decide if changes to permitted activity rules are

required. Use the information obtained in steps 1 to 5 to assess

whether changes to the regional plans are required to comply. So it

sounds a reasonably straightforward set of instructions. Was that

process followed during your time?

A. No.

Q. Was the Regional Council aware of this Regulation 10 process during

your time?


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A. I was thinking about this overnight, Sir, and that to tell you the truth, I

can't remember ever seeing this users guide, up to my time in 2011, but

I stand to be corrected. While it says that it was published as a draft in

’09, I'm curious to know when it was actually released to

Regional Councils for comment. Yeah, because I don’t actually

recollect in my time when I was at the Regional Council seeing this. In

fact, I was given another date that it was not released until 2011, which

could explain why I have no recollection of this, even though it might

have been a draft from MFE in ’09 but not released but, so the answer

to your question is no, I personally didn’t go through any of this and

secondly, you know, it would have been put into the plan policy area.

Q. Can you say that again please?

A. It would have been in the jurisdiction of the policy team that would have

been embarking on the plan changes.

Q. Right.

A. Which I was not responsible for.

JUSTICE STEVENS:Q. Looking at page 2 there, Mr Lew, the copyright is in 2009 and at the top,

have you got it there, it is in the box asking for feedback. So maybe the

Ministry for the Environment can help us when it was released.

A. Yes. Yes, it may be that I've just forgotten, Sir, and I'm prepared to

accept that, yeah.

CROSS-EXAMINATION CONTINUES: MR GEDYEQ. While you have the document, could we go to 5.4.6 on page 42?

A. Yes.

Q. And this is step 6. This a more detailed explanation of what we saw in

the figure but it's the crunch point isn't it? The side, if changes to

permitted activity rules are required.

A. Yes.

Q. And it's got a whole section here which I don’t think we need to go

through but the point I want to ask you about is this section says very

little about how you actually go about this and how you make this


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decision. It says, “If you find that there is some permitted activities that

could affect the drinking water, you have several options.” You can

retain the existing permitted activity rule but add more stringent

conditions. Can retain the rule but in addition implement non-regulatory

measures throughout the catchment to reduce inputs or you can change

the status of the permitted activity rule to discretionary. So there's those

tools available.

A. They are all standard tools, Sir, yes.

Q. Right. Does non-regulatory measures mean you don’t talk to people

and liaise and encourage or what does it mean?

A. It can mean that but it could actually mean adopting a voluntary code of

practice and there is numerous examples around the country where

they’ve been successful. Yeah, farm management plans, all those sorts

of things, are what is termed voluntary measures but I think the word

voluntary is probably a bit misleading. It's just not codified in a

regulatory sense.

Q. Can I ask, Mr Registrar, could you assist with document 175 in volume

6?

WITNESS REFERRED TO VOLUME 6Q. Just while it's being pulled out, I'll tell you what it is, Mr Lew. It's a

Hawkes Bay Regional Council section 32 evaluation for proposed

change 6, Tukituki River catchment.

A. Right.

Q. Adopted by Council 24 April ’13. So it's after your time but you're

familiar with what a section 32 –

A. I am, Sir.

Q. – evaluation is?

A. I am sir, yes, so.

Q. Now I’m very much I’m in your hands as to whether this could be

relevant to Regulation 10 or not, but it appears to me to involve a

change to the Regional Management Plan. Is this the sort of change

which Reg 14 contemplates might engage Regulation 10?

A. Yes, I would presume so, sir.


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Q. I haven’t seen this – looking at the index – anything about Regulation 10

in this change document. Would you accept would you expect to see a

Regulation 10 process in this document?

A. Perhaps I could answer it this way, is that perhaps, you know, I would

expect to see some commentary that if it's not being specifically dealt

with in some sort of plan change, why not? In that, you know, there’s no

issue, you know, the supplies are secure and, and so there’s no need

to, for completeness, probably in hindsight, yes, sir.

Q. I may have misled you slightly, because if you look at page 44 of this

document and I think it's just an extract so it's not far ahead, this is at

section 9.9 “Drinking Water Quality,” is there are two pieces of

Regulation relating to drinking water quality that need to be taken into

account in change 6, these are the RMA NES standards and the

DWSNZ and it says what the DWSNZ is, then it briefly describes the

NES and says, “Regulation 10 provides the Region – prevents the

Regional Council from including a Rule,” and so-on. Then it discusses a

number of – the number of water supplies and the permitted activity

allows for existing land uses to be – to continue with some normal

farming variability. I’m just trying to summarise the gist of this without

reading it all, Mr Lew. It discusses two or three or four specific bores.

And then there’s brief comment about the National Environmental

Standards and Policies TT1 and TT2 in relation to managing points or

discharges of the use of production land in a manner that ensures

compliance with the standards. I may not be doing much justice to this.

The point I wanted to make to you is that there’s a – only a brief

reference which does not appear to follow the process set out in the

Users’ Guide and yet this seems to be the occasion when Reg 10 needs

to come into play. Would you agree with that or not?

A. No, not, not fully.

Q. Well, that, that is the occasion?

A. Yeah, not, not fully. The section 32 analysis is not the only policy

document that’s required to be produced, you know, that would deal

with Reg 10.

Q. Right.


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A. There are a multitude of other documents that could equally deal with it

and, and I can almost – look, I wasn’t here at the Council at that time,

but I could almost guarantee there would be substantial consultation

and engagement processes with stakeholders including the drinking

water suppliers and, you know, if, if no issues were raised by them, well,

then probably the, the, you know, the, the issues wouldn't have been

promulgated through to the policy development stage. So look, I, I

would really urge you to direct perhaps some of these questions to

some of the future witnesses.

Q. Yes, no, I just wanted to take the opportunity to see – get your, your

view on it.

A. Certainly, yeah, yeah.

Q. But to my knowledge, Reg 10 has not actually achieved anything within

the Regional Council to date, but I stand to be corrected on that.

A. So would I, sir.

Q. Yeah. Can I ask you about Reg 12 now and we’ve covered the fact that

it applies to all Consent Authorities and any activity which may

adversely affect drinking water, significantly adversely affect the drinking

water. Again, we should look at the draft Users’ Guide which is

document 75, page 45

A. Yes.

Q. Section 6. And it calls them emergency notification conditions and at

6.1 it says, “These regulations require councils to make an emergency

notification condition on relevant consent holders, specifically they

require the consent authority to assess whether an activity could pose a

risk to the drinking water supply in the case of an unintended event, eg

a spill or other accident. If the consent authority considers that such a

risk exists, a condition must be placed on the consents that requires the

consent holder to notify the drinking water supplier if such an event

occurs.” In fact just to pick up on that Mr Lew, Regulation 12.3 does say

that, “There should be notification to the drinking water supplier and the

consent authority.” So that could be the Regional Council as well. And

at the bottom of that page it explains the potential for human error,

equipment failure or extreme weather events needs to be considered


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along with the risk management procedures of the site when deciding

whether such a condition is necessary.” And I do note that in

Reg 12.1(b) it specifically says, for example, “An unusually heavy

rainfall.”

A. Yes.

Q. So against that background we have seen that such an emergency

notification condition was imposed in respect of Te Mata Mushrooms’

consents. Do you recall that?

A. Yes I do.

Q. During your time did you have a system or a process for implementing

Reg 12 or any consents that came before the Regional Council?

A. When you say a system, there was a process where if a consent officer,

first the manager would review the application, give some instructions to

the consent officer, and the manager would then review it and if it was

significant enough, it would even come up to me as a second tier

manager to sign off but in terms of a system, because the NES was so

top of mind, it was just a new regulation, that was just like all the other

bits of RMA that was there and we would pay attention to that in the

consent applications.

Q. It’s very broad, isn’t it, it involves anything would could affect drinking

water basically, the activity?

A. On the site, yes. To me I have got a little bit of difficulty there in that you

know other parts of the regulation talk about water takes and discharge,

sorry water permits and discharge permits and this one probably, as you

are suggesting now, goes a lot wider than that, yes.

Q. Well how many permits would the Regional Council process in a year?

A. In my time probably over 1000.

Q. But you could narrow that down to any activity in proximity to one of the

drinking water bores couldn’t you, or could you?

A. You could and you probably should and if I take you back to my earlier

advice around you know this information sharing and that sort of thing

and let alone perhaps some future evidence that you might hear from

Mr Brydon Hughes about. I think it is very important to delineate a zone


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around any given water supply which you might pay particular attention

to. I think that would be very prudent in the future.

Q. Any reason why Reg 12 couldn’t apply to a water permit granted to a

drinking water supplier for its own bore operations?

A. Yeah like I think I’ve said earlier, I have some difficulty with that really.

Q. You said that earlier about Reg 7?

A. Yes.

Q. I'm inviting you to look at Reg 12?

A. The difficulty continues sir.

Q. Could I back up one there and say that Reg 12’s got two parts, 1(a),

“Whether the activity itself may lead to an event occurring had a

significant adverse effect,” so this looks at the inherent nature of the

activity?

A. Yes.

Q. 1(b) is, “If as a consequence of an event,” which appears to be the

concept of an accident?

A. Yes.

Q. And it says, “For example, in unusually heavy rainfall,” so “accident’s”

probably a bit narrow, “An unintended event.” So ones inherent nature

of the activity and you might, would you agree that extracting water out

of a bore itself isn't inherently likely to affect the water?

A. Yes I would agree to that.

Q. But would you not agree that if there's an untoward event in a water

bore that certainly could adversely affect the water at the abstraction

point?

A. Yes I could agree with that.

Q. And I don’t really need to ask your agreement because the regulation

pronounces this and unusually heavy rainfall would be such an event?

A. Yes but if you were convinced or there was appropriate well head

connection then I don’t see any likelihood of –

Q. You must consider whether it may, mustn’t you, may affect?

A. Yes so if you could be assured and you knew that there was appropriate

well head connection on a well, as you’re indicating here, then I don’t

see a risk associated with a high rainfall event.


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Q. You could stipulate that a high rainfall coupled with a power failure might

be a notifiable event?

A. Yes so then you'd go into these dry chambers and all those sorts of

matters so yeah, yeah.

Q. Yes well I'm really just exploring how Reg 12 is supposed to work or

how you might have approached it Mr Lew?

A. Yes so to be honest with you sir I, and perhaps maybe in error now, but

it was very firmly in my mind that this was solely about third party, the

wholeness was about third party, ie, non-drinking water supplier

activities.

Q. Yes and you don’t need to take that any further because that’s

something the inquiry will grapple with.

A. Yes.

Q. Just in principle do you see any reason why on future water take

consents granted to the Hastings District Council there shouldn't be a

condition that if there's any untoward event which breaches the bore,

the bore seals, that the Regional Council should be notified?

A. My answer would be, if I take you back to the information sharing gap

which I've already highlighted, under that absolutely and perhaps now in

the benefit of hindsight with a, if I could use the term “belts and braces

approach” then perhaps that should even be codified under 12 in the

consent itself.

Q. The whole purpose of Reg 12 must be to alert the supplier and stop the

pump or to do something of that nature if the water may become

adversely affected this is the purpose of this –

A. Yes and this is my difficulty sir because you’re actually asking the

supplier to tell you they’ve got a problem so you can tell the supplier

they’ve got a problem.

Q. Understand yes.

A. It's rather circular really.

Q. Yes it is. Except you could say that it is a safeguard in place which

recognises the first barrier and the second barrier in that both of those

barrier guardians have to respond to a rainfall event?


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A. I think for nothing else but for information sharing and using the

collective capability and experience and resources of all organisations in

an event then, you know, that would be advantageous to share that

information.

Q. And perhaps an example of what you’re saying about information is that

we understand the Regional Council was not told about a contamination

event in July 2013 at Anderson Park and we also understand that the

Regional Council wasn’t advised of the October 2015 bore 3 event,

though it found out and asked some questions, but if you have two

events like that, and you tell the Regional Council, then it has

information with which to assess a Reg 12 situation doesn’t it? Matters

which may adversely affect the water.

A. Yes, potentially.

Q. So the operation of all of the NES Regs would be greatly enhanced if

the two Councils liaised?

A. Yes, and that’s the gap that I've highlighted.

Q. It is. I just want to ask you a couple of things about the consents which

were granted. Perhaps we should go back to the 2008 consent, which

is document, I think, 6.

A. Yes, I know it well, Sir.

Q. I'm sorry, it's not 6. It's 5.

WITNESS REFERRED TO DOCUMENT 5A. Yes.

Q. When Regional Councils grant consents relating to a bore works, am I

right that the Regional Council has its own standards which apply to

wells and bore heads and I'm referring – why don’t I take you also to

document 166 so that you can make sense of what I'm asking you.

WITNESS REFERRED TO DOCUMENT 166 – PAGES FROM RRMPQ. And this is some pages extracted from the RRMP.

A. Yes.

Q. Is that the Regional Resource Management Plan?

A. Correct, that’s the operative regional plan but this has had amendments

since that time, yes.


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Q. And do we see here that the Regional Council has Policy 21, a

decision-making criteria bore construction?

A. Yes.

Q. And this is very generic. It just says that, “They are to be drilled,

constructed and maintained in a manner which avoids any

contamination or cross-contamination. It does not allow any seepage or

backflow contamination to groundwater.”

A. Yes, it's a very outcome-driven policy.

Q. Right. Is there also Policy 31? Well, Policy 27, decision-making criteria

well and bore construction, which covers things such as depth,

diameter, screen slot size and well efficiency and so on?

A. Yes.

Q. And Policy 31, wellhead construction.

A. Yes.

Q. And over the page, there's paragraph 6.3.1, bore drilling and bore

sealing. “The bore shall be cased and sealed to prevent aquifer

cross-contamination and leakage from the ground surface into the

groundwater.” Right. So the Regional Council has its own regulatory

framework for bore constructions which if followed would prevent

contamination ingress into the aquifer?

A. So yes, in terms of a policy context, that’s what this sets up, yes.

Q. And although those rules might be for the purpose of protecting the

aquifer, they would also enhance the drinking water safety if followed

wouldn't they?

A. That would be an absolute co-benefit, yes.

Q. So in future when a Regional Council is granting a water consent to a

water supplier, it has the framework as well as the power to impose

conditions which are more stringent and more detailed than the existing

21, doesn’t it?

A. It has that power in any resource consent, sir.

Q. But it has a framework which refers to bore construction and in

particular that it be sealed properly?

A. Yes.


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Q. Such a condition could also refer to the Drinking Water Standards and

those bore criteria, couldn’t it?

A. I would have to think about legalities of it further there actually. In terms

of using an RMA permit to enforce a drinking water standard.

Q. Well no it would just be, this condition is you shall comply with these

terms which are found in the Drinking Water Standards.

A. Yes I think you could do that sir, yes I think you could.

JUSTICE STEVENS:Q. Call them across by analogy.

A. Yes.

Q. By adoption.

CROSS-EXAMINATION CONTINUES: MR GEDYEQ. It could also cross-refer to the Standard NZS44.11 to support it?

A. Yes it could, yes.

Q. Do you think it would be good practice for Regional Councils in future to

stipulate detailed and prescriptive terms for bore head construction and

maintenance?

A. Yes I do and from a consent practitioner point of view, that would make

life a lot simpler but what I can tell you is that over my whole time and

career there has been many attempts and many arguments by

specialists in the area to try and land a national set of these sort of

standards and look up to 2011, I can’t recall whether from a national

point of view that was ever agreed. And so what that ended up is

typically Regional Councils have different versions of their own. I mean

they are very much of a muchness but in terms of one absolute

New Zealand Standard, I am not sure that that was available in my time.

Q. You do, of course, have a pretty good prescription in this consent under

the advice note well head construction.

A. Yes.

Q. There is no reason why that just couldn’t be a condition, is there?

A. Yes I said yesterday that yes, I agreed to that.

Q. No gaps around the pipe work and cables?


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A. Yes although these are, what I call, outcome based conditions. You

know perhaps, the standards that I am talking about get right down into

the technical detail of how to do things technically which is at a different

level of detail than these outcome descriptive standards, rather than

prescriptive.

Q. Ono the next page of your consent, you say “Monitoring note. Routine

monitoring.”

A. Yes.

Q. “Routine monitoring inspections will be undertaken by council officers at

a frequency of no more than once a year to check compliance with the

conditions of the consent.” Was that a standard term?

A. Yes it was a standard term but the frequency would be often changed

for each consent.

Q. It also says, “Non routine monitoring will be undertaken.”

A. Yes and I distinctly remember inserting that specifically in relation to this

consent, sir.

Q. And that would happen if there is cause to consider, for example,

following a complaint from the public or routine monitoring, that the

consent holder is in breach of the conditions of this consent.

A. Yes sir.

Q. Correct?

A. Yes.

Q. It has been suggested in briefs from the Regional Council that this

monitoring note only related to the quantities of water being drawn or

the rate of water being drawn and nothing else. But you would agree

with me it doesn’t say that does it?

A. No it doesn’t and the brief that you are referring to is probably my extra

brief of evidence and that was standard template wording but the

absolute intention behind it was the conservation management plan and

the trigger levels and the increased monitoring around the gauging site

that would be required to make sure that that could be enforced.

MR WILSON:Q. So the focus was on monitoring consumption as distinct from condition.


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A. Yes, Sir. So the idea was that as the flows drop in the

Mangateretere Stream that the conservation management, demand

management plan from the District Council should ramp up in its efforts

to achieve a lessor consumption given the flows were dropping, which I

considered at the time is still to be good and modern water management

practice in a supply constrained environment with very, very high per

capital usage of getting up to 700 or 800 litres per person per day.

Q. There are, of course, other alternatives?

A. Yes, there are, and, and the cons – the demand management was not

just around reducing consumption, it actually went to pressure and

leakage an all those other matters Sir.

CROSS-EXAMINATION CONTINUES: MR GEDYEQ. Under non-routine monitoring, if you became aware that the bore works

in Brookvale Road were in a very poor condition, for example someone

aiming of that to the Council or advising the Council of that, the Council

would surely have looked to its Condition 21 and taken enforcement

measures, wouldn't it?

A. Yes, if that complaint came to me, yes, 21 gives us that ability to do that,

but regardless of 21, I think that the general tenor of the consent would

allow that anyway, but I would also refer you to the bore permit as well.

Q. Yes. There’s been a lot of evidence about the Regional Council’s risk-

based monitoring practices.

A. Yes.

Q. And a lack of resources to monitor every consent and so-on, but in that

connection am I not right that Regional Council can very easily impose a

condition that the consent holder report to it as to the condition of a

bore?

A. Yes, sir.

Q. Is that common practice in a consent to require the consent holder to

furnish reports?

A. In general sense, yes; in relation to bores, that’s not common practice

across New Zealand as far as I know.


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Q. Well, in, in fact this consent required District Council to furnish quite

detailed reports about the quantity.

A. The rates of abstraction, certainly, sir, yes. Yes, because that was the

whole focus of the hearing.

Q. So the Regional Council need not deploy any resources, it needs to just

sit there and receive reports periodically, that’s one way of addressing

monitoring, isn’t it?

A. Yes, it is.

Q. And there should be no cost either way because it's clear from these

terms that the consent holder pays the monetary costs anyways,

correct?

A. Oh, look, what I would say, sir, is that, yeah, certainly that reduces the

cost to a regional council. There’s still the cost of actually reviewing all

those reports and, you know, writing back and so there’s always a cost

and there’s always a, a compliance cost on the consent holder to do that

and, and if I could also point out, sir, that, you know, just from a

New Zealand perspective, across New Zealand there is hundreds of

thousands of bores here in this country.

Q. Yes, but only a very few major public supplier bores, don’t you think?

A. Yes, and –

Q. We’ve got three bores here on Brookvale Road?

A. Yes, yes, sir, I, I would accept that, but, but just to be helpful, sir, you

know, I, I, I take you to some of my previous comments around in the

benefit of hindsight and in this regrettable event, I would suggest that it's

not just the water supply bore, it's perhaps any bores in a proximity to

be determined around a public supply.

Q. Yes.

A. But, but certainly that would reduce the number from hundreds of

thousands through a lesser number.

Q. Well, coming back to basics, would you accept section 35 of the

Resource Management Act imposes an obligation on a council to

monitor the consents it's granted?

A. I think it's 36, actually.

Q. All right.


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A. Yes, but anyway, we won't argue about that. Yes, yes it does, yes.

Q. All right, we won't go into how that might apply, we might be here for

weeks. Doesn’t everything we’ve discussed, Mr Lew, indicate that

liaison between the Hastings District Council and the Hawke's Bay

Regional Council is a very important matter?

A. Yes.

Q. Regional Council could be described as the more powerful and

better-resourced entity between the two, couldn't it?

A. Not in every respect, no.

Q. Well, the Regional Council is the guardian of the aquifer, isn’t it?

A. Yes.

Q. Got very wide powers under the RMA.

A. Yes.

Q. Got the power to grant or refuse consents to take drinking water. Got

the power to impose conditions.

A. Yes.

Q. These conditions could be robust and stringent.

A. Yes that’s correct yes.

Q. And do you accept that the purpose of the NES regulations was to fill a

gap whereby there was no obligation on a Regional Council to address

first barrier drinking water safety issues?

A. Yes I would accept that.

Q. And so Regional Councils have direct and mandatory duties under the

regulations don’t they?

A. Agreed.

Q. The NES regulations generally encourage Regional Councils to be

aware of the link between environmental concerns and drinking water

concerns?

A. Agreed.

Q. Hawke's Bay Regional Council has a strong resource with the staff of

scientists many of whom have specialist expertise in groundwater,

hydrogeology and related disciplines?

A. Agreed.


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Q. Regional Council has an extensive SOE monitoring programme and has

knowledge of aquifer conditions and patterns?

A. Agreed in relation to State Environment Monitoring network absolutely

yes.

Q. If we contrast all that with the District Council would you agree the

District Council does not normally have a team of scientists on its staff?

A. Yes absolutely.

Q. District Council has no particular expertise in groundwater and aquifer

issues?

A. They would have, I wouldn't say no, I'd say that by virtue of training of

the, particularly the professional engineering and water engineering they

would have some and in some cases quite advanced. But it's

haphazard across the country.

Q. District Councils have no State of the Environment programme?

A. Correct, oh, not in terms of water, yes that correct yes.

Q. District Councils have little or no power to affect land use in a catchment

area?

A. I disagree with that, yes, the whole purpose of a District Plan is to

control land use.

Q. Would it be fair to say the Regional Council has more power and more

jurisdiction over land use in the catchment area?

A. No I think it's shared actually.

Q. Do the two land use powers overlap?

A. Sorry sir could I just return to that really I think it's important. The

Regional Council under its legal jurisdiction does not have an ability to

control land use, it has an ability to control discharges and water takes

and those sorts of things but it is absolutely the responsibility of the

District Council to control land use yes.

MR WILSON:Q. But Mr Lew is it not correct that matters that are in a Regional Plan must

be given effect to in a District Plan?

A. Yes and more typically the RPS actually Sir yes.


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Q. So the Regional Policy Statements in respect of land use that are in a

Regional Plan must be given effect to in a District Plan?

A. Yes that’s right and the RPS is not allowed to have rules so it must have

policies which must be given effect to in the District Plan and that’s

typically, probably the best example that I know of is coastal hazards sir

is how that would happen so coastal hazard land use, land use in

coastal hazard zones is absolutely the view of the District Council not

the Regional Council but that would actually be derived from a policy

framework in an RPS and a Regional Plan yes.

Q. But in terms of a policy regime there's a clear hierarchy?

A. Absolutely Sir yes.

Q. From – with the regional at the top?

A. Yes absolutely Sir.

Q. Well below national obviously?

A. Yes.

CROSS-EXAMINATION CONTINUES: MR GEDYEQ. And Reg 10 makes it clear that at the very least the Regional Council is

supposed to look at activities, permitted activities in the catchment area

which could affect drinking water?

A. That’s correct.

Q. And there's no need to be precise about these roles, I'm really just

putting to you that the Regional Council is, really is the senior player out

of the two in terms of resources, knowledge, information and in many

respects its powers, would you accept that?

A. In relation to water absolutely but just to qualify that I think the issue

here is that in terms of using that knowledge and power and ability and

resource it has not been clear how they could actually use that in

relation to public water supply security.

Q. Well that’s obviously a gnarly issue but just looking at the respective

positions of these two councils would you accept that the need for

liaison is extremely pressing and important?

A. Yes.


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Q. The District Council’s Water Safety Plan has several entries, particularly

in the area of risk management, saying that the two Councils should

liaise about aquifer and catchment issues. Were you aware of that

when you were at the Regional Council?

A. Not in terms of – sorry, what was the name of the safety plan?

Q. Water Safety Plan.

A. Yeah, I'm more familiar because just of when I was in practicing in this

area with the Public Health Risk Management Plans, which I think

pre-date the safety plan, so I'm a little bit more familiar with that and –

Q. It's the same thing.

A. It's the same thing. All right. So what I would say there, and I've

thought about this, you know, leading up to this hearing, is that in

hindsight, I've been surprised in thinking about it over my time with the

Regional Council, that I was never approached about data or

information to inform that plan but that's not to say that any of my staff

didn’t do that directly.

Q. Well, isn't the simple position this, that during your time, despite all of

the reasons we've examined making liaison extremely important, the

District Council did not come to you in any systematic way saying, “We

need a liaison protocol.”?

A. Yes, that’s right, Sir, and while I don’t want to be defensive around

myself or the Regional Council, the public water supply matter, the lead

entity here is the Drinking Water Authority and I think it would behove

them to be the proactive one coming to us rather than the other way

round.

Q. Well, that may be but you didn’t go to them either did you?

A. No, Sir.

Q. “Hey, we need to have a liaison system.”?

A. No, no, not at all.

Q. And you did have the NES Regs in place which might have encouraged

that approach?

A. That’s correct, yes.

Q. Mr Lew, there's no –


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JUSTICE STEVENS:Q. And just to interrupt there, Mr Gedye, it is probably unproductive to

focus on who is the lead player if you are talking about a concept of

partnership and collaboration. Is not the better view of it that the parties

need to share the information? They both need to take action to ensure

that that happens.

A. Sir, I would 100% agree with that. What I would say in practice though,

and, look, I want to be very sort of upfront and honest around this, is

that at the end of the day, the Regional Councils have a regulatory

enforcement responsibility and that can sometimes challenge the spirit

of partnership and sharing and collaboration, especially when things get

fraught and that’s not, in my view, on par on behalf of the

Regional Council. Usually it's on behalf of those that we regulate and

that’s a normal human reaction, I've got to say, when you think you

might be faced with some legal action. So there is a tension at times in

that relationship.

Q. And perhaps even, more bluntly, an impediment?

A. Yes, that’s correct, Sir, if the relationship deteriorates to that point. I've

dealt with this recently actually, Sir, and refer the Panel to Heron QC’s

report into the Ministry of Primary Industries and fish dumping, which

states that all, just about all the enforcement agencies have a

requirement to maintain good stakeholder relationships and

partnerships with their regulator communities and educate and inform

and work with and collaborate but there comes a point where if there are

clear breaches of, you know, regulatory requirements, then the

stakeholder relationships must be put aside and it must be based on

evidential basis and public interest test to actually advance that

enforcement process and it's that intersection that it starts to get

challenging, Sir.

Q. Given the importance, which we have acknowledged, of the partnership

concept in 2.5 of the Users’ Guide, apart from the regulatory role that

you have just mentioned, are there any other barriers or impediments

that you foresee to information and data-sharing?


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A. Not in terms of the sharing Sir but in terms of the base collection. So

one thing I have thought about because I know this will come up is if

there is additional data collection that has to be undertaken, to inform

any threats of an aquifer to a drinking water supply, who pays. And can

I say that in promulgation of the guideline that I referred to earlier this

morning Sir, in terms of the Bathing Guidelines, there was many, many

arguments between some Regional Councils and the public health

around who is paying for it because data collection networks are

expensive.

Q. Well there are often a lot of costs hidden and otherwise around policy

implementation?

A. Absolutely but look what I would say is regardless of the costs and

those sorts of arguments, clearly as we have seen here, the risk to

public health and lives is paramount really Sir.

Q. Well just focus on any other barriers and you don’t need to give details

but we are interested in how you make it work.

A. Yes another barrier would be the – and we have heard a lot of it in

relation to Hansen et cetera, the need to be systematic, develop

processes, databases and all those sorts of things. All of this is going to

have leadership and I am not sure that 80 something local authorities

and a whole heap of public health unit right around the country all doing

their own thing, is going to be helpful here Sir. I think a consolidated

national led approach by probably two Government agencies is

warranted but often you know, there are some bureaucratic barriers in

relation to those sorts of matters Sir.

Q. We of course can’t go into structure, it is not within our terms of

reference but just picking up on the collection and sharing of information

and data. Would another possible barrier be – you mentioned

leadership on the respective agencies. That has got to be right at the

heart of it doesn’t it?

A. Yes it does, Sir.

Q. And making sure that at executive level, officer level, those steps to

share, collect and share are maintained?


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A. Yes I would agree with that and further to that Sir, just leaving that in a

Users’ Guide I don’t think will ensure the maximum uptake of that.

CROSS-EXAMINATION CONTINUES: MR GEDYEQ. You are aware that a joint working group has recently been put together

with health, environment and local Government representatives?

A. Yes I heard that yesterday.

Q. Okay, so you’re not familiar with how that has been working?

A. Not at all sir, no.

Q. Would you agree when you are talking about liaison and partnership

and co-operation that you need a system which is not dependant on the

characteristics of any particular individual at any particular time?

A. Absolutely and if I take you back to the statistic I gave you around

Canterbury with 450, in excess of 450 water supplies, clearly a system

is required here.

Q. But then it is no good writing down a whole lot of rules if they go against

human nature is it?

A. Oh any system has to be pragmatic and workable, yes.

Q. You’ve spoken of the inherent difficulty of having an enforcement

regulator dealing with drinking water supplier. We have seen this

acutely in recent times with the Regional Council’s decision to prosecute

the District Council. Do you have any insight into how you might

address that difficulty. For example, is it realistic to talk about keeping

enforcement officers outside the liaison axis?

A. Yes.

Q. One arm for enforcement and one arm for liaison?

A. I would 100% agree with you and in fact that is backed by Heron’s QC’s

recommendations to Government enforcement agencies. To do

otherwise introduces potential or actual conflicts of interest in the

enforcement process.

Q. Whatever the Inquiry comes up with, would you agree it's, it's no use

advocating a system where there’s, there’s distrust and active ill-feeling

between the participants.

A. Of course.


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Q. So if you are a district council and you turn up to a meeting to discuss

drinking water and you think you might get prosecuted for it, you’re not

going to be full and frank and free with your views, are you?

A. Yes, that would be human nature, but I would say is that there has to be

a certain amount of respect for the function that is being carried out.

Q. Yes. The enforcement function.

A. Correct.

Q. So everyone should be grappling towards a system where the two are

kept separate if possible and liaison is able to operate in a safe haven?

A. I would agree with separate, but in terms of “safe haven,” look, I, I can't

agree with that because tats at the heart of, of – and, and sorry to go

back to it again – but the Heron QC’s findings is that you cannot have

left hand not informing right hand.

Q. Mhm.

A. If one part of a regulatory organisation knows there is gross or even

moderate non-compliance going on, they have to tell the regulatory part

of the organisation and they can't claim that just because that’s not in

their personal function at that authority that they can't pass that on.

Q. You think that there exists today a sort of “big brother” perception by

district councils which makes full liaison difficult? In other words, they

see the Regional Council as a “big brother” who will, if, if circumstances

permit, take action against them or use it's powers against them?

A. No, I don’t. There are many regional councils that I am aware of around

the country which have perfectly good relationships with their district

councils. Perhaps if I, if I could, sir, and, and look, it's very regrettable,

but I just want to give you a bit of context, but you know, the, the, the

issues between Hawke's Bay Regional Council and HDC even in my

time and continuing after my time were, were strained and, and in this

area it wasn’t just water supply it was waste water, stormwater as well,

so on many, many fronts there was non-compliance going on and that,

you know, led to the strained relationship. Yeah and, and that’s really a

context to perhaps today.

Q. And do you have an suggestion for where to from here then?


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A. My suggestion and I, and I said this to the Hastings District Council

senior management and chief executive at the time is, “Please, you’ve

got to respect that we have an enforcement and regulatory function.

You need to just simply comply with your resource consents. If you

don’t think that the conditions around those resource consents,” and

here I was talking across their three waters consents, given all the

issues we were facing, “If you don’t think that those conditions are

correct or pragmatic, I am very open to receiving an application to

change those conditions given a proper evidence base, but unless I, I

receive that sort of conditioning, given that many of these conditions

were the result of hearings panels and, and many times independent

hearing panels separate to the Regional Council, I expect compliance.”

And I was very firm in that situation, but perhaps that wasn’t always

well-received.

THE COURT ADDRESSES MR CASEY (11:04:11) – ADJOURNMENT

CROSS-EXAMINATION: MR CASEYQ. Mr Lew, I just want to ask you some questions about your evidence and

it would be helpful if you have a copy of it with you.

WITNESS REFERRED TO HIS BRIEF OF EVIDENCEA. I do in front of me, yes.

Q. And, and also about your assessment of the resource consent

application which I think is attached to your statement of evidence?

A. Yes.

Q. Your evidence indicates, as I read it, that the District Council had filed

an application for the renewal of its consent, that is it's water take permit

in 2001?

A. Yes.

Q. But that had been put on hold because it was being treated as

incomplete?


Q. And as I read your evidence there were further exchanges over a period

of some years?


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A. Yes and all of that was prior to my time but I tracked the history of that

process.

Q. At paragraph 17 of your evidence you refer to the operative Regional

Plan having a policy that there was no water available for allocation from

the relevant portion of the Mangateretere Stream?


Q. And I assume your inclusion of that is that it's relevant to the processing

of the District Council’s application?

A. Correct.

Q. And also as I understand it the District Council was seeking to address

that problem because it was a real problem if the policy said you can't

deplete the water in the stream, it was looking at ways to address that

problem?

A. Yes well obviously it created difficulties for the renewal process.

Q. Yes and one of the solutions that they were putting forward or at least

investigating as to whether they could achieve it would be by recharging

from the bores, do you recall that?

A. That was talked about at the time but I never received an application to

me personally on that.

Q. I'm not suggesting that you received an application in any formal sense,

Mr Lew, I'm asking for your recollection that that was one of the

solutions to the problem that was being investigated by the District

Council?

A. Yes I recall it but I do not recall that being worked through in any detail

but rather a concept that was on the table.

Q. Now at paragraph 27 of your evidence you say that, “A further set of

proposed conditions was recommended requiring water conservation

measures to be adopted by the District Council at times of low flow”?

A. Correct.

Q. And you say in your evidence that that was rigorously opposed?

A. Yes that’s right.

Q. And “rigorously” means in an extremely thorough and careful manner.

So can I take it from that that the District Council put up to you an


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extremely thorough and careful analysis of why that should not be

imposed?

A. I'm not sure I can agree with that but what I will say is what they did say

to me is that that is inconsistent with their service level that required

100% supply into the Havelock North and so they didn’t want to do it.

Q. But that’s not what your evidence says, your evidence says that what

they did was rigorous, extremely careful?

A. Perhaps another word might be vehemently.

Q. Well this is your evidence?

A. Yes, yes. So there was significant opposition to that proposal as a

consent condition.

Q. And thoroughly and carefully advanced?

A. All I can do is repeat the reason they gave me why they didn’t really

want to do that.

Q. Now, your paragraph 29, you refer to a side-agreement with the

Ngāti Kahungunu Iwi?

A. Yes.

Q. And you record that the side-agreement was to cease using

Brookvale Road as the primary domestic supply source.

A. Yes.

Q. But not ceasing to use it all together, correct?

A. Yes. Look, I think this got rather a little bit confused. There was at

times when it was talked about ceasing and then some of the

documents said, you know, reducing. So, yeah, I think that was a bit

grey.

Q. Well, it's not too grey because it's in black and white. It says, “Cease

using as primary source,” not, “Cease using all together,” correct?

A. Yes. One of the documents I think that you're referring to does say that,

yes, I agree with that.

Q. Well, I'm referring to your evidence and as I recall or as I read your

evidence, it does correctly record what was said in the correspondence.


Q. You then say in paragraph 29 that that was a key factor in your

recommended duration of consent.


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A. Yes, it was.

Q. Can I ask you then to go to page 34 of your office’s report, which is

attached to your evidence?

A. Yes.

Q. And that's appendix A to your evidence?

A. If you could assist in – because I don’t have it actually here. It'll be in

one of the bundles but if you could pose the question or?

Q. Yeah.

A. Thank you.

Q. And if you need some assistance to find the page, just ask the registrar.

JUSTICE STEVENS:That was section 11?

MR CASEY:Section 11, yes.

JUSTICE STEVENS:Q. On page 34.

A. 34. Okay. Yes.

CROSS-EXAMINATION CONTINUES: MR CASEYQ. Now, that sets out a number of reasons why you recommended the

10-year consent duration?

A. Yes.

Q. None of those refer to the agreement with Ngāti Kahungunu do they?

A. This is a curious matter of RMA legal practice actually in that a

side-agreement between an applicant and a third party can't be taken

into account legally in a legal consent document.

Q. Well, that may be so. It may not be, Mr Lew, but your evidence at

paragraph 29 says it was a key factor in your recommendation and it's

not is it?

A. But the, look, probably you're technically correct but at the hearing, the

District Council did offer up the 10-year term and the – well, sorry. I'll


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re-say that. What they offered to do was to exit that supply or reduce it

significantly over the time of the 10 years, which was a major factor in

granting that permit, which was inconsistent with the policy of the RMP,

the Regional Resource Management Plan which is an operative regional

plan that said there was no water for allocation from that stretch of the

stream.

Q. Look, Mr Lew, you prepared this evidence. I'm assuming you wrote it.

A. Yes, I did.

Q. You sure?

A. Yes.

Q. Right.

A. Absolutely.

Q. So in your evidence you said this was a key factor and it wasn’t. I'm not

asking you to give us an explanation now. The fact of the matter is that

on the day in 2008, it wasn’t one of the factors that you identified.

A. We were well aware at the hearing that that agreement, side-agreement

had been reached and in fact it was tabled to the Chair of the Panel.

Q. I'm sure it was.

A. Yes.

Q. And it's recorded as such. The difficulty that we have Mr Lew is that you

are making a lot of statements about the situation back in 2008 and I

don’t believe your recollection about those matters is all that good. And

I am confirmed in that thinking by the fact that you have clearly

misstated something that is on the record.

A. Sorry, what is your question sir.

Q. I am putting to you that you don’t have a good recollection of what was

said or done around the consent application in 2008?

A. I am not sure that I can agree with that sir.

Q. Well let’s look at your paragraph 36. You say that leading up to the

hearing and with the data available at the time there was some

conjecture about whether the operation of the wells had a direct

connection to the Mangateretere Stream and resulted in water within the

stream being directly abstracted into the wells.



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Q. Now can I please ask you whereabouts is there a record of this

conjecture because I don’t see it in any of the documentation?

A. No you will not see it in the officer’s report.

Q. So among whom was there this conjecture?

A. I can clearly remember a number of meetings between submitters, the

applicant, the applicant’s consultants, numerous applicants’ consultants

and different representatives from Hastings District Council and I clearly

recollect, but apologies sir, I don’t recollect who exactly was in the room

at the time, but I remember a meeting on level 2 of the Hawke’s Bay

Regional Council’s officers in the meeting room where that was

discussed but at the end of that meeting it was determined, by myself

and agreed to, that the mechanism of depletion was not important. The

key matter was the fact that there were 62 litres a second. Not

decrease in flow in the Mangateretere Stream.

Q. Now we know that Mr Gyopari was the expert engaged by the applicant,

the District Council.

A. Yes I recommended to the District Council that they actually engage

Dr Gyopari due to his expertise.

Q. And he provided a statement of evidence for the applicaton hearing?

A. Yes he did.

Q. And he makes no reference in that statement to the possibility that

wateR from within the stream was being directly abstracted into the

wells?

A. That is correct but there were other groundwater scientists from the

Council that were involved in the application as well.

Q. And Mr Gyopari – or Dr I should say, Dr Gyopari is certain that there

was no conjecture about whether the operation of the wells had a direct

connection in the sense of water within the stream being directly

abstracted into the wells. So he says there was no such conjecture that

he was aware of.

A. I can’t speak on behalf of Dr Gyopari.

Q. But do you agree that if that was a matter that was being discussed by

the Regional Council experts, it was important to the process?


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A. So I repeat it was important to the process because the sole issue was

the 62 litres and the mechanism for how it actually arrived or it was

derived, was not important.

Q. Because so far as the Regional Council was concerned, the only matter

of importance was the impact on the groundwater resource?

A. No more importantly on the Mangateretere Stream.

Q. Yes and on the stream?

A. Yes.

Q. No concern at all about what the water was going to be used for.

A. Sorry could you rephrase that question?

Q. You have said in your evidence that it was not of any interest to you

what the water would be used for?

A. That’s correct. You know, the use, whether it is public water supply or

for irrigation or whatever, it is really about the effects of the abstraction

and the sustainability and what I am really implying there is in terms of it

is used for a public water supply and all the water quality issues that go

with that, was not in the purview of the resource consent process that I

was dealing with.

Q. So you are saying there was this conjecture, this discussion which was

not shared with Dr Gyopari and it was dismissed as being irrelevant

even though it could have resulted in water from the stream getting into

the bores?


Q. Now, Mr Lew, you’ve answered a number of the questions that my

learned friend Mr Gedye has asked you about a number of issues,

contemporary issues, but am I correct in saying that after you left the

Regional Council which was in 2011 you have had no further

involvement in Regional Council administration or consenting or

resource management?

A. That’s correct I've been on the other side of the world sir.

Q. I understand that, no criticism. So you’re a bit out of touch, if I can be so

bold as to suggest?

A. Post-2011 absolutely.


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Q. Thank you, not that that’s a criticism it's just a reality. You answered a

question very early in my learned friend’s questioning of you which was

that in, you said, “In my whole career never once did I feel I had a legal

or other responsibility for drinking water”?

A. Correct.

Q. You answered some later questions as if you were concerned about the

National Environmental Standards on drinking water quality and I

wondered about the conflict between your answers to that first question

and then to your subsequent questions?

A. No, no I fully accept that I had a legal and jurisdictional responsibility of

the NES, perhaps a more accurate statement is never once in my

career did I have a legal or jurisdictional felt responsibility in relation to

the Drinking Water Standards.

Q. Well you said in relation to drinking water?

A. Yes.

Q. Now at the time of the 2008 consent application there was a

Regional Plan or a Regional Policy Statement or was it a combined

document?

A. It was a combined document.

Q. And I haven't seen in your report any particular assessment against

that, no sorry I'm wrong there, you have provided an assessment?

A. Officer’s report has an extensive traverse of the matters in those

documents.

Q. But there's no assessment in that about the impacts on the quality of the

water in the aquifer, correct?

A. One hundred percent correct sir yes.

Q. And attached to your report is a section of the Regional Plan Policy

Statement?

A. Yes.

Q. And it has a number of issues and objectives?

A. Correct.

Q. And they are all around, all focused around groundwater quantity,

correct?

A. Correct.


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Q. The closest we get to anything approaching quality is at page 81 where

it talks about surface water resources?

A. Yes.

Q. And that focus is on maintaining surface water quality at objective 27?

A. Yes.

Q. And the focus there is on, “Sustaining or improving aquatic ecosystems

for contact, recreation purposes where appropriate”?

A. Yes.

Q. And I may be wrong but that was the only matter that I could find in the

whole of the document relating to water quality?

A. That would be correct sir because the whole focus of the hearing was

given that the, there was no question around the sustainability of the

proportion of the take derived from the groundwater zone which was

considered to be sustainable. The whole objective or contention around

the hearing was the effect on the Mangateretere Stream and its aquatic

ecosystems and biota and in-stream ecology as a result of the 62 litres.

1125

Q. But this is about water quality not so much about quantity, this

objective?

A. Correct, yes.

Q. But in the rest of the plan.

A. Yes.

Q. Was there something else that dealt with the water quality in

groundwater?

A. Yes, there is a whole section on groundwater quality.

Q. There was then or there is now?

A. Both.

Q. But you don’t refer to that in your report, do you?

A. No, because it wasn’t a matter to be taken into account.

Q. It wasn’t a matter to be taken into account in the application to take the

water?

A. Correct.

Q. I thought I heard you, in answer to a question from my learned friend

Mr Gedye, that the conditions imposed, particularly Condition 21, were


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designed to prevent contamination of the groundwater. From what you

have just, that would have been an irrelevant condition if there was

nothing about this consent that had anything to do with the quality of the

groundwater?

A. The imposition of a resource consent condition on well head protection

is a standard condition that goes on every single consent, or did, and

every bore permit. The more typical times when groundwater quality is

more substantially considered in a resource consent application is in

those times where you’ve got a discharge to land or in the unlikely event

of a discharge into groundwater where those matters would be

significantly more traversed.

Q. Well, I’m struggling, Mr, Mr Lew. I can understand perhaps when a

permit was being granted or was to be granted for the bore construction

you would want a condition around that to protect the ground water from

the construction and operation of the bore. Well, not even the

operation, the maintenance of the bore is what I meant, but it would

hardly apply to a consent to extract water from the bore because it's a

matter of construction and maintenance, not of abstraction, correct?

A. Yes, that’s correct, but I guess I, I go back to the terms of perhaps a

“belts and braces” approach there.

Q. I asked a question of what is relevant to the consent that’s been granted

at the time? This is a consent to extract water from an existing bore.

A. Yes.

Q. Whether or not the bore was constructed to best standards was a matter

that should have been dealt with at the time the bore was constructed?

A. Yes, but in all practicalities, so once you get the bore permit and you

construct the, the, the well, you, you drive the, you drive the, the well,

you can sink the casing, construct the, the, bore head, and then you get

a water take permit. By virtue of that water take, it necessitates opening

up that bore head, inserting pumps and other things which obviously

gives rise to, you know, opening up the bore head and well head

security, let alone many wells, especially these days, have all sorts of

sensors down them, so as a result of their taking activity, so again from


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a “belts and braces” approach, it is standard practice to, to insert a

similar condition at that time.

Q. You agree with me, though, that what say the Regional – sorry, the

District Council just stop using that bore? Would they then be relieved

of that condition, they weren’t taking water out of it anymore?

A. They would have to surrender that consent first.

Q. Yeah, they could surrender the consent.

A. Yes.

Q. But that’s, that’s all you do, it's just a – it's a administrative function to, to

surrender your consent?

A. Yes, largely administrative, yes, yes.

THE COURT ADDRESSES MR CASEY (11:29:13) – GOOD NOTE TO ADJOURN

MR CASEY:I just finish this one point, one question.

CROSS-EXAMINATION CONTINUES: MR CASEYQ. So the bore would have stayed there in all of its glory or all of its defects

with nothing pursuant to this water permit controlling it.

A. No, on, on, on a surrender of a consent, like I’m, I’m, I’m – my memory

tells me, but I, I – please if you could refer this to perhaps to Mr Maxwell

or one of the other Regional Council witnesses, I think there’s a, a well

decommissioning process that needs to go on.

Q. What about just not exercising the consent? Because it's only upon the

exercise of the consent that the conditions become operative because

it's if you exercise the consent in breach of your conditions then it's the

extraction of the water that is the breach, nothing else?

A. So, so under RMA if you don’t exercise your consent, you could actually

forfeit that consent.

Q. You could.

A. Yes.


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Q. But not necessarily so?

A. No, in regards to water and in particularly in fully allocated catchments,

in my time and I understand perhaps it has continued, that the

Regional Council was getting particularly tough on that because of the –

what was going on called “bags-ing of water” where someone would get

a consent with no intention to use it, to lock other users out because of

the commodity, water commodity’s value. So, so, so –

Q. Mr Lew, you need to be careful before you answer these questions

because there is a whole process in the Resource Management Act

about the commencement of the consent and the lapse of consent and

they’re quite exhaustive and I don’t think you’re giving the, the, the

Panel the right answers, so –

A. No, I’m very familiar with those, actually, because I went through those

processes, so, yeah. But please –

Q. A consent will lapse if it's not –

A. – no, I’m happy to help –

Q. – exercised, but it doesn’t lapse if it's been exercised and then is

stopped. You might be confusing –

A. Oh, that, that, that –

Q. – that with the system user rights.

A. – that, that is correct, if you want to put the question that way, yes.

COURT ADJOURNS: 11.31 AM


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COURT RESUMES: 11.50 AM

CROSS-EXAMINATION CONTINUES: MR CASEYQ. Mr Lew, just with your evidence again, you’ve said in your second

statement, in response to evidence from Mr Chapman, that you inserted

the recommendation for up to four site inspections per year to ensure

accurate assessment on stream flows and also so that the

District Council could cover the costs incurred by the Regional Council

in undertaking more frequent flow measures if and when required. Have

I got that right?

A. Correct.

Q. The report that you submitted, your office’s report, talks about

monitoring again at page 34 and there are five bullet points. It says, “In

addition to the sampling and analysis to be carried out by the consent

holder, the Council staff will carry out the following monitoring,” and it

says, “Up to four site inspections per year,” is the first bullet point and

the second one is, “Auditing of consent holders water take recording

and monitoring procedures (and other auditing) once per year.”

Correct? And it says after that, “In conjunction with one of the site

inspections.”

A. Yes.

Q. So the auditing, presumably which was to ensure the accurate

assessment on the stream flows, was to be once per year in conjunction

with one of the proposed up to four site inspections.

A. Yes.

Q. So the other three or up to three weren't for that purpose, they were for

some other purpose, correct?

A. On the face of it, yes, I would accept that. Yes.

Q. Now, I think you answered some questions to my learned friend about

the way in which condition 21 was going to be monitored and you’ve

read other evidence from witnesses who are yet to be called that they

say it was never intended that that would be by physical inspection.


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That is condition 21 about the maintenance, the ongoing maintenance of

the condition of the wellheads.

A. Yes.

Q. And is that your position too, there was no expectation that it would be

by physical inspection?

A. That’s right. It wasn't the custom or the practice at the time, in my time,

to physically inspect wellheads.

Q. Now, can I ask you please if you could turn to document 6, which will be

in volume 1 of the folders?

WITNESS REFERRED TO DOCUMENT 6 - VOLUME 1

JUSTICE STEVENS:Are you coming back to the evidence?

MR CASEY:No, I've finished with the evidence. Thank you, Sir.

CROSS-EXAMINATION CONTINUES: MR CASEYA. Sorry, what was the reference?

Q. Reference 6.

A. 6, yes.

Q. And that is the resource consent water permit.

A. Yes.

Q. It's got the date the 12th of March 2014 but I think it's a replacement

permit because of some updating but I've checked the earlier permits

and they are identical so far as the conditions are concerned and also

so far as appendix 3 is concerned. So can I ask you please to turn to

appendix 3, which is in landscape?

WITNESS REFERRED TO APPENDIX 3A. Yes.

Q. And that’s headed up, “Appendix 3, Consent Condition Analysis.”

A. Yes.

Q. Is that a document that you prepared?


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A. No. I'm reasonably sure that this was prepared by Sven Exeter, who

assisted me at the time.

Q. So you had responsibility for its preparation but you got that person to

prepare it?

A. Yes, yes. This is called a CAT table, a condition analysis table, yes.

Q. Good. And if you go to the last page, which is page 13 of the document

– have you got it there?

A. Yes.

Q. And the very last item is 21?

A. Yes.

Q. And condition title, “Works and Structures.”?

A. Yes.

Q. And it says the reason for the condition was to ensure safety?

A. Yes.

Q. We're not talking about water contamination or contamination of the

aquifer are we? We're talking about safety?

A. If your implication is that this was intended to be the safety of the public

water supply, I’m not sure that that is my –

Q. Probably health and safety.

A. Yes. Safety in general, yes.

Q. And then it says, “Determination of Compliance.”

A. Yes.

Q. Can you read that?

A. Yes.

Q. It says, “Inspection by Council officers,” doesn’t it?

A. Yes.

Q. Now, that’s in black and white. Is there some other explanation that you

have to offer for the evidence that you’ve given that that was never

intended?

A. So what I can say to you, Sir, is that there are many thousands of

conditions attached to many thousands of resource consents and just

because they're a stated condition on a resource consent does not

mean that every single one of those is routinely monitored or inspected

and it is absolute industry practice in any enforcement agency to


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effectively take a risk-based approach to guide which conditions will be

actively monitored. Nonetheless, that doesn’t mean to say that just

because you don’t have an explicit intention to routinely monitor them,

that the conditions shouldn't be there because there is some obligation

– no, there is an obligation on the consent holder to comply with those

regardless of whether the Regional Council inspects or not.

Q. Yes. So that’s your explanation?

A. Yes, it is.

Q. Now, you’ve told us that this is a relatively standard condition and it

wouldn't just be for water supply bores, it would be for bores generally?


Q. And can I take it that your CAD would in those other consents have a

similar statement alongside condition 21 or its equivalent?

MR WILSON:Sorry, CAD?

JUSTICE STEVENS:CAT.

CROSS-EXAMINATION CONTINUES: MR CASEYQ. CAT. The conditions analysis table.

A. Yes, that would be my expectation, Sir, yes.

Q. So any member of the public who is interested in knowing whether the

Regional Council was monitoring compliance with the resource

consents that it issued and went to the resource consent and saw

table 3 and saw that entry would expect that the Regional Council was

actually doing what it said it would do, correct?

A. I think the Regional Council reserves its discretion to be able to do that.

JUSTICE STEVENS:Q. Well if that’s explanation Mr Lew, you'd have to acknowledge that a bare

assertion in that box is rather misleading isn't it?


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A. Yes I think what, these are standard conditions and condition tables and

all I can say sir is that it was not usual custom and practice despite the

condition to be in that we were monitoring those well heads. There

would be other circumstances that would trigger us monitoring those

well heads but in the absence of those circumstances we wouldn't

routinely do that.

Q. How does the consent holder read that? They don’t know if that’s the

distinction between the assertion and the actuality, they're worlds apart?

A. Yes I would accept that Sir.

Q. So it leaves both the public and the consent holder basically in the dark?

A. Yes and I don’t know whether it would be helpful to explain but please if

it's not, the circumstances that would trigger inspections of the well

heads?

Q. Well I think it's probably irrelevant, what we’re looking at are the

conditions?

A. Certainly Sir.

CROSS-EXAMINATION CONTINUES: MR CASEYQ. Now we’ve asked you and His Honour has as well about the general

position?

A. Yes.

Q. But in your report to the hearing of this consent application you’ve

actually included a note, “That the charges to HDC will be slightly higher

than previous consent,” and you give the number, “Due to the conditions

in the consent requiring extra compliance monitoring by the Regional

Council”?

A. Yes.

Q. Now I just want to ask a few more questions Mr Lew, I'm sorry to take

such time. When you were asked by my learned friend Mr Gedye

yesterday about the Regulation 7 and the consenting of activities that

may have an effect down gradient or downstream you said in answer to

a question he asked, “If there was a slightest concern you would limited

notify”?

A. Yes.


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Q. Yet today you said that you would have to be satisfied that the effects

were less than minor otherwise there was no jurisdiction to notify?

A. So my permission is and to be very accurate about it and perhaps my

reply wasn't accurate as it should have been yesterday, to limited notify

you have to have actual potential effects being less than minor.

Q. Now I can appreciate that you have been out of touch for a while but are

you familiar with sections 85(a) and (b) of the

Resource Management Act 1991?

A. Yes it has been a long time sir so you might have to remind me on that

one and I think there may have been some Act amendments around

that post my leaving the council too.

Q. There have been amendments, the key one though was in 2009 while

you were still in the business, give me just a minute. Under section

95(a) the requirement of the Act is that, “A resource consent application

must be notified if the activity will or is likely to have more than minor

adverse affects”?

A. Thank you that’s the precise wording yes.

Q. And also there are some other circumstances such as if it's requested

by the applicant?

A. Yes.

Q. Or if there's a rule or a National Environmental Standard it requires

notification?

A. Okay thank you.

Q. But there's also a provision that says, “That the consent authority may

publicly notify if it decides that special circumstances exist in relation to

the application”?

A. Yes.

Q. You’re aware of that?

A. Yes I'm familiar with that, yes I am.

Q. That’s a common, that’s always been there?

A. Yes it has actually and to my memory there was a growing amount of

case law around what constituted special circumstances actually.

Q. Now that’s public notification?

A. Yes.


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Q. But section 95(b) deals with limited notification?

A. Yes.

Q. Which presumably applies when the adverse effects on the environment

are minor or less than minor, do you agree?

A. You'd have –

Q. Public notification if the adverse effects are more than minor, limited

notification if the adverse effects are not more than minor, that is minor

or less than minor?

A. If that’s what the respect clause said sir I’ll accept that yes.

Q. It doesn’t say that it just says that if you don’t have to publicly notify then

it kicks in and it says, “The consent authority must give limited

notification to any affected person unless a rule or a National

Environmental Standard precludes notification”?

A. Okay if that’s what the, it says.

Q. You see the difficulty that we have and it's no criticism Mr Lew, it's just

the fact that you’ve been off the scene for a while?

A. Yes I have yes.

Q. And you’ve been providing some help to the Court but unfortunately a

lot of that help is based on an incomplete or misunderstanding of the

relevant provisions. My learned friend also asked you about the

Te Mata Mushrooms’ consent and the officer’s report, that’s the dairy

farm effluent consent that was granted to Te Mata Mushrooms and it's

recorded in that report that it was non-notified because it was

considered that the adverse effects were less than minor, you don’t

need to go back to the report but I've read it and I don’t see any

consideration being given to whether a person might be affected by the

consent, I take it you haven't read it that closely yourself?

A. Because that application and process was after my time and because I

don’t have the benefit of the full file and all the details it is difficult for me

to comment sir.

Q. When you were answering some questions yesterday you talked about

the many resource consents that you were involved in where although

not upstream from Brookvale bores potentially upstream or upgradient


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from other bores, other drinking water bores and you said that you don’t

recall any water supply authority expressing concern?

A. Correct.

Q. Of course they can you confirm only express concern if they were aware

of the consent being applied for couldn’t they?

A. Yes I was more meaning about if they were, the water supply authority

was picking up because I guess that comment was more in the context

of having my, managing the other part of the organisation which was the

science team because I managed science consents and compliance

and what I would generally expect is that if a water supply authority was

picking up elevated and increased and abnormal, in their view,

bacteriological contamination in their wells that they would generally get

in touch with us from a science perspective.

Q. Mr Lew, that might be all very well but that’s not the context in which

you’re answering the question, it was about the various consents that

had been granted, not about the effects of the activity once consent was

granted?

A. So I think I said yesterday but please I stand to be corrected, that I don’t

have any recollection of having to consider the National Environmental

Standard in relation to any other water supply applications during my

time up until 2011.

Q. Now you said in answer to a question today that the Regional Council

doesn’t have jurisdiction over land use controls?

A. Yes.

Q. Section 30 of the Resource Management Act says, “That every

Regional Council should have the following functions for the purpose of

giving effect to this Act in its region,” and subsection 1(c) says, “The

control of the use of land for a variety of purposes.”

A. Is that a recent amendment to the Act is it, Sir?

Q. No, that’s always been there.

A. Has it?

Q. Pretty much. Yes, it's always been there.

A. Re-use, sorry. What was the wording?


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Q. It says, “Every Regional Council shall have the following functions for

the purpose of giving effect to this Act in its region,” under subsection

(c), “The control of the use of land,” and I'll take you through the relevant

purposes, there are several.

A. Yes.

Q. One of which is, “The maintenance and enhancement of the quality of

water in water bodies and coastal water.” Are you aware of that?

A. Yeah, look, I'm not overly familiar with that clause, Sir.

MS CHEN ADDRESSES JUSTICE STEVENS – READING DOCUMENT TO MR LEW

ACT HANDED TO WITNESS

MR LEW:Thank you, Ms Chen, but this is not overly helpful to me actually but please, it

would help if you could read the -

CROSS-EXAMINATION CONTINUES: MR CASEYQ. Yes. Look, I'll read it again and His Honour is correct, I have been

reading it to you. I'll read it again. Section 30 is headed, “Functions of

Regional Councils.” It's there.

THE COURT ADDRESSES MR CASEY (12:12:35) – PAUSE

CROSS-EXAMINATION CONTINUES: MR CASEYQ. So you have it in front of you now?

A. Yes, I do, thank you.

Q. Thank you. All right. Now, just take your time to read it so that I'm not

misleading you on it.

A. Thank you.

Q. So what I've read to you is correct, isn't it?

A. Yes.


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Q. Thank you. Now, there was also some discussion about the role of

enforcement by Regional Councils. Are you familiar, from your time with

the Regional Council, with section 85 of the

Resource Management Act?

A. Please, you would have to refresh my memory.

Q. That’s all right. I'll read it to you in a minute.

A. Yes.

Q. I’m not sure whether it's in the folder that you’ve got in front of you and if

it is, it would be useful to read along.

A. 85.

Q. Sorry, it's not 85. It's 80. I'm wrong on that too. Sorry. I beg your

pardon. It's in between. It's 84. I knew it was there somewhere.

Section 84. Have you got that with you, Mr Lew?

A. Yes, thank you.

Q. Subsection 1. “While a policy statement or a plan is operative, the

Regional Council or territorial authority concerned and every consent

authority shall observe and to the extent of its authority, enforce the

observance of a policy statement or plan.”

A. Yes.

Q. And you'd be familiar with that from your time with the Council?

A. Yes.

Q. And you'd also be aware that there's a substantial body of case law that

says that the Council has a full discretion as to how it applies that

section?

A. Yes, it does.

Q. And it does not have to be by prosecution?

A. No, there's a full range of enforcement tools.

Q. Including just a letter?

A. A warning letter, yes.

JUSTICE STEVENS:Q. Or the other way might be to pick up the phone.

A. Yes.

Q. For the starting point.


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A. Yes, there is enforcement policy that was in my time which took you

through education, informing and elevating it up to warning right through

to prosecution to being effectively the last resort, although it doesn’t

necessarily have to follow a linear process if the offending is so

significant or in the, yeah.

CROSS-EXAMINATION CONTINUES: MR CASEYQ. It's all right, Mr Lew. We had evidence at an earlier hearing of this

Inquiry about the Regional Council’s current policy of escalation.

A. Okay. So that may be different.

Q. Which is more like a three strikes rule.

A. Right.

Q. There's no flexibility about it. It's policy.

A. Okay.

Q. So that’s already been the subject of some discussion and I don’t think

we need to take you there. Just one other question, if I may, and I'm

sorry to bounce you round the statutes. You also talked about the

difficulty of the relationship where the Council had obligations to

prosecute.

A. Or take enforcement.

Q. Or take enforcement action. Are you familiar with section 39 of the

Local Government Act 2002?

A. You'd have to take me there.

Q. Yes, I will.

JUSTICE STEVENS:Is it short, Mr Casey?

MR CASEY:It's very short.

JUSTICE STEVENS:Include it then, please.


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CROSS-EXAMINATION CONTINUES: MR CASEYQ. The local authority, it's called Governance Principles. “A local authority

must act in accordance with the following principles in relation to its

governance,” and under subsection (c), it says, “A local authority should

ensure that so far as is practicable, responsibility and processes for

decision-making in relation to regulatory responsibilities is separated

from responsibility and processes for decision-making for non-regulatory

responsibilities.”

A. No, I wasn’t aware of that but that’s very good to hear, thank you.

Q. And that’s always been there as well, since at least 2002, and its

predecessor had a similar provision.

A. Very good.

Q. Can I take it from what you’ve said that the Regional Council, when you

were there, didn’t observe that obligation to separate its regulatory and

non-regulatory functions?

A. I’m not sure I'd go that far actually. How the enforcement decisions

were made is there is an enforcement decision group, EDG, that would

be formed with delegations to make the decision and typically the

named persons in those delegations under the EDG would come from

the regulatory side of the Council and not from perhaps the, you know,

other sides of the Council that were not in the regulatory line.

Q. Well, you don’t need to answer the question but the situation that we

have at the moment is that the person in charge of the enforcement

section also sits on the joint working group that’s been set up to try and

resolve the issues about the quality of the aquifer and things of that sort.

Would you think that was appropriate?

A. I think it could be appropriate. If it was me, what I'd be doing is I'd be

declaring that I'm representing the Council on the matters, you know, for

the group but also putting it on the table that any enforcement-related

matters, then they would have to take that action, so making that very,

very apparent.

Q. So you'd declare a conflict of interest in terms of section 39(c)?


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A. I don’t – I’m not sure that participating in a working group and sharing of

information automatically puts you in a position of conflict in terms of

enforcement matters.

Q. Perhaps not. Well, thank you, Mr Lew.

CROSS-EXAMINATION: MS HOLDERNESS – NIL

CROSS-EXAMINATION: MR RIDDER – NIL

CROSS-EXAMINATION: MS BUTLERQ. We've heard that you were the principal author of the office’s report

dated 14 May 2008 on the District Council water application. That’s

right isn't it?

A. Yes, that’s right. Could I just ask who are you counsel for? I'm not

familiar with all the people here.

Q. Sure. If it assists. Ms Arapere and I are appearing on behalf of the

Ministry of Health.

A. Thank you.

Q. The Ministry for the Environment and also the Department of Internal

Affairs.

A. Thank you.

Q. In May 2008 you were aware of the NES, is that right?

A. Yes I was, it’s impending.

Q. And your evidence is that while you were aware of it, you understood

that you couldn’t actually consider it at the time of preparing that report

dated May 2008, is that right?

A. Yes that is my understanding.

Q. From some of your comments, yesterday, you did take advice on the

NES and considered upstream issues and satisfied yourself that there

weren’t any NES that arose, is that correct?

A. I did that, not because I knew I didn’t have any legal jurisdiction to do it

but I wanted to satisfy my curiosity about it.

Q. Did you raise the NES with the hearings committee at all?


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A. No I don’t believe I did but I am going on memory there but I don’t think

so.

Q. And did the hearings committee have the delegated authority for

actually making the decision on the resource consent application here?

A. Absolutely.

Q. When did the Regional Council start to apply the NES?

A. Well obviously the NES came into effect in June and so it would apply

the NES on receipt of any consent application in relation to its bearing

on a public water supply.

Q. And is it your evidence today that the Council did start to apply the NES

from that?

A. So it is in my evidence today and yesterday that it is not my recollection

that I had any cause to invoke, to consider the NES in my time up to

2011. That doesn’t mean to say that the Council wasn’t mindful of it.

RE-EXAMINATION: MS CHENQ. Mr Lew, maybe the best thing I could do is take you back to where my

learned friend Mr Matt Casey left you which was that he was

questioning you about section 39 of the Local Government Act. Now do

you don’t have that in front of you, do you?

A. Not anymore.

Q. Maybe I could read to you in full.

A. Thank you, that would help.

Q. What section 39 (c) actually says. It says, “A local authority must act in

accordance with the following principles in relation to its governance. A

local authority should ensure that so far as is practicable, the

responsibility and processes for decision making in relation to regulatory

responsibilities is separated from responsibility and processes for

decision making for non-regulatory responsibilities.” So can I ask you,

in your time, at the Regional Council, so far as is practicable, which is

what the Act requires, did you see to separate those two issues in your

dealings with HDC?

A. Yes, that’s correct.


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Q. And is that what you meant in the response about the joint working

group and the declaration of conflict?

A. Yes. Sorry, could I just say that that clause, I remember now, is very

much around obviously the regulatory bit, obviously a Regional Council

or even local authority District Council as operational activities such as

river control and other things that require resource consents from the

same authority and that is very much prevalent to split those

requirements within the organisation.

Q. So you personally were very aware of the need because you talked

about the fact that in that particular situation, you would declare a

conflict of interest? So you were clear about the difference between the

two?

A. Yes absolutely because I have worked on both sides of the Council.

The operational side and the regulatory side and I am acutely aware of

those matters.

Q. Thank you Mr Lew. And earlier when you were answering questions

from my learned friend Mr Gedye, you talked about human nature and

the fact that sometimes the strained relationships arose from the fact

that the Regional Council had a regulatory role. Now that deserved

respect but it is understandable that the reaction on the other side is

sometimes not about co-operation and partnership.

A. Yes, it is. Look, every other week, in a regulatory role, you face those

sorts of things.

Q. Thank you. If I could take you to your first brief of evidence. Mr Casey

was questioning you about the comments by Mark Gyopari.

A. Yes.

Q. So would you us like to – if someone could assist you just to get your

first brief of evidence again.

WITNESS REFERRED TO HIS BRIEF OF EVIDENCEA. I’ve got it here.

Q. Thank you. And if we could just go to those statements by

Dr Mark Gyopari. So my friend took you to paragraph 37 and so there

he, he, he read to you and I’ll just help you –

A. Thank you.


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Q. – because of your sight impairment. He – so in 37 you’ve written, “As

outlined in Section 7.3 of the HBRC’s officer’s report, HBRC scientist

and Dr Mark Gyopari were categorical that the operation of the wells did

abstract ground water that would otherwise recharge the

Mangateretere Stream as springs and hence it was a hydraulic

connection between groundwater and surface water.” My friend didn't

take you to 38 and that’s what I really want to ask you about. In

paragraph 38 you have written, “However, at that time the various

groundwater experts could not provide a categorical answer on the

question of whether there was a direct connection between the

operation of the bores and the Mangateretere Stream and therefore

whether the operation of the bores would result in water from the stream

being directly abstracted into the bores.” W - do you want to comment

on that?

A. Look, I, I, I have a clear recollection that that was discussed, a very

clear recollection that it was discussed at some length. I have a very

clear recollection of the decision that I made to put a halt to those

discussions because I had the information that I needed to proceed with

the resource consent and not delay it any further given the history of

this. What I cannot recollect is who was in the room at that time, but I, I

have such a clear recollection of that.

Q. Thank you. So in response to questions by my learned friend

Mr Gedye, you said that you understood that the NES did apply, but you

were clear that it applied to third parties.

A. Yes.

Q. Yes.

A. Well, that’s my reading of it, if you like.

Q. Well, it's your lay person’s reading; you’re not a lawyer, are you?

A. No.

Q. No, Mr Lew. So, so in terms of Regulation 12 was it your understanding

that it only applied to third parties because, you know, if it was a water

supplier and it was found that that Regulation applied then effectively

you’d have the water supplier notifying itself and because that’s the –


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that's what the condition requires and you’d have HB – it, it would also

have to notify the HBRC, so it seemed circular?


Q. So if I can now take you to the attachments to your first brief of

evidence. So just remind me about the timeframes when this was

happening? So you’ve got the appendices in front of you. If you need

it –

A. Yes.

Q. - to refresh your memory on the dates, Mr Lew. So can you tell me, you

were doing a lot of the work, so from – what – when did you actually

arrive at the Hawke's Bay Regional Council?

A. I think it was April of ’07.

Q. April of 2007. So was this one of the first things that you did?

A. Yes, absolutely. There were two matters that were very much at the

forefront in terms of legacy issues in the consents area and this was one

of them.

Q. Thank you.

A. Yes.

Q. So in terms of the work that went into that officer’s report, when was

most of that work done? Because my understanding is that the officer’s

report was completed and provided in April of 2008?

A. Yes, I think, I think there’s a – look, you’ll have to forgive me, I can't

quite recollect, but it's, it’s 10 or working days before the hearing or

something.

Q. All right.

A. So that’s the sort of timeframe and the hearing was in May.

Q. Yes.

A. But I, I, I do remember and it would have been in 2007 at some stage

'cos the, the officer’s report you don’t sort of sit down and write from

whoa-to-go, you know, often there are iterative things that, that get done

over month – over a series of months and I remember going through an

absolute mountain of files to try and get the history on this thing and that

was – would have been in 2007.and that probably culminated in the

background but section, I think it's 2.2 of the report, but then obviously


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as you get closer to the hearing you’ll find the officer’s report. So it

would have been over quite a length of time.

Q. So it must have culminated in April because if it's 10 working days, well

actually it might even have been May?

A. Yes.

Q. The actual hearing was on the 14th of May 2008 wasn't it?

A. Right so there is a requirement to pre-circulate the officer’s report and

the Act before the hearing.

Q. Yes and how long do the hearings take?

A. I think the hearing went through two days or something, from memory

yep.

Q. And then the hearing’s panel withdrew to consider the report, think

about the hearings and then come to a decision?

A. Yeah the typical practice is they don’t close the hearing, they adjourn

the hearing to deliberate and then they issue a decision and then they

close.

Q. So when was the permit actually granted?

A. My understanding is it was August of 2008.

Q. So were you aware that sometime between the hearing and the final

granting of the permit that the NES regulations came into effect?

A. Yeah I, yes and what I would say is I guess, look I don’t have a clear

recollection of this at the time but in hindsight my thought process today

would be I'm not sure that the hearing’s panel would have any

jurisdiction to consider the NES given they didn’t hear evidence on it in

May but look I would stand to be corrected on all of that by an eminent

RMA legal advice.

Q. Understood, so it is helpful for us, for me –

LEGAL DISCUSSION (12:32:21)

RE-EXAMINATION CONTINUES: MS CHENQ. So in terms of your approach to monitoring that you discussed before,

you talked about the risk-based approach?

A. Yes.


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Q. And so you did discuss with my friend what wasn't part of that approach

which was standard physical monitoring but you didn’t discuss with my

friend what was part of that approach. So do you want to discuss the

risk-based approach because you did talk about reports being sought

and reports going in?

A. Well first and foremost perhaps what I actually intended and perhaps it's

not adequately worded and I would accept that today in 2017 but my

intention under those sorts of standard conditions was to more

frequently gauge the rated measurement site on the Mangateretere

Stream to ensure the accuracy of those measurements because I

absolutely understood that as the flows dropped and the conservation

measures kicked in the imposition, both socially and economically on

the community and so it behoved the Regional Council to have as

accurate measurements at the site as possible and it was normal

practice under section 36 of the Act to recover those monitoring costs

where practicable from consent holders.

Q. So in terms of Mr Casey’s questioning about inspections and the

risk-based approach, do you want to describe how that happens

because my understanding is that you seeked data and they provided, I

mean, but can we hear it in your words, how do you carry out that

approach to properly carry out your role which is to monitor and ensure?

A. Yeah so on an annual basis there would be a compliance programme

worked up by the compliance team, there would be compliance officers

allocated to each consent and they would actually go through and agree

the compliance approach for the year and the work would be allocated

and tracked and there would be some thought given to high and

medium risk activities over low risk activities to focus the compliance

efforts. One, because no organisation has unlimited resources and,

two, we always had an eye on compliance costs which we didn’t want to

escalate compliance costs on low risk activities.

Q. And so in terms of higher-risk activities than lower-risk activities, I mean,

you know, you’ve had various questions including from the Chair about

water bores or water supplies taking –

A. Yes.


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Q. – taking water for drinking water. Do, do you always know which bores

are for drinking water? I mean, somebody might apply –

A. Yes, yes, yes.

Q. – but you do, you do?

A. Well, no – certainly we know which bores are used for drinking water for

municipal supplies because it's –

Q. Mhm.

A. – that’s part of the, the take. The difficulty is and this, this is really of

interest, I think, is that you can get a bore permit and if you fit under the

permitted activity rule for taking you don’t need a resource consent even

though you might be using that for drinking water for domestic supply.

THE COURT ADDRESSES MS CHEN (12:36:01) – CLARIFICATION POINT

JUSTICE STEVENS:Q. Would the bores that relate to drinking water be in the high risk

category?

A. If I, if I predicate the quest – the, the, the response to the question in

relation to municipal supply bores.

Q. Yes.

A. Then they should be, but in my mind the, the, the drinking water

standards and all the regulations around all that I guess I’ve thought

take primacy and that would take care of those matters.

Q. But we’re talking about the conditions that are imposed on consents.

A. Yes.

Q. And compliance.

A. Yes.

Q. Surely drinking water bores –

A. Yes.

Q. – would be in the high-risk category?

A. Yes, given, given the events of Havelock North and given the – what

I’ve heard in the last two days, I would absolutely accept that now Sir.

Q. Yes, but in terms of the Regional Council’s priorities, when you’re sitting

down at the beginning of the year and working out what you’re gonna do


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about individual consents, you give them out to the various compliance

officers –

A. Yes.

Q. – I mean, it's not very difficult for them to have done an inspection, is it?

A. In, in hindsight, around this matter, I would 100 percent agree Sir, yes.

Q. And indeed, especially as they said they would be.

A. Yes.

RE-EXAMINATION CONTINUES: MS CHENQ. So in terms of the risk-based approach, my understanding is that you

use telemetry data to essentially undertake the monitoring and figure out

if there’s a risk and then there’s a risk, then you send somebody out. Is

that they way it works?

A. Yeah, in, in relation to this resource consent, the key point of interest at

the time, notwithstanding, you know, what we know now, was really their

compliance with the rates of take and ensuring that they didn't exceed

that and given that the telemetry was recorded for Scada purposes for

their water supply purposes and water metres were required, it seemed

sensible to, to, to, to obtain that data for compliance purposes, indeed

efficient and effective way of that.

Q. So, so how often did that data come in so that you could be monitoring

it?

A. Oh, look, I, I cannot remember.

Q. Cannot remember?

A. I’m sorry, Ms Chen, yeah.

Q. All right. Then, then if I could take you to the officer’s report because

there, there’s a, there’s a comment that my friend Mr Casey took to you

to – on page 34 – and that was about the charges to HDC will be slightly

higher than previous consent –

A. Yes, yes.

Q. – due to the conditions and that was about the four times per annum just

to check, particularly on quantity?

A. Yes, to, to – for the rating, ah, the, the rating of the site.

Q. And so that was carried out?


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A. Ah, again, look, I, I can't remember the – yeah, that’s getting to a level

of detail that –

Q. But so that would be done by the enforcement people?

A. No, that would – the, the, the, the ratings of sites were done by the

field hydrologists.

Q. All right, okay. But there would be records that they’d, they’d, they’d –

A. Yes, there would be records.

Q. – done all of those things?

A. There would be records, yes.

Q. Right, okay.

A. Yes.

Q. Thank you. Now, now I’d like to take you back to CB77, that was the

Chris Noakes’ report by ESR. So my learned friend –

WITNESS REFERRED TO DOCUMENT CB77A. Oh, yes I recall it, yes, yes.

Q. – Mr Gedye took you there yesterday –

Q. Yes, yes.

Q. - and he said “were you familiar with it,” your answer was, “No, but

effectively we, we, we do the same thing, we do go through a procedure

with respect to the NES regs, but you didn't elaborate on what that

procedure was, Mr Lew. What, what was the procedure that you went

through to ensure compliance with the NES regs?

A. Yeah, look, in terms of virtually any significant resource consent

application, particularly for discharges actually, the

Hawkes Bay Regional Council, and indeed all Regional Councils, are

very disciplined in this area in that the consent officers administer the

consent process and pay attention to the Act and the statutory, you

know, regional plans and things but it's absolutely required and a matter

of absolute practice that scientific input from appropriately qualified

scientists are sought to ascertain whether the AEE is appropriate and

fully describes the effects and there's an audit function there and that

was routinely used in my time and in fact I introduced even a higher

discipline in that area to make sure that that technical input was being

obtained and that would then come back into the consent officer to do


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the officer’s report et cetera and if necessary, at a hearing the scientist

will be produced as an expert.

Q. Thank you. If I could take you, I'm sorry to be jumping around but I'm

just trying to address points that came up. Mr Gedye took you to

Regulation 7 yesterday and just asked for your pragmatic view because

you're a user, as in you have to use the Regs because they apply to

you. So I know you don’t have the Regulations in front of you but you

responded to a question that he asked. It was about whether or not

Regulation 7 was binary. So basically it says, “A Regional Council must

not grant a water permit or discharge permit for an activity that will occur

upstream of an abstraction point where the drinking water concerned

meets the health quality criteria, if the activity is likely to,” and I just want

to stress those words because you responded to his question by saying,

“Well, it's binary subject to one condition and that is that you can place

conditions on consents.”

A. Yes, that’s right. It’s, my view is it's binary if the conditions on the

consent cannot adequately avoid remedy or mitigate that likely effect.

Q. Right. So actually it's the conditions that address the words, “Is likely

to.” They address the likelihood of?

A. Yes.

Q. Right, and therefore if you can't use conditions to get the likelihood

down, then it's binary, no?

A. It's binary to say no, yes.

Q. Thank you. Then if I could take you, Mr Lew, to CB75.

WITNESS REFERRED TO CB75Q. And that’s about the user guidelines again. Now, there's a letter that

you will not have seen and I'll just get it up on my phone. This is just to

assist the Inquiry.

A. Yes.

Q. My friend, Ms Arapere, has very kindly gone back to the Ministry for the

Environment to figure out when precisely they did provide the user

guidelines to Regional Councils.

A. Yes, I'm curious to know.

Q. Yes.


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A. Yes.

Q. So there's a letter and let me just see if I can open it and I'm sorry that

you don’t have it in front of you, but actually, it's dated the

16th of June 2009.

A. Right.

Q. And it's addressed to Mr Murray Buchanan.

A. Okay.

Q. Group manager, Environmental Hawkes Bay Regional Council.

A. Yes.

Q. And it says, “Dear Murray, the draft Users’ Guide for the National, for

the NES,” blah, blah, blah, “Is now available. Copies are enclosed for

distribution to your planning and resource consent staff. Additional hard

copies,” blah, “The current version is in draft. Comments and

suggestions welcome,” and then that’s it. “If you have any queries.” So

what do you think happened? It's signed off by Glen Wigley, Manager,

Environmental Standards MFE.

A. I reported to Mr Buchanan at the time. It may be that he deemed it

more appropriate that any comments on the draft be carried out by the

policy team rather than the consents team but, look, that’s because I

don’t have any recollection of seeing this but I could be wrong in that.

Q. All right. Thank you.

A. But in any case, because up until when I left in 2011, I had no cause for

actually using the National Environmental Standard, you know, it may

not have been on my radar anyway.

Q. Thank you.

A. Yes.

Q. So my friend asked you a question about what happens when you don’t

want to use a bore anymore and you weren't clear in your recollection.

So can I just take you to CB number 166.

JUSTICE STEVENS TO MS CHEN:Q. This witness is not a lawyer.

A. No, that’s correct, which is the concern.


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Q. So realistically, how is this going to help us? You can make as many

submissions as you like, if it is appropriate –

A. I absolutely agree, Sir, so I sat here and listened to my friend take him

through a range of provisions in the Local Government Act and the

Resource Management Act.

Q. We can interpret the law.

A. Yes. I'm sure you can.

Q. And we can get assistance from experts like Mr Casey and yourself and

–

A. Yes.

Q. – all the counsel that are gathered here.

A. Yes. So I'm just responding to a question that Mr –

Q. You do not need to.

A. I'm not required to?

Q. You are not required to, so do not.

A. All right.

RE-EXAMINATION CONTINUES: MS CHENQ. Mr Casey raised an issue concerning the decommissioning of wells.

Are you familiar with Rules 3 and 4 of the RRMP that applies to the

Hawkes Bay Regional Council? Can I –

A. Could you remind me, please?

Q. Yes, it's in CB number 166.

WITNESS REFERRED TO CB166Q. It just might assist the Inquiry.

MR CASEY:Actually don’t want to make a big issue of it, Sir. I didn’t raise the issue about

decommissioning of wells. It was –

JUSTICE STEVENS:You did not.


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MR CASEY:– just about the cessation of drawing water.

JUSTICE STEVENS TO MS CHEN:Q. You are re-examining, so I mean –

A. I'm –

Q. We are not helped –

A. I agree, Sir, but my friend –

Q. But we are not being helped. Why are you persisting?

A. Because I'm concerned, Sir, that Mr Lew was taken through a series of

questions by Mr Casey where he was required to articulate the law and

I'm now trying to raise it and I'm not allowed to. So –

Q. Because any answers that he gave on the law will be treated in just that

way. He is not a legal expert.

A. No, Sir, he was not so I was surprised about the line of questioning.

Q. Well, why did you not object?

A. Because, Sir, my I –

Q. You do not need to.

A. I have found it very difficult to object but I will continue to try.

RE-EXAMINATION CONTINUES: MS CHENQ. So, Mr Lew, can I just ask you just a final question and the final question

relates to the side-agreement with Ngāti Kahungunu.

A. Yes.

Q. And with the 10-year limitation that was placed on the consent and I just

want to ask you this question because I thought it might assist the

Inquiry. You have now heard two days of the Inquiry because you have

sat through it and you've heard the testimony of Mr Chapman and

others about what has happened since the 2008 consent and if I take

you back to your evidence, you say in the officer’s report that one of the

things that you sought to do was to ensure that there would be an

analysis undertaken half way through the 10-year period to make sure

that alternative sources were being sought and I just wanted your

comment, given that one of the issues for the Inquiry is safe supply of


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drinking water in future and we've got a 2018 date expiry coming up.

Having sat through those, can you comment on the progress that HDC

has made to find an alternative water source?

A. No, I can't at all because obviously I don’t work for the Council anymore

but just to be helpful, it would be my expectation, if I was still in the seat

at Hawkes Bay Regional Council, that I would expect to receive quite

exhaustive and substantial water supply source investigations to find

alternative water sources to enable an exit, let alone a substantial

reduction intake from the Mangateretere Stream, as clearly was

envisaged by the resource consent. So you would have to ask other

witnesses from the Council whether that was complied with.

JUSTICE STEVENS:Q. From the District Council?

A. From the District Council, yes.

Q. That is exactly right.

MR WILSON:Q. Mr Lew I'm interested in the geomorphology of the

Mangateretere Stream, I'm not sure if you’re the – and by

geomorphology I mean its geological history in terms of how it was

formed. I'm not sure if you’re the person to whom this question should

be directed but I note in your evidence that you attach a summary of the

submissions that were received and that there's a submission there

from Messrs Jones and Cooper, it's on page 9 of the report in your

evidence. So this is appendix A, it's you’re assessment of the resource

consent application?

A. Yes.

Q. The statement here that says, “The Mangateretere Stream is not a

natural waterway, it was dug by landowners in the 1880s”?

A. Yes.

Q. Do you know if that was ever, that assertion was ever investigated?


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A. Yeah, I was interested in this actually and I took some advice from a

Mr Gary Clode who is the head of the river engineering department at

Hawke's Bay Regional Council and he confirmed that actually yeah.

Q. So my interest in it is this and again I'm not sure whether or not you’re

the right person to ask the question of. But is it understood how the

materials that make up the aquitard were deposited, I would anticipate

there's two principal options, one would be that they're alluvial deposits

that were laid down during periods of flood and the other is that they

would be wind borne deposits, a lois, that was laid down during a

period. If it were the former one would anticipate that you’ve got a

relatively horizontal bands of the material. If it were the latter you may

anticipate that the lois might fall on existing landforms. In, regardless of

how it formed we now know that it's a relatively shallow and very narrow

aquitard in that particular area. If the stream was in fact cut it's likely to

represent a higher risk of penetration through the aquifer than if it hadn't

been cut, indeed if that stream were to be cut today there would clearly

have been a requirement for a resource consent to do so?

A. I think that’s very insightful sir and I completely agree and I've thought

about these things, you know, at the time. If I might respond. So an

aquitard is something that retards but doesn’t preclude downward

movement from the surface of water, that’s an aquiclude so it was

always accepted and as we’ve heard in the last two days we’re dealing

with an aquitard here, not an aquiclude and the, this matter was

traversed at the hearing actually and that’s why the label of

“semi-confined” was assigned to the over aquifer but it was well

understood at the time that the two to three metres of silt overlying the

aquifer was at times that amount and other times it was a lot, lot thinner

and even at times non-existent. And in relation to the deepening of the

stream it was thought that that actually had cut down through that layer

and actually breached it and that’s why the whole semi-confined sort of

label was given holistically to the Te Mata groundwater zone and not a

confined aquifer system and that was being discussed in relation to all

sorts of groundwater calculations of stream depletion and interference

drawdown on other bores which is a mandatory test to do and all those


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sorts of things. But in hindsight, you know, that’s quite a relevant matter

in terms of whether the supply is secure or not under the

Drinking Water Regulations.

Q. In terms of what was known or should have been known at the time,

you’re telling me that it was an understanding that there was a thinning

of the aquitard in the region of the Mangateretere Stream?

A. Yes that’s right and the other thing about, to understand about the

aquitard is it's not, it was never understood or known to be a tight set of

clays which would lead it to be more of an aquiclude rather than

aquitard, it had significant silt in it which, you know, resulted in some

leakage from above.

JUSTICE STEVENS:Q. Was there any evidence to counter that assertion that you’ve

summarised, that it was dug out?

A. I don’t think that was ever a matter of evidence at the hearing.

Q. Noting emerged to counter what you have summarised.

A. No.

Q. In the report?

A. Oh not in terms of the stream.

Q. No.

A. Certainly I think the other part of my explanation around the thinning of

the aquitard and non-existent places and that sort of thing. I think that

was reasonably accepted by the different experts but the formation, if I

can say, of the top end of the Mangateretere Stream because as the

Mangateretere goes down past Brookvale and goes down to

Napier/Thompson Roads and that I think it does go into more of a

natural channel that was there but yes that was just a bit of curiosity for

me really to understand this whole losing/gaining thing.

Q. Thank you, that is most helpful. So that brings us to the end of your

evidence. Thank you for responding to the subpoena and making

yourself available. You are now free to go and we appreciate your

coming.

A. Thank you.


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LEGAL DISCUSSION – PLANNING FOR WITNESSES

MR GEDYE:Next witness will be Mr Gordon. Thereafter we have Messrs Cook and Gass

who I think will be no more than 15 minutes each, possibly in total. And then

we had scheduled the two experts, or the two witnesses in relation to the

alarm situation, Mr Alers and Mr Tomkins. I don’t propose to question them

Sir, I had seen that as a matter for the parties to advance if they wished to.

They were scheduled for today and I assume they are available.

MR CASEY:Mr Tomkins has prepared a reply brief to Mr Alers and that has been

submitted, just earlier today. I would, in fairness, want Mr Alers to have the

opportunity to see that.

LEGAL DISCUSSION – COUNSEL - WITNESS ORDER

MS CHEN:There were some matters that Mr Lew wasn’t able to answer about specific

applications now that my learned friend Mr Gedye had put to him about recent

consents and he said, well that depends on, you would have to talk to Mr

Maxwell. So he doesn’t need to be called but if you do need any further facts,

I am simply offering to be helpful in making sure that tha can be provided to

you.

JUSTICE STEVENS:That is excellent, thank you. So Mr Maxwell you are excused and if we need

to hear from you any further, through counsel, you will be asked to provide

any necessary information.

MR GEDYE:Looking further into the day Sir it may be that we do make a lot of progress

quickly, there is one issue about whether Mr Baylis may, in fact need to be


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heard from. Unfortunately the Science Caucus, has come back, whether it is

fortunate or not, they have come back saying they can’t exclude the possibility

of a defect in the casing so I think that needs to be considered and the

question of whether we need to hear from Mr Baylis needs to be reviewed

now and if it is thought that we do, then maybe he could come back the day

after.

LEGAL DISCUSSION – DR GILPIN

COURT ADJOURNS: 1.03 PM


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COURT RESUMES: 2.02 PM

DOUGALL GORDON (AFFIRMED)

CROSS-EXAMINATION: MR GEDYEQ. Mr Gordon, are you the Principal Groundwater Scientist at

Hawke's Bay Regional Council?

A. Correct.

Q. Did you join the Regional Council in 2009?

A. Correct.

Q. I wonder if you could look at document 71 please in folder 3.

WITNESS REFERRED TO FOLDER 3 Q. On the second page of document 71 is an email from you dated

6 October 2015, do you have that?

A. 6th of October?

Q. Yes.

A. Correct.

Q. And we’ve heard earlier how you made this contact with Mr Stuijt on the

6th of October saying that you had heard that there had been an E.coli

non-compliance issue at Brookvale, correct?

A. Correct.

Q. You asked whether it was source water or reticulation, didn't you?

A. Yes.

Q. And you asked some other questions. Mr Gordon, why was it you from

the Regional Council who made this enquiry, as opposed to anyone

else?

A. Because I had seen the article in the paper and my manager had also

discussed it with me, he also saw the article and I understand that the

councillors were also taking a strong interest in groundwater so we

wanted to understand the issue a bit more.

Q. And when you say “your manager,” who was that?

A. Dr Swabey.


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Q. If you look at – just keep that open, but if you can go to folder 6 as well

and look at document 171.

WITNESS REFERRED TO FOLDER 6 Q. Which is a collection of news media articles, 171.

A. Oh, sorry.

Q. Should be volume 6 there and they’ve got the numbers on the spine.

A. Yep, got it.

1405

Q. If you can go to the last page of 171, please. Do you see there an

article headed up “5th of October Hawke's Bay Today Havelock North

supply hit by E.coli”? Third page in. Take your time, you’re on 171?

A. Sorry sir I've just got the wrong, there's so many articles in here,

“5th of October Hawke's Bay Today,” correct by Sophie Price.

Q. Yeah is that the article that you and Dr Swabey saw?

A. Correct.

Q. And am I right that you had a discussion with Dr Swabey and you and

he decided that you would contact the District Council to ask about this?

A. Correct.

Q. Did this contact take place pursuant to any protocol or system or was it

what you might say was an advertisement hoc and one-off type of

contact?

A. Yes I would say it was an ad hoc approach because of being a

groundwater scientist I was kind of interested to understand.

Q. Was there any interest by the enforcement division of the Regional

Council?

A. Not that I was aware of.

Q. Was there any interest by the people in the Regional Council who deal

with resource consents?

A. No not that I was aware of.

Q. So was the basis of the interest that there may be an issue with the

groundwater and you wanted to know about that?

A. Correct, I just wanted to understand it yes.

Q. You stated in document 71, don’t you, “The reason I ask is we want to

be prepared to answer questions about this issue that may or may not


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come up in the next council committee meeting. Several of our

councillors have been taking a strong interest in groundwater resources

which is great.” So was your reason for communicating primarily driven

by having something to tell the councillors if they raised it?

A. Yes it was partly that, it was firstly to kind of understand the issue and

then to feed that information up to the council if they were enquiring

about it and asked us whether they – we had any knowledge of it.

Q. You also say in this email, “We are seeking to garner a bit of basic

information from you about the 2013 non-compliance and exactly when

and where was it.” What prompted your enquiry about a 2013 incident?

A. I believe it was stated in the article Mr Gedye.

Q. Who was the CEO at the Regional Council at this time in October ’15?

A. I believe it was Liz Lambert as acting, not acting but interim

Chief Executive.

Q. If we look at the first sheet of document 71 we see that Mr Stuijt

responded to you on the 12th of October didn’t he, six days later?

A. Correct.

Q. I take it that you didn’t see any urgency applying to this enquiry of yours

at the time?

A. Absolutely, there didn’t seem to be any urgency on Mr Stuijt’s part.

Q. Well you hadn't chased him up in the interim had you?

A. No I hadn't at all at that stage no.

Q. Just coming back briefly to your initial enquiry, was that in any way

influenced by the existence of the NES regulations?

A. No.

Q. Is that outside your field?

A. Yes it, my understanding it's something that the consents and policy

team deal with, my role is providing science advice to the policy and

consents team.

Q. So Mr Stuijt briefly told you that he thought they had contamination in

the number 3 bore, he also mentioned earthworks by the mushroom

farm and he also mentioned heavy rainfall, correct?

A. Correct.


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Q. And then on the next day, the 13th of October you responded to him

indicating that you had suspected that the mushroom farm might be the

prime suspect without knowing the detail of the activities which had

occurred at the site, right?

A. Correct.

Q. And you spoke of a personal incident where you were aware that the

mushroom farm was a pretty messy place, as you understood it?

A. That was from my wife’s experience at the site, yes.

Q. And you say that you’ve been making some initial enquiries with the

compliance Team to find out more about the activities going on at

Te Mata Mushrooms, right?

A. Correct.

Q. And you said, “I’ll get back to you with anymore information that might

come to hand.” So Mr Gordon, when you got Hastings District Council’s

response to you, who did you pass that to in the Regional Council or

what did you do with it?

A. At that stage, I had a c – informal conversation with some colleagues in

Compliance Team. I sent an email to Dr – Mr Alebardi asking him if he

knew anything about it. I think that was, that was in the interim, I think,

between the 12th and 13th of October – sorry.

Q. We don’t need too much precision about timing.

A. Yeah.

Q. But when you say “compliance team,” was your focus on whether there

was some breach by Te Mata Mushrooms in their operation or are you

talking about compliance by the District Council, or both?

A. It was just to find out a bit more about the activities at the site.

Q. At the mushroom farm site?

A. Yes.

Q. You had been – you’d become aware that there was E.coli

contamination at bore 3 and you’d been told that they hadn’t determined

the exact cause although there were some suspicions. Did the

Regional Council in October or November 2015 pursue the question of

possible aquifer contamination underneath bore 3?


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A. No, because my understanding was that Tonkin & Taylor had been

engaged by the Hastings District Council at that stage.

Q. Yes, Mr Stuijt’s letter says, “We’re looking to engage them,” doesn’t it.

Did you find out that they had actually engaged them?

A. No.

Q. But was it your position that the Regional Council was happy to take a

back seat given that the District Council had employed consultants to

look into the matter?

A. My understanding at the time was that as the Water Supply Authority

they were conducting investigations into the issue of the contamination

around bore 3.

Q. Weren’t you quite alarmed at the prospect that there may be

contamination in the aquifer?

A. I was concerned. But we get minor contamination in, in wells across the

region. However, at that stage my understanding from Mr Stuijt was

that the bore was shut down and wasn’t part of the supply and,

secondly, BV1 and 2 were being used instead and he indicated to me in,

in the email correspondence that those two wells were clear and, thirdly,

there was chlorination in place so I felt that at that time from a drinking

water supply perspective, Mr Dylan had taken the right actions –

Mr Stuijt, sorry.

Q. That may be the case for drinking water, but it's the Regional Council’s

responsibility to worry about the aquifer itself, isn’t it?

A. Correct.

Q. In fact, much of your work is aimed at detecting and stopping

contamination of the aquifer, isn’t it?

A. My work focuses on understanding the nature of the water quality in the

aquifer system and there are policies and procedures in our – I

understand in, in our regulatory processes to manage contamination.

Q. Yes, when I said “your work,” I should have said the Regional Council’s

work. Much of the Regional Council’s work is to detect and prevent and,

if necessary, action with contamination of groundwater isn’t it?


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A. Our policies are for environmental benefit, environment purposes, are to

– the policies need to protect – I understand the policies need to protect

groundwater quality.

Q. All right. Well, am I correct to say that you got this brief information from

Mr Stuijt and decided that you didn’t need to take it any further at that

stage within the Regional Council?

A. At that stage.

Q. Did the compliance team go out and start investigating

Te Mata Mushrooms’ activities?

A. Not to my knowledge.

Q. Did you have any internal communications or meetings within different

parts of the Regional Council about this incident at bore 3?

A. Only informal conversations with compliance staff.

Q. And did you report this to Dr Swabey?

A. Not at that time, no.

Q. Did he not follow up the original interest in a potential groundwater

contamination issue?

A. Not that I recall, no.

Q. Can we go to document 66 now, Mr Gordon? And as we have heard,

as part of your SOE monitoring, you detected elevated E. coli levels in

test bore 10496 on the 2nd and again on the 14th of December 2015,

right?


Q. Can I just pause there to ask to go back to the October incident when

you had that exchange with Mr Stuijt, did you determine at that point in

October that you should go and look at test bore 10496 to see whether

that was manifesting any E. coli or other issues?

A. Not that I recall. However, I was, had an understanding of the nature of

the SOE programme and 10496 was part of our reporting and we’d

previously reported that there was some minor levels of E. coli in bore

10496.

Q. What I'm putting to you is that on the 12th of October, Mr Stuijt says,

“Yes, we have found E. coli in bore 3 and we've shut it down.” Now,


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that must have told you that there was faecal material somewhere

around bore 3, right?

A. Potentially.

Q. Well, if you have E. coli, you have faecal material don’t you?

A. Correct.

Q. And test bore 10496 is about 220 metres away from bore 3?

A. I think it's in that vicinity, maybe 300 metres.

Q. Did it not cross your mind to go and check your own test bore

220 metres away and see what that looked like?

A. Not at that specific point in time.

Q. These results you got on the 2nd and 14th – well, the result you got on

the 2nd of December, was that a routine scheduled SOE?

A. Correct.

Q. How frequently did you test this test bore for E. coli?

A. We sampled it on a quarterly basis.

Q. And if you look at document 69. Is that a readout of the results of

sampling test bore 10496?

A. Correct.

Q. Was the previous sample test you took of that test bore on the

8th of September 2015?

A. Yes.

Q. And did that produce a less than one result for E. coli, CFU?

A. Correct.

Q. Per 100 mil?

A. Correct.

Q. And was the test before that the one done on the 3rd of July 2015?

A. Yes.

Q. And did that produce a reading of one CFU?

A. Correct.

Q. Which is a presence test, right?

A. Yes.

Q. Do you do presence-absence tests or do you enumerate?

A. We enumerate so the samples are cultured-up.


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Q. And if you go back before that 3rd July one, if you go back three

readings, on the 10th of September 2014, you got a reading of six CFU

E. coli didn’t you?

A. Correct.

Q. And on the reading before that on the 18 th of June, you had a reading of

16 CFU?

A. Correct.

Q. Coming back to document 66, do I take it that you went back and did the

14th December sampling because the 2nd had been elevated and you

wanted to do a second one to see what was going on?

A. Yes, the one we had in December was particularly high, much higher

than we’d ever previously had, so I wanted to understand at that point

my – I guess I was more heightened at that point that I detected, we’d

detected that 120, so that really raised my concern at that point and I

got the sample re-tested because I wanted to understand whether it was

a handling error and to confirm the results. So we, there's a two-week

turnaround for the lab and the time to, the technician to go out and

collect the sample, so some time would pass as part of our routine

monitoring and our usual lab contract to get it confirmed.

JUSTICE STEVENS:Q. When you say re-test, a different sample?

A. Yes. So we're collecting a whole new sample, yes.

CROSS-EXAMINATION CONTINUES: MR GEDYEQ. I think you were present yesterday I canvassed with – or the day before

I canvassed with Mr Chapman that the Regional Council had taken its

time to tell them about this result, and in fact told them only on

Christmas Eve but I understand you want to explain why it took between

the 2nd and the 14th respectively and Christmas Eve and that this

involved issues of the lab turnaround time and you being on leave and

so on. We don’t want all the detail but just skip through what the

reasons were why you didn’t advise them sooner.

A. I wanted to understand, confirm the result.


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Q. So that’s why you waited until the 14th one is it?

A. When we got the second result, correct, but that sample was collected

on the 14th, Mr Gedye, and I didn’t get the results until the 23rd, I think,

and I was on – sorry, 22nd of December and I was on leave at that point

and I came back in because I, now that it had been confirmed, to pass

that information on to Mr Stuijt. So I was wanting to pass that on as

soon as I could.

Q. So the timing –

A. So hence the reason is the Christmas Eve thing.

Q. Yeah, so the timing is just a function of turnaround time and being on

leave?

A. Absolutely.

Q. Did you not think with a result of 120, which is pretty high, that you

shouldn't make contact with the District Council straightaway just in

case?

A. No, not at that time. I was wanting to confirm the results because you

can sometimes get handling errors.

Q. In your mind, when you got the 2nd December result, which was

confirmed from the 14th December sampling, did you link in your mind

the fact that there had only a couple of months previously been a

contamination 220 metres away at bore 3? Did you identify in your mind

this was possibly linked?

A. The history of it always showed there was some very low contamination

and I was aware of that low level. I might add that the bore is in a

different aquifer to the water supply bores. It's in a very shallow

unconfined area of the aquifer. So my understanding at that point was

that it might not necessarily be linked.

Q. Is your knowledge of the structure of the aquifer between test bore

10496 and BV3 sufficiently good or accurate to be reassured that there

could be no connection between the two?

A. That was the reason why I elevated telling Mr Stuijt the information and

also my understanding is that that information would probably be

passed on to their consultant.


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Q. Well are you saying you accepted it was possible there'd be a sufficient

connection that there could be a problem with E. coli at test bore 10496

reaching bore 3?

A. It would be a theory and it would need to be fully investigated.

Q. You got a response the same day from Mr Stuijt, didn’t you, where he

says, well his first response was to send you a series of photographs of

unconsented earthworks carried out by Te Mata Mushrooms, right?

A. Correct.

Q. He asks you to pass these on to Mr Alebardi of your enforcement team,

right?

A. Correct.

Q. Because you had mentioned Mr Alebardi was following up your email?

A. Correct.

Q. Again was this contact advising a District Council of contamination event

near to a bore made on a one-off or ad hoc basis rather than pursuant

to any protocol?

A. It wasn't pursuant to any specific protocol of my understanding,

however, I guess exercising my concern I wanted to make sure that that

information was passed on to Mr Stuijt.

Q. Am I right that in your position at least there had been no system for

regular liaison with the District Council about aquifer issues and aquifer

risks prior to these two sets of emails we’ve been looking at?

A. Sorry can you repeat the question?

Q. In your position am I right that there had been no system for regular

liaison with the District Council about aquifer risk?

A. Yes that’s correct, from my perspective as a groundwater technical

expert, I'm not sure what happens at higher levels in the organisation.

Q. So that you had not been told about the July 2013 incident at

Anderson Park had you?


Q. When you asked about that in your October email were you given the

information you sought about that event? Remember you said, can you

all, “I'm trying to garner information about the 20913 event,” did you get

that?


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A. No I don’t think I got a full understanding of it at that point no.

Q. Well it's not in Mr Stuijt’s reply is it, he simply doesn’t mention 2013?

A. That’s correct, that was something that I learnt from the newspaper

article.

Q. Now am I right that neither in October nor in December did you go out

and meet with the District Council?


Q. If we got, if we proceed from these December emails after Christmas did

you attend a meeting with Tonkin and Taylor on the 12th of February?

A. That’s correct yes.

Q. Can we look at document 68 please? This document is Mr Cussins of

Tonkin and Taylor’s notes of the meeting and am I right that you have

agreed that this is representative of what happened at that meeting?

A. Correct.

Q. So from the Regional Council you and Mr Alebardi turned up?


Q. And one other officer, do you know who that was?

A. I understand that that was Mr Moffitt, a compliance officer, he was only

there for a short time and I vaguely recollect that he discussed issues of

the Te Mata.

Q. Is it right to say that with Messrs Alebardi and Moffitt there and what’s

said in these notes, that your predominant focus at the Regional Council

was on Te Mata Mushrooms and what had been going on there or

would that be an inaccurate assumption?

A. It was kind of, it was a range of issues, Te Mata’s was one of them. We

also discussed I think other bores in the area and I guess the key point

was being able to identify what bits of information would be useful for

the investigation and hence the agreed actions that I think Tony had

compiled and we responded to providing that information to assist, sorry

Mr Cussins at Tonkin & Taylor with his investigation.

Q. Well, by this stage, by February ’16, the Regional Council was aware of

an unsolved issue about bore 3’s contamination and it was also aware

of an issue about test bore 10496 showing abnormally high levels of

E.coli, wasn’t it?


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A. Yes.

Q. Did those two issues give rise to a more fundamental issue of what was

going on in your aquifer at – in that region?

A. We thought at that time that it was a localised issue rather than a wider

issue. My – I expressed my opinion on the wider aquifer in terms of the

SOE monitoring we have across the whole aquifer system, so the

information I had at that time was based on the SOE monitoring network

and there was no widespread contamination across the wider

Heretaunga Plains aquifer system, it seemed to be localised to bore –

the District Council bore.

Q. And the test bore, presumably?

A. Yes.

Q. Were you satisfied in your mind it was sufficiently localised that bores 1

and 2 would not be affected?

A. At that time, yes.

Q. It's the same aquifer underlying Brookvale Road, isn’t it?

A. Correct.

Q. One aquifer.

A. Yes, the Te Mata aquifer is around about 20 metres in depth. There is

also a deeper aquifer beneath that.

Q. At or about the time of this 12 February meeting, was this issue

concerning groundwater escalated within the Regional Council by you

reporting to your managers or by any other means of reporting

internally?

A. Only via the compliance team and discussions with the

compliance team and as elevated to – in my emails, I cc’d in the

manager of compliance, Mr Wayne Wright.

Q. What about your own groundwater area, was Dr Swabey not kept

informed of all this?

A. I don’t recall.

Q. Well, you’d certainly recall if there were meetings or meetings or

memoranda?

A. No, there was no meetings, per se, no, no.


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Q. Well, and would I be right to say you were relying on the fact that

Tonkin & Taylor were on the job?

A. That’s right. And I was also wanting to – I, I guess understand whether

– what our role would be and at that stage it was passing information to

Tonkin & Taylor and that is often the normal process in terms of

providing information to people who are undertaking investigations.

Q. But you had your own role as the guardian of the aquifer under the

Resource Management Act, didn't you? You had a very direct and self-

standing role in terms of finding out what was going on in the aquifer,

didn't you?

A. At that time, it would seem sensible to me that there was one

investigation with Mr, Mr Cussins doing the initial investigation.

Q. Well, after the August ’16 event, the Hawke's Bay Regional Council very

decisively conducted it's own investigation, didn't it?

A. Correct.

Q. And that included its own investigation of all of the District Council’s

infrastructure and bore works, didn't it?

A. Correct.

Q. So it's a big contrast, isn’t it, with the contamination found here in that

the regularly council was happy to take a back seat?

A. I guess at the time we were assisting the District Council by providing

our expertise and information with the investigation so it was a joint kind

of approach rather than running our own separate investigation.

Q. Were you concerned when Tonkin & Taylor had produced no report

throughout several further months in 2016?

A. Not at that stage, no. It did seem take quite a long time and I was very

surprised that it did take quite a long time.

Q. Well if you start with October 2015, when bore 3 was found, it took

some 10 months didn’t it, before Tonkin and Taylor produced even a

draft?

A. Correct.

Q. Did you at no stage try and hurry that process up?

A. I wasn’t responsible for engaging the consultant.


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Q. No but you were responsible for the state of groundwater in the aquifer

weren’t you?

A. In terms of understanding what might be going on, correct.

JUSTICE STEVENS:Q. Just looking back on it, with the benefit of hindsight, don’t you wish that

you had actually picked up the phone and said to Mr Stuijt, where the

hell is that report?

A. Correct, it would be – in hindsight knowing the full picture that we know

now, then it would have been useful to have given them a bit of a hurry

along.

Q. But you didn’t think to do that at the time?

A. No.

CROSS-EXAMINATION CONTINUES: MR GEDYEQ. Can I ask you to look at document 73 please Mr Gordon. Is this one of

the groundwater quality state of environment reports produced under

your auspices?

A. Correct.

Q. Is this the most recent one, dated September 2016?

A. Correct.

Q. Can we look at page 9 please. I think this is only an excerpt from the

whole report, but page 9 has the executive summary doesn’t it?

A. Correct.

Q. The first line says “Groundwater is used and relied on as a source for

drinking, industrial and irrigation and stock water supplies” right?

A. Yes.

Q. At the end of that paragraph it says, “This report describes the five year

state and 13 year trends for groundwater quality relative to the drinking

water and irrigation standards for 40 bore sites across the region.”

A. Correct.

Q. So by this time in 2016 you are specifically monitoring relative to

drinking water, I take it?


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A. I wouldn’t say relative. We used the Drinking Water Standard as a

benchmark along with the Irrigation Guidelines so we used that to

provide a benchmark for our monitoring.

Q. Well the next paragraph starts, “Monitoring data for the five year period

indicates that Hawke’s Bay aquifer systems are generally suitable for

drinking water supply for key chemical water quality parameters that are

in the DWSNZ except where they are affected by naturally occurring

iron manganese and hardness” And then you footnote the Drinking

Water Standards ’05.

A. Correct.

Q. So you are specifically commenting on the suitability for drinking water

aren’t you?

A. Only generally across the aquifer system.

Q. Yes. In the next paragraph it says, “In the last five years, 88% of sites

monitored were between 90% and 100% compliant with the limits for

DWSNZ Microbiological Indicator E.coli” and it goes on to discuss

elevated E.coli in the context of the DWSNZ doesn’t it?

A. Yes.

Q. Is the quite extensive reference to the suitability under the DWSNZ a

reflection of the existence of the NES Regulations and the Regional

Council’s council responsibility under the NES Regulations?

A. No, not specifically it is a benchmark to measure it’s general suitability

and in regard to policy as well.

Q. Well am I right that the existence or otherwise of E.coli is really only

relevant or primarily relevant to the question of drinking water. It doesn’t

worry irrigators does it?

A. No.

Q. It doesn’t worry industrial?

A. Depending on the type of industrial use.

Q. Can we look at page 36 of this report? At paragraph 6.2.10, you have a

specific section on E. coli don’t you?

A. Correct.

Q. And that is referenced to the DWSNZ provisions for microbiological

indicators isn't it?


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A. Correct.

Q. And it goes on to say that among other bores, 10496 had six detections.

A. In that period, correct.

Q. Yeah. And it concludes in the last sentence on the page as, “An

indication of the significance of the shallow depth, this monitoring bore

would not be suitable for use as the secure drinking water supply

because it's less than 10 metres deep.”

A. Correct.

Q. So again we're linking this to the Drinking Water Standards, correct?

A. Correct.

Q. And if we go to page 40, under 6.3.11, is there a table of microbiological

indicators E. coli and does that table link each bore to the question of

percentage compliance with the DWSNZ?

A. Yes. Perhaps I should explain that table a bit more. What I meant by

compliance is that we got detections. The Drinking Water Standards,

my understanding of the Drinking Water Standards is that you wouldn't

– you would have a much stricter monitoring regime if you were

implementing the Drinking Water Standards. So what I mean by that is

that you'd be testing much more regularly than just quarterly. This is an

overarching monitoring programme to understand the state of the

aquifer. It's not for specifically drinking water supplies because these

wells are monitoring wells. They're not drinking water supplies.

Q. Can I ask you to look over the page at page 41? At the top do you see

table 6.5, which is the proportion of sites complying with the DWSNZ for

microbiological indicator in the Ruataniwha aquifer system?

A. Correct.

Q. Would I be right, Mr Gordon, that the Regional Council in its SOE

monitoring programme has a wealth of information about E. coli in

groundwater generally?

A. Yes, we have general surveillance information on the aquifer, yes.

Q. From your point of view, do you accept it would be a good idea to share

that freely with the District Council water supplier?

A. Yes, and my understanding is that we provide copies of our reports

directly to the district councils in the region.


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Q. And would you have any difficulty with the idea of meeting on a periodic

basis to discuss them with the District Council?

A. Absolutely. I think that’s a very good thing that we should be doing

going forward.

Q. Have you in your own position had any issues which gave rise to

tension, frustration or annoyance with the District Council?

A. Not specifically personally to me. I have had a fairly good relationship

with the District Council staff. Dylan has – sorry.

JUSTICE STEVENS:Q. We know who you mean.

A. Yeah, sorry. I call him Dylan all the time, so, Mr Stuijt had a email

rapport with me, I guess, he sometimes emailed me for information,

which I provided to assist him in his role as the water supply manager. I

often, well, I can't say how frequently that was but I recall that he

requested information to me by email.

Q. Looking back on it now, would it have been helpful if the exchange of

emails and information gathered in October 2015 had been able to go

into a data or information gathering system relating to the state of the

aquifer?

A. I guess that would be one approach you could take, yes.

Q. Well, similarly, the E. coli findings in the bore 10496 in the December of

2015?

A. Correct but I would also just perhaps offer that we do put our results of

our monitoring online as well.

Q. Yes. I am thinking of a more formal system.

A. Right.

Q. That could be shared between the Regional Council and the

District Council and perhaps the drinking water assessors.

A. Yes, that would be helpful. I do agree. I would also suggest that if it's

specific monitoring specific to water supplies, then the, it would be best

if there was a specific monitoring programme set up for water supplies

beyond maybe just monitoring from the supply bore. So what I mean by

that is monitoring within the capture zone of the supply. So and that


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may require further monitoring scheduling to ensure that you pick up

things more quickly, so there might need to be a whole range of

monitoring systems put in place to, including a monitoring programme of

the appropriate frequency based on the hydrology of the aquifer system

so there's lots of information that would probably need to be compiled to

make that really useful.

Q. And in that information and data-sharing system, you would want to

make it quite clear about the information that appeared in this

groundwater quality state of the environment document that although

you relate it to the Drinking Water Standards, that that is on a

completely different cycle of testing, because it is not all that clear is it?

A. Well, our programme’s quite clear in that it's for quarterly monitoring for

the wider aquifer but it's not specific to address a drinking water supply

issue but it provides a good basis or background information for the

long-term sustainability, so for that state of the environment reporting,

we look at long-term trends.

CROSS-EXAMINATION CONTINUES: MR GEDYEQ. But in addition to your SOE programme, the Regional Council has

sundry knowledge about the catchment area doesn’t it? It has

knowledge about the Mangateretere Stream?

A. Yes, we have monitoring of the Mangateretere Stream. We've got a

flow site at the confluence of the Karamu.

Q. As a result of the August outbreak, there's been intensive study of the

catchment area hasn’t there?

A. Correct.

Q. And you will have read the briefs of Dr Hughes and Gyopari and other

experts?

A. Not in detail. Only cursory.

Q. But you're aware that as a result of all of this study, we now know

there's a hydraulic connection between the Mangateretere Pond and

Brookvale Bore 1?

A. Correct.

Q. And that the pond can be a losing pond with water travelling across?


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A. That’s my understanding, yes.

Q. So that’s an example of enhanced knowledge of this catchment area

isn't it?

A. Absolutely.

Q. Another area of interesting knowledge would be the amount of bores

around the catchment area?

A. Yes.

Q. These are not male pigs, these are pipes, Mr Gordon.

A. Sure, I understand what you meant.

Q. Do you know now much more about the number of bores in the area?

A. Absolutely and that required that quite detailed investigation at the field

kind of level.

MR WILSON:Q. I would like to ask you a few questions about those bores. Mr Gordon,

as I understand it, you regard what is referred to either as the

Te Mata aquifer or the Te Mata groundwater zone as a subset of the

larger aquifer that comes from the Tukituki aquifer. Is that the case?

1450

A. Yeah, the hydrogeology is quite complex, but my understanding is that

the, the shallow – shallower aquifer that the Brookvale Bores are in is

part of a geological formation from the Tukituki River system and that

deposited a, I guess if you like, a tongue, a tongue of gravel. Below

that, there is a, a, a, a, a deeper aquifer system which is likely to be

inter-fingered with the deeper Heretaunga Plains aquifer system.

Q. So where as this is referred to as the Te Mata groundwater zone, it's

more correctly called the Tukituki groundwater zone?

A. Yes, there, there – there’s been a bit of confusion about the naming of

these things. I guess, the earlier nomenclature referred to it as the

Tukituki aquifer system and that goes back to a report that the Regional

Council produced in 1997 on the Heretaunga Plains. The zone refers to

the consent zone called the Te Mata Consent Area Zone and those

zones are based on the administrative allocation of groundwater per se.


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Q. Okay, so let's call it the Te Mata groundwater zone. How many bores

are known to be in the Te Mata groundwater zone?

A. I’m sorry, I don’t have that information at the top of my head, but I

understand that that has been compiled.

Q. I, I seem to remember reading it's in the order of 140 or something in

that order, does that sound reasonable – likely?

A. Yeah, it's likely to be in that, in that order, yes.

Q. How complete is that likely to be? I mean, what's your confidence that

you’ve got every bore including historic bores on your records?

A. For the wider database of our bores?

Q. For the Tukituki – on the gr – Te Mata groundwater zone?

A. I, I don’t think I can comment on that because I haven’t been party to the

investigations, but my understanding is that there’s been some field

work to, to explore the issue and I think it probably best a question

addressed to Dr Swabey.

Q. My, my interest is in if you are the, as Mr Gedye has recalled you, the

guardians of the aquifer, I would have thought that long before this

incident you would have wished to understand the number of

penetrations into the aquifer?

A. My knowledge – there’s, there’s thousands of bores on the Heretaunga

Plains. I couldn't tell you specifically off the top of my head how many

are in that zone right now, I’m sorry, Mr Wilson.

Q. Sorry, the question is what confidence do you have that the

Regional Council has a comprehensive understanding of the, of the

number of bores that penetrate into the aquifer, as an organisation?

A. There’s certainly there’s some historic bores that we come across and

as a result of our field work and that as a result of the consenting

process, so I’m reasonably confident we’ve got a fairly good grasp on

the, the context of the, the wells now. Probably couldn't put a figure on

it, but since we’ve had a, a more RMA approach – prior to that there

was some historic wells which he were always gonna miss out on

because they didn't go through a regulatory process – but certainly the

wells that are drilled that have been applied for under the resource

consent or w – bore permit, if you like – I mean, there might be wells


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that, that have been put down illegally which is probably highly unlikely

considering we have a good relationship with the drilling companies in –

that work in this region. So –

Q. So, so we’ve got something in the order of 140 bores and we’ve got an

unknown confidence about whether or not that’s the, the – a good data

set or a subset of a data set for historic bores?

A. Yes.

Q. Can I take you please to the evidence of Mr Anthony Mananui, you’ll

find it in evidence folder, it's number 16, and in particular I want to take

you to the photograph booklet which is number 18.

WITNESS REFERRED TO DOCUMENT 16

THE COURT ADDRESSES WITNESS (14:54:46) – VOLUME 2

JUSTICE STEVENS:Q. First of all, have you read it?

A. No.

MR WILSON :Q. If I could take you to the third page, it's unnumbered but it's entitled,

“Four inquiries undertaken”?

A. Right I can see number 4 yep.

Q. You’ll see a date there on the 19 of August 2016, “Mr Mananui says that

he and a number of others set out and,” subsequently you’ll see if you

read this that he, they took a series of ground inspections and interviews

with a number of residents along Brookvale Road and in the general

area and he sets out what he found on each of those sites. I will take

you now to the photographs which is at tab 18. Have you got that?

A. Yes.

Q. If you go to photograph number 2 you will see this is an aerial

photograph of 163 Brookvale Road and you’ll see that there are two

bores noted, one noted, “Unsealed bore head near tin shed and one

unsealed bore head to pump in red tin shed,” and then if you turn over


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the page to page 4 you’ll see the red shed and then below that you’ll

see the pipe heading into the ground?

A. On page 4?

Q. On page 4 of the photographs?

A. Correct.

Q. And if you look at that photograph what’s your opinion of the adequacy

of the sealing of that bore head?

A. There appears to be a gap there, sir.

Q. And if you go to page 5 you’ll see it's entitled, “Tin shed/bores,” in fact

the index which is not here but the index reads, “Tin shed/board/times

two,” you’ll see the bore we were referring to before and another bore

closer to the camera?

A. Yes.

Q. And would you describe the one closest to the camera?

A. It doesn’t have a cap.

Q. At all?

A. By the looks of it yes.

Q. Can I now take you through to page 15, you’ll see this is an aerial

photograph of 184 Brookvale Road the paddock?

A. Which page was that sir?

Q. 15.

A. The aerial photograph yes.

Q. You’ll see some annotation there, “Large irrigation bore open bent bore

head, open steel bore head, open steel bore has cap but not secured?

A. I see.

Q. If you look carefully at that photograph you’ll actually see the pond that

we’ve been talking about during this inquiry and you can also make out

the shadow of the switch gear associated with BV1, you can clearly see

BV1 there as well.

A. Yes.

Q. Can you go to page 16, can you describe what you see there?

A. Bent over bore with appears to be a crack in it.

Q. And the top of it?

A. Oh, no cap.


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Q. And would you describe the ground around it in terms of what it looks

like?

A. There's vegetation.

Q. But would it be fair to say there's two types of vegetation, there's clearly

green vegetation some distance from the bore and the bore itself is

surrounded by vegetation that is, for some reason, discoloured perhaps

by an inundation of water?

A. Possibly but might also be spray perhaps.

Q. If you could take us to the next page, 17. Again can you describe to us

what you see there?

A. It looks like an open well.

Q. And page 18?

A. Yes a open well.

Q. And in the top photograph there, I appreciate this will be difficult but it’s

fair to say that it doesn’t appear to be far down to the water table, does

it?

A. Yes it may be – it looks like there is a pressure head there.

Q. But not up to ground level? Because it’s clearly not artesian, it’s not

overflowing?

A. Correct.

Q. Can I take you to page 19 now. And can you describe what you see

there?

A. The top photo has a cap and then the bottom photo has the cap off.

Q. But the top photo shows the cap secured with no bolts?

A. Oh yes, correct.

Q. So it’s just sitting there.

A. Yes.

Q. Can I take you to page 21 please. This is described in Mr Mananui’s

index as large irrigation bore and it is the irrigation bore shown on the

previous page. Roughly approximate where bore 1 is, you can see

there is a hose attached there to a bore and that the hose and the bore

are in an area that has clearly been inundated with water relatively

easily?

A. Correct.


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Q. And can I now take you to page 23. And can you describe what you see

there?

A. There appears to be a gap in the outer casing with the riser pipe.

Q. Page 24, now this is bore 10416, you can make out quite clearly the tag

number on it in the lower photograph?

A. Correct.

Q. Can you tell me how the top of that bore is secured?

A. That’s got a well cap bolt.

Q. So this photograph we understand was taken on the 15 th of August

2016?

A. Correct.

Q. Can I now just take you to page 26 and again is the aerial photograph

here of 237 Brookvale Road, it’s a bit difficult to make out on the

photograph but one of the red lines points to something called Wing Mill

bore and one is just small bore, and again you can make out bore 1, just

over the word “road”.

A. I can see Wing Mill bore and small bore.

Q. And you can see bore 1? On the road?

A. Oh yes, correct.

Q. If you go over to page 27, this is Mr Mananui’s photograph of what he

describes as small bore. And it has a loose cap on it which Mr Mananui

has removed by, presumably with his hands?

A. Presumably yes, it had a cap but he has removed it.

Q. And the last one in this series is page 30, which again if you would

describe what you see there?

A. It looks like the well rises going into something; I can’t tell what it is

though.

Q. It looks to me like a flanged casing that someone has then placed a

smaller bore pipe down through the centre of, but there is no secure

round the top and indeed Mr Mananui’s notes confirm that is the case.

Can I now take you to core bundle 79.

WITNESS REFERRED TO BUNDLE OF DOCUMENTS – 79Q. 79.1 in my version which has got track changes on it, it is on page 28 so

it may be on a different page.


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A. Sorry?

Q. 9.1.

A. And which tab is it sorry?

Q. Oh sorry it is on 79, core bundle 79, it is the Tonkin and Taylor

bacterial –

A. Sorry wrong bundle.

JUSTICE STEVENS:Q. It is in volume 4A Mr Gordon.

A. Thank you.

MR WILSON:Q. It's figure 39.1. It immediately follows paragraph 9.2. It's on page 28 in

the track changed version.

A. Yes, I see that.

Q. This is a photograph described by Mr Cussens, and I quote,

“Photograph of bore 10496 taken by Tonkin and Taylor on

29 September 2016.” So that’s five weeks after Mr Mananui took the

photograph.

A. Correct.

Q. Can you describe to me how the top of that bore is secured?

A. This bore was, had a water level logger in it and that’s why there was

tape put over it because there's a water level logger in the, inside the

well, so that was a temporary measure during the investigation. I

understand my colleague put that water level logger in the well.

Q. So there seems to be a logical explanation for what I would describe as

a temporary security of that well but do you have any reflection on the

risks that are presented to the aquifer by that litany of open and

insecure bores that I have just taken you through, all of which are within

close proximity to the Brookvale Bore Field?

A. It's very concerning.

Q. And of the 149 wells in the Te Mata groundwater zone, do we have any

idea of how many are in this condition?

A. No, I don’t.


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Q. Does anyone in the Regional Council?

A. Not to my knowledge.

Q. Should they?

A. Yes.

CROSS-EXAMINATION CONTINUES: MR GEDYEQ. Look at document 65 please, Mr Gordon, in bundle 3.

WITNESS REFERRED TO DOCUMENT 65 - BUNDLE 3A. Sorry, which on was it?

Q. 65. Volume 3.

A. Yes. CB75?

Q. 65. This is an email from Ian Inkson dated 8 August 2002. 65. Do you

have that there?

A. Yes.

Q. An email from Mr Inkson who's with the DHB to Tim Waugh, who at that

time was with the Regional Council. You have that there?

A. Yes.

Q. And you'll see that it attaches some photographs as well. You see that

under the address column at –

A. Yes.

Q. He says, “I wish to lay a complaint about a bore which in my

interpretation contravenes Rule 3 of the proposed plan, potentially

allowing leakage of contamination from the surface down through an

insure control cable duct.” And he describes the bore. He describes a

piece of bird faecal material 50 millimetres from the insecure cable duct

and he attaches over the page some photographs of this bore which he

says is insecure. Have you studied this recently?

A. No, not exactly familiar with it but it would appear that there's some

issues with this one.

Q. What I'm really putting to you is that 15 years ago, the scenarios

covered by Mr Wilson appeared to be much the same in the sense that

it was this bore which was insecure and which could potentially allow

contaminant into the aquifer. Do you see that?

A. Yeah.


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Q. Between 2002 and the present time, has there been any programme

within the Regional Council to address insecure bores in the area

around Brookvale Road?

A. Not to my knowledge. I have been at the Regional Council since 2009.

Q. Mr Inkson says that this insecure bore contravenes Rule 3 – and I

confess I'm not sure what Rule that is – but is there a Rule which says

that you must not have open or insecure bores going into the aquifer?

A. Yes.

Q. And the Regional Council has the power to enforce that Rule, doesn’t it?

A. Correct.

Q. It has a responsibility to enforce it, doesn’t it?

A. Correct.

Q. So what is the Regional Council doing today about all the bores that are

or may be insecure around Brookvale Road?

A. Mr Gedye, it's outside my domain in terms of the compliance, I’m sorry.

So much of this is sort of outside my, my realm as compliance –

Q. Well, please tell us whose domain it falls within?

A. It would fall under perhaps the consents and compliance areas,

particularly the compliance.

Q. Who’s the head of that section at the moment?

A. Of compliance?

Q. Yes.

A. Mr Wright.

Q. And who else is in that section?

A. Mr Alebardi and there’s another team leader as well.

Q. Who does Mr Wright report to?

A. Mr Maxwell.

Q. Well, can we leave this topic on the basis that you personally as a

groundwater scientist are concerned at these open pipes?

A. I am concerned.

Q. And would you agree something should be done about it?

A. Absolutely. Can –


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JUSTICE STEVENS:Q. Is - how do you rate your level of concern?

A. Very high.

Q. It's shocking, isn’t it?

A. Absolutely. My understanding is that there is a lot of responsibility put

onto the well owners to ensure they comply with the conditions.

Q. Well, true, but then who checks that those responsibilities are being

met?

A. Correct, yes.

Q. It's the Regional Council’s job, isn’t it?

A. Correct.

MR WILSON:Q. And since at least August of last year, the Regional Council has been

aware of these bores because Mr Mananui’s photographs have been

available and it would appear to me that there’s been nothing done

about them. I'm not aware of any letter of concern, abatement notice or

prosecution that has been suggested in the case of any of them.

A. I'm not personally have that knowledge Sir.

CROSS-EXAMINATION: MR CASEYQ. Just very briefly, Mr Gordon, you’ve referred to the file note that was

made by Mr Cussins of your meeting in February last year.

A. Right, um, which, which –

Q. No, you don’t need to – I won't take you to the note.

A. Oh, sorry. Right.

Q. But in paragraph 30 of your evidence you say, “I note that this file note

was not sent to me following the meeting.”

A. Yes, that's correct.

Q. Yes. And Mr Alebardi uses the very same sentence in his evidence, “I

note that this file note was not sent to me following the meeting.”

A. Correct.

Q. Were you told that that was an important statement to put into your

evidence?


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A. Yes, because we – neither of us had any understanding of – there was

just passing of information to Mr Cussins, there was no follow-up record

of it from, from the discussion.

Q. You’re not critical of Mr Cussins for making a file note, are you?

A. No, not at all. It –

Q. No. Well, can I ask the question, did you make a file note?

A. I had a couple of notes in my notebook, yes.

Q. Did Mr Alebardi make a file note?

A. Yes.

Q. And did you sent those to Mr Cussins?

A. Not that I recall except for following up responses to my file notes to his

requests so I had a number of key points of information that he needed

so I just provided that.

Q. Now in paragraph 26 of your evidence, you talk about the detections of

E.coli in the monitoring bore 10496 in December. You said to my

learned friend Mr Gedye that you didn’t tell Mr Stuijt about it because

the 120 seemed like it might have been an error, is that right?

A. Yes.

Q. You could have told Mr Stuijt that there was that reading but you were

getting it re-checked, couldn’t you?

A. Yes I could have done that. That was another option that I could have

taken at the time.

Q. Then you say that the re-testing showed that the E.coli levels had

subsided but were still slightly elevated. You mean just slightly more

than the 16 that was perhaps an earlier test or slightly more than zero?

A. Within that range, within the range of the previous tests.

Q. The previous tests were between no detection and some years earlier,

16?

A. Yes.

Q. You were aware that any E.coli in the drinking water is something that is

– I wouldn’t say – it’s a transgression under the Drinking Water

Standards I think we call it?

A. Sorry?


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Q. Any detection of E.coli in the drinking water is something that has to be

reported, is of concern, were you aware of that?

A. In the Drinking Water Standards?

Q. Yes.

A. For a water supply bore?

Q. No in the drinking water that the community receives. Any detection of

E.coli is of concern?

A. Well the drinking water that the community receives which is from the

municipal supply.

Q. So is there a different measure for the acceptability of E.coli in the

groundwater?

A. If it is being used for water supply?

Q. No, if you detect E.coli in the groundwater, what is that telling you?

A. It is telling us that there is potential for faecal contamination.

Q. Potential or actual?

A. Actual, sorry.

Q. So any detection of E.coli tells you that there is faecal contamination in

that groundwater?

A. At that particular point in time.

Q. I am not sure, Mr Gordon, I understand the relevance of that question,

sorry that answer. What do you mean by, “At that particular point in

time.” Do you mean there won’t have been any five minutes earlier and

there won’t be any five minutes later?

A. Oh sorry what I meant was when that sample was taken, it was

detected.

Q. Yes. So again are you telling me that it wouldn’t have been there any

earlier than when the sample was taken and it won’t be there later?

A. Potentially you could have a positive test and then later when you

re-sampled you could have a negative test. My understanding of

bacteria is that they can be filtered out by groundwater, in the

groundwater aquifer system and so you can sometimes get quite a

range in results. I can perhaps draw your attention to my report where I

document that, that at a national level there is about 30 – I think it was

30% of sites across New Zealand had detections of E.coli and I am


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aware of another report by Environment Canterbury where they quite

frequently found detections of E.coli in groundwater and particularly

shallow groundwater I might add, shallow wells. So it is quite common

to see E.coli in shallow groundwater, it is not a unique, it is not a unique

phenomena, it happens quite often at very low levels.

MR WILSON:Q. What is your definition of shallow groundwater?

A. Around the sort of 10 metre range, 10-20 metre range.

Q. So well within the range of the bores that are at Brookvale Road?

A. Yes I believe so and the Environment Canterbury that I have sighted,

certainly showed that there was sometimes transgressions and

shallower parts of an aquifer system so hence the need I think that

vigilance around drinking water supplies, because it's a sort of, it seems

to be a naturally occurring phenomena to see E. coli in shallow

groundwater.

Q. Now the report that you’ve just referred to, is that the SOE report that

we were talking about earlier?

A. Yes that describes the three wells where we saw it but also I make

comment on a national report by GNS Science from 2008 where they

document from their analysis that there was E. coli contamination from

the monitoring networks. Perhaps I can try and find that reference if you

like.

Q. I was going to ask you some other questions about it but that’s helpful.

But the report itself is at document 73?

A. The same volume. I hope I can find the right spot where that is

mentioned.

Q. I understand –

A. I'm sorry it's on page 68, it's near the bottom of, I think it's about

paragraph 6 sir. I comment that, “17% of sites (inaudible 15:21:59),”

sorry that’s nitrate sorry.

Q. Can I perhaps take you to page 9 of the report which talks about E. coli

in the third paragraph of the executive summary?

A. Sorry sir?


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Q. Page 9 of your report which is the executive summary, the

third paragraph is the discussion of E. coli if that’s what you’re looking

for?

A. Oh, great thank you. Perfect. So yes, “17% of sites,” that’s nitrate isn't

it?

Q. No, no the third paragraph down?

A. Sorry third paragraph, yeah I'm getting confused. Yes 8% of the sites

have that non-compliance based on our quarterly monitoring.

Q. Now I was just going to ask you a couple of questions in addition to

what my learned friend Mr Gedye asked you. You said, it talks about

“Compliant with the limits for DWSNZ microbiological indicator E. coli.”

Now is it your understanding that any detection of E. coli is non-

compliant with DWS with the Drinking Water Standards?

A. Yes that’s correct.

Q. So what we’re really saying is that 88% of the sites monitored?

A. Were between 90% and 100% compliant, that’s based on our quarterly

monitoring here, mmm.

Q. I'm struggling to understand either there's E. coli present in which case

it's non-compliant or E. coli is absent so it's either 100% compliant or

zero compliant. If a site’s got E. coli it's non-compliant so how do you

get 90% compliant Mr Gordon, can you help us there?

Q. Oh, that was based on a range, so that was per site so how I did it was

each site had its own level of compliance for the period of time that we

were monitoring so it's kind of a, it was a way of trying to report the

results that kind of made sense. So what I meant by that is that for the

four samplings that we did were they, was there no detections, right and

if there was a detection then it would, the compliance would drop. So,

yeah sorry sir that’s perhaps a little but confusing how I have described

it. To give some indicating of the range or as I expressed earlier a

yardstick to kind of understand of the four samplings we do per year if

all four samples were less than one then it would 100% compliance but

if it was one result that had less than that, that’s why there’s a -

Q. Be 75 percent compliant?

A. Yes, that’s correct, 75 percent.


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CROSS-EXAMINATION CONTINUES: MR CASEYQ. So if we’ve got five years and four samples per year, that’s 20 samples?

A. Yes, it would depend on sometimes it wouldn't be exactly 20 so that’s

why the maths may appear a bit obscure is because there’s – if there’s

– it's where you, where you take the starting and end point and if there’s

additional samples that are put into the in – into the, into the

assessment like repeats, for example, the 10-0496, I did an initial – we

did an initial additional sampling because we wanted to confirm it and so

that would also be included so the, the numbers would be a little bit

different per site so that’s why it looks a little bit odd.

Q. Well, 10-0496 – 10496 would be a lot less than 90 percent compliant?

A. Absolutely. I think for that 5 year period I have 50 percent is, you know,

there was –

Q. So is that in the 12 percent, that isn’t the 88 percent?

A. Yes, that’s correct. Yeah, it was – is a way of expressing it 'cos there’s

no, there’s no given standard for these things in terms of reporting and

that was the, the approach that I took at the time to try and report it in a

way that was sort of tried to make sense of the, the data because it, it

was not for a drinking water purpose in terms of the, the Drinking Water

Standards, it was about reporting the data in the context of the State of

the Environment Monitoring.

Q. Can I, can I suggest to you, Mr Gordon, that it's an awfully confusing

way of expressing anything, but if it's not intended to give somebody

guidance about compliance with something like the Drinking Water

Standards, then what's it for?

A. It gives an indication of the level of con – any contamination across the

aquifer because I think it, it gives some indication.

Q. Oh, all right, thank you. Now –

A. That was my attempt to, to try and portray the data, sir.

JUSTICE STEVENS:Q. In hindsight, do you think there might have been better ways to have

expressed it?

A. Potentially, yes, we could look at that.


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Q. Yes.

A. Mhm.

Q. And again hindsight is a wonderful think.

A. Absolutely.

Q. But with all of these – you don’t call them “transgressions,” but all of

these E.coli readings, do you not think that there were at least orange if

not red flags that should have come into your mind or someone else’s

mind about the state of the aquifer?

A. No because we, we don’t sort of see wide-spread contamination. That

was, you know, overall, we s – we’re not seeing those sorts of trends.

Like it's the greater proportion of our monitoring is showing that there is

no problem, right? So the other portion of the equation here is trends

and that’s – there’s the state and we report the state as, well, how many

transgressions or what was the, the level of that parameter and for

E.coli, you’re right, it, it, it, it's a plus – it's a detect/non-detect – but we

also focus on other parameters which aren’t of that nature. For

example, nitrate which has a number of 11.3 in the Drinking Water

Standard, so we report how many results are half the MAV and, and

between half and non-compliant with the MAV, so it's a little bit easier, if

you like, to see the, the numbers come out of that reporting. And we

also look at trends. So for example E.coli the trends that I’ve reported

clearly indicate there’s no increasing trend, when you take a statistical

analysis for the data period. So when you get a result, sure, under the

Drinking Water Standards it would not comply, but the purpose of the

reporting is to give some yardstick in terms of what is the general state

of the aquifer and I can appreciate that, you know, the

Drinking Water Standard is very, very strict on that. It's quite clear but

the programme isn't specifically designed to measure the drinking water

standard per se. It's more of a surveillance-type general picture of the

aquifer. If we were to look at compliance with the

Drinking Water Standards, we would have to change our, sorry, Sir,

change our whole programme and that would request extensive

resources to sample every day the similar way, a similar fashion to a

drinking water supplier, so we have to kind of strike a balance, I guess,


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to understand the nature of the state and trends in the aquifer rather

than monitoring to a level which would be required for the Drinking

Water Standard and, Sir, I would also perhaps say that bore owners are

obliged, if they are using the well, to do their own surveillance for

domestic suppliers as well, so I understand the

Drinking Water Standards put that onus on the water users or domestic

users to do that. So it would be quite a different role for us to step into

that. So, yeah.

CROSS-EXAMINATION CONTINUES: MR CASEYQ. Well, thank you, Mr Gordon. Just one last point. The report doesn’t

seem, so far as I have been able to read it and I haven't read it all, to

discuss trends.

A. Yes.

Q. So we don’t know whether the 88% of 90 to 100 was better or worse as

the five-year period unfolded or since the last SOE report. We don’t see

any trending do we?

A. Well, what I've done in the report in detail is to discuss the analysis that

I did, looked at the trends in a statistical analysis using the long-term

dataset.

Q. Yes.

A. So for example, in 10496, if we turn to the appendix and report,

statistical analysis for the long-term period from 1999 to 2013 had no

statistically significant trend, right, and no environmental meaningful

trend and that’s based on a statistical approach that’s nationally been

developed as part of a reporting framework that we report to as part of

the National Environmental Reporting, so and that’s – perhaps I won't

go into the statistical nature of that but essentially we use a statistical

approach to look at trends that are specifically designed for

environmental reporting, rather than the Drinking Water Standard per se

in terms of if you're using the supply for a water quality, for a water

supplier.


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JUSTICE STEVENS:Q. Does water ageing come into the state of the environment?

A. Not specifically but the water ageing information would be useful to

understand the aquifer resource generally.

Q. It seems to me, just thinking about it as you have been talking about it,

that the developing information that we get from the advancing science

of water ageing, might be highly relevant to your long-term trends?

A. Absolutely, and also our monitoring, modelling work that we're

undertaking for the current plan change work for the tank,

Heretaunga Plains and I might also add, Sir, that we had engaged GNS

Science to do some water ageing work for us for that tank change

process. So Dr Arvay Wilkenstein at GNS has been engaged by us to

do that and we've sampled all of our monitoring network plus additional

bores to help us understand the dynamics of the aquifer system.

Q. Those samples are going to be water-aged, is that what –

A. Yes.

Q. – you are saying?

A. That’s correct. So we'll have a water-age information which will greatly

enhance our understanding of the transit times within the aquifer but

more importantly, we're using that information in our numerical

modelling of the aquifer system, which is currently under development.

Q. It may be the information that has come forward in this Inquiry from

GNS might be helpful.

A. Absolutely.

Q. If it's shared?

A. Yeah, yeah, that will certainly be the case, if it's shared then…

Q. On a reciprocal basis?

A. Absolutely Your Honour. The water ageing work is quite crucial to our

modelling science work and we’re using that, those traces if you like,

that GNS use for the water ageing work to help calibrate our numerical

modelling so that will be very useful not only for our process but also for

the District Council to get an understanding of the dynamics of the

aquasystem including the modelling here.


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CROSS-EXAMINATION CONTINUES: MR CASEYQ. I just come back to the question of trends and I think you answered that

question by saying you'd done an analysis of bore 10496?

A. Yes that’s correct.

Q. And you didn’t detect a trend, a statistical trend?


Q. If I take you to document 69 which is a record that we have of the

results from 10496 going back to June 2005?

WITNESS REFERRED TO DOCUMENT 69A. Sorry sir which tab, ah, yes got it yep.

Q. We see that back in 2005 there's virtually – well there were no detects

of E. coli and a couple of detects in the next couple of years. But by

2010 we’ve got detects of 14 so it's gone from almost nothing to 14?

A. Mmm.

Q. In the space of five years and in the following five years it's gone from

14 to 120 so every five years there seems to be an order of magnitude

increase and yet you say that’s not a statistical trend?

A. Not with the method that we have, we’re using that correct.

CROSS-EXAMINATION: MS RIDDER – NIL

CROSS-EXAMINATION: MS BRYANT – NIL

CROSS-EXAMINATION: MS HOLDERNESS – NIL

CROSS-EXAMINATION: MS ARAPERE – NIL

RE-EXAMINATION: MS CHENQ. So Mr Gordon, you were asked by Mr Wilson when he took you through

all of those photos what the Regional Council had done about all of

those bores that were insecure and you said that you thought nothing

had been done, is that right?

A. Yeah I'm not familiar with what’s going on in the other parts of council

I'm sorry.


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Q. Thank you so did you know that all of the insecure bores have actually

been repaired by Mr Russell Bayliss?

A. No I didn’t know, I'm sorry Your Honour I didn’t know that information. I

perhaps incorrectly answered I just –

Q. Thank you and when you were asked about the litany of insecure bores

by Mr Wilson and when you were asked, “Does anyone at the Regional

Council know about that,” you said, “No,” didn’t you?

A. Yeah I probably meant myself, apologies Your Honour I was thinking

about myself.

Q. Thank you I appreciate that because in order for those repairs to have

been made obviously people at the Regional Council did know to

undertake the repairs, is that right?

A. That’s my understanding now, I apologise Your Honour.

Q. Thank you and you were asked if the Regional Council did anything

concerning the high E. coli tests concerning 10496 and you said, “No,”

didn’t you?

A. I can't recall but –

Q. So did you know that Dr Swabey did take this matter further, he did

escalate it, he did do things, did you know that, no?

A. In terms of?

Q. Of the 10496 tests?

A. Yep. He did.

Q. Did you know that, so therefore you, you were saying you didn’t know is

that right Mr Gordon?

A. Yes that’s correct yes, yes.

Q. You didn’t know but there were others at the Regional Council who did

take it further, would it interest you to know that?

A. Yes it did.

Q. You didn’t know that did you?

A. No I didn’t know that sorry.

Q. And I'm sure Dr Swabey can attest to that when he's in the box. Now

you were asked by Mr Gedye, my learned friend Mr Gedye, if the

Regional Council was concerned because they now knew about the

high E. coli readings and on top of that there was no resolution from


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Tonkin and Taylor. So can I just take you to the document that my

friend took you to which is document 69, so it's CB69?

Q. And in CB69, that is the samples taken and the CFU's?

A. Correct.

Q. Is that correct good?

A. Yeah.

Q. So can we just go down that list because you will see, as my friend took

you through, that it did spike?

A. It spiked on the 2nd of December 2015, yes.

Q. That’s correct but on the 14th of the 12th that was when you got the

second test back. What did it say?

A. 20.

Q. Right and then on the 8th of March what did it say, of 2016?

A. Right since that time we haven’t detected any E.coli.

Q. So let’s be more precise shall we Mr Gordon. It says less than one CFU.

So can you explain to us what less than one CFU means, as a principal

scientist?

A. Sure it means that there was no detected E.coli.

Q. Right and on the 7th of the 6th of 2016, what was the result?

A. Less than one.

Q. And on the 18th of the 8th of 2016, what was the result? It was still less

than one wasn’t it Mr Gordon?

A. Yes, still less than one.

Q. In fact it has remained less than one?


Q. So at the moment there’s no evidence that there remains an E.coli

contamination issue of any significance in bore 10496, is that correct?


Q. And then if I could take you to the statement that my learned friend

Mr Casey put to you. He said, “Any E.coli in the bore is a transgression

under the DWSNZ” Is that right?

A. Sorry?

Q. Is that correct?

A. Yes.


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Q. But the 10496 is not a drinking water bore is it?


Q. It’s an SOE monitoring bore, is that correct?

A. Correct.

Q. And talking about this particular bore, 10496, you said that it is in a

different aquifer and it is in a shallow unconfined aquifer?

A. Correct.

Q. And it is very different from Brookvale 3. Can you elaborate on that, to

assist the Inquiry, to better understand what you mean by that?

A. What I mean by that is that the well is above the aquitard that has been

discussed in the Inquiry.

Q. So it’s very shallow isn’t it?

A. That’s right.

Q. So what is the depth of 10496?

A. 8.1 metres.

Q. And what is the depth of Brookvale 3?

A. I think it is in the vicinity of 20 metres.

Q. And what does that mean when you are talking about the transport of

bugs, E.coli between say 10496 and Brookvale 3. If they are very

different depths and in different aquifers?

JUSTICE STEVENS ADDRESSES MS CHEN:Q. I am not sure if he is qualified to comment on that.

A. Thank you Sir. Well I will just put it to him because he has made

comments about it.

Q. No he hasn’t made comments about transference.

A. No that’s true but maybe he could just comment on the shallow aquifer

and just help us to understand the fact that they are in different aquifers.

Q. We understand that. That’s not in dispute.

A. I think it is helpful though Sir for him to explain that, because there has

been quite a lot made in this Inquiry about the relationship between bore

10496 and Brookvale 3, so I think it is helpful.


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Q. Well they are near each other, that’s what been made of it. They are

225 mitres apart.

A. I understand that Sir. But I am just asking the principal groundwater

scientist at HBRC if it is significant that they are at very different depths.

Can I ask him that question?

Q. By all means.

RE-EXAMINATION CONTINUES: MS CHENQ. Could you answer that Mr Gordon?

A. Yes, that’s correct Ms Chen that the 10496 is in the water table aquifer

and it is unconfined and then there is an aquitard and my understanding

is the wells from Brookvale Road are in a deeper aquifer or productive

aquifer at that level and that any – there is unlikely to be any transports

between them because the bugs tend to die off and I understand that

Dr Gilpin is going to be covering the survivability of all of the bacteria, I

am not an expert in that area.

Q. No thank you. So you were asked about concern, not just because of

the positive readings but we have talked about that and then the other

issue was about the Tonkin and Taylor report. So let me just ask you

what happened because one of the issues that was raised was that after

the last email – and I think that Mr Gedye put that to Mr Stuijt yesterday

– that after the last email from you which said, “We’ll follow this up,” he

didn't hear further from you. So, I just want you to answer this question.

After you said to him, “My wife’s been there, she got mud on the car, I’m

worried about it, too, but I'm going to make some investigations and get

back to you,” what did you do after that, Mr Gordon?

A. I had a look at the – sorry, I’m just trying to think now – I sent an email

to Mike Alebardi asking him if he had heard about that and then also

following that I provided the data for bore 10496 to Mr Stuijt.

Q. Yes, but you also discussed with my learned friend Mr Gedye your

assistance to Tonkin & Taylor?

A. Correct.

Q. Right.


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A. I provided information in regard to our geological model that we

developed which was quite important piece of information that would

assist Mr Taylor.

Q. Mhm. You also discussed the fact that as the Water Supply Authority,

the HDC – Hastings District Council – had decided to undertake an

investigation.

A. Correct.

Q. So can I just ask you because obviously you had a level of comfort,

what is your understanding of how strict the Drinking Water Standards

are in terms of well head integrity versus what was in condition 21 of the

Brookvale consent water permit?

A. My understanding from a drinking water perspective there’d be – need

to be quite strict conditions compared to what would ordinarily be in any

condition from our – from the Regional Council’s perspective.

Q. So did that give you more comfort?

A. Absolutely.

Q. Right. And so just taking you now to CB66 just to look at some of the

correspondence of what you did do.

WITNESS REFERRED TO DOCUMENT CB66Q. It would be helpful just if you could go through these emails, in particular

and I don’t want to take up the time of the Inquiry, but just quickly

summarising, you provided a series of information to assist

Tonkin & Taylor, is that correct?


Q. Yes and what was that information, Mr Gordon?

JUSTICE STEVENS:No, look, Ms Chen, I, I, I am reluctant to interrupt, but this isn’t helping us. All

of the information is, is here.

LEGAL DISCUSSION JUSTICE STEVENS TO MS CHEN


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RE-EXAMINATION CONTINUES: MS CHENQ. So you talk about the measurement against the Drinking Water

Standards.

JUSTICE STEVENS ADDRESSES MS CHEN:Q. Look, and we’re not helped by that either because that’s not his area.

He is a groundwater scientist.

A. Thank you Sir, I’m specifically addressing comments made by my

learned friend Matt Casey. He has taken Mr Gordon to parts of the SOE

report where he refers to measurement against Drinking Water

Standards. Let's ask, ask him about that.

A. - they’ve just been through it.

RE-EXAMINATION CONTINUES: MS CHENQ. So can I take you back to the same place that Mr Casey just took you

and that was in the 2016 SOE report, if you could take a look at it and it

is CB number – CB73. And he took you to the chart where you were

discussing with him the appropriateness of the reporting that has been

done about compliance with the Drinking Water Standards.

A. Sorry, Ms Chen, which, which page?

Q. So I’m looking at page 36 which is where Mr Casey took you.

A. Right.

OBJECTION: MR CASEY (15:49:52) –TOOK HIM TO PAGE 9

RE-EXAMINATION CONTINUES: MS CHENQ. I think you were taken there also by Mr Gedye, but I can refer to – back

to Mr Casey.

JUSTICE STEVENS:Just ask your question.


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RE-EXAMINATION CONTINUES: MS CHENQ. Yes, and the question is, in terms of the Regional Council, can you

explain why you used the Drinking Water Standard benchmark to do

your reporting under the Resource Management Act, specifically on

SOE monitoring?

A. I use the Drinking Water Standard as a benchmark for our monitoring of

the resource.

JUSTICE STEVENS:Q. What was your answer?

A. I use the Drinking Water Standards Guideline as a benchmark for

assessing our data against.

RE-EXAMINATION CONTINUES: MS CHENQ. Thank you. And is that the only benchmark that’s used by the

Regional Council in its SOE monitoring or do you use other benchmarks

as well?

A. We also use the Irrigation Guidelines developed by the Australian and

New Zealand Environmental Council.

Q. And the purpose of this benchmarking in terms of your role in SOE

reporting is what, Mr Gordon?

A. It's to provide an understanding of the state of the aquifer.

Q. And then you were asked a question about water ageing by the Chair

and he said it would be helpful for you. Would it be helpful for you to

have water-ageing reports. Do you get this as a matter of routine when

the District Council gets water-ageing done?

A. No, not a matter of course, no.

Q. Have they offered it to you? Have you asked them for it?

A. I requested them to assist us in our studies of the Heretaunga Plains

aqua system.

JUSTICE STEVENS:Q. For the future?


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A. In this case it was specifically for our studies. It'd be useful to have

them regularly.

Q. Very well. Thank you very much indeed, Mr Gordon. That has been

most helpful. You are now free to go.

A. Thank you, Your Honour.

WITNESS EXCUSED


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JEFFERY COOKE (AFFIRMED)

CROSS-EXAMINATION: MR GEDYEQ. Mr Cooke, can you tell us what your position in the Regional Council

was between 2010 and the present time?

A. Between 2010 and mid-2014, I was compliance officer and senior

compliance, initially compliance officer and then moved into senior

compliance officer role and since then I've been data co-ordinator and

more recently become team leader for data management and

innovation.

Q. Was one of your responsibilities in 2010 to carry out compliance

monitoring in relation to the Hastings District Council consent over the

Brookvale Bores?

A. Yes, it was.

Q. You accept that compliance monitoring is a formal and serious process?

A. Yes.

Q. That it can result, in the case of non-compliance, to enforcement action?

A. Yes.

Q. And that that can include an infringement notice?

A. Yes.

Q. It can also include prosecution in the Court?

A. It can, among other things, yes.

Q. So you would accept that compliance monitoring should be accurate

and not misleading?

A. Yes.

Q. Could you look at document 12 in bundle 1 please?

Q. And do you see that that is a letter dated 14 December 2010 from you to

Mr Stuijt at the District Council?

A. Yes.

Q. And does that letter enclose a compliance monitoring report?

A. Yes.

Q. Which is found on the next pages?

A. Yeah.


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Q. If we look at the first page of the report, it states, doesn’t it, in the first

third, “24 November 2010, monitoring inspection. Officer Jeff Cooke.”

A. It does.

Q. Would you accept that the recipient of this document would take it from

that entry that you carried out a monitoring inspection on that date?

A. That I've undertaken monitoring yes, or I've generated the report on that

day but yeah.

Q. Well it says, “Monitoring inspection 24 November 2010,” doesn’t it?

A. It does, this is auto generated from our system and it's when the report

was written.

Q. Is it not saying that an inspection was carried out on that day?

A. Not necessarily, it usually is and it would be, it's the record was

generated on that date.

Q. Well did you carry out a monitoring inspection on the

24th of November 2010?

A. I, around that time I compl – well I completed the report on the

24th of November 2010 and I undertook the inspection of data and

monitoring around that time leading up to it immediately.

Q. This report then sets out each of the condition numbers in the consent

doesn’t it?

A. Yep.

Q. With a comment on each?

A. Yes.

Q. Can I take you to the end condition 21 which is the condition stating, “All

works and structures shall be maintained to a safe and serviceable

standard”?

A. Yep.

Q. And did you compile this part of the report which says, “Compliance

24 November ‘10”?

A. Yes I did. That was based on, that was an assumed compliance based

on no evidence to the contrary.

Q. Well why didn’t you put assumed compliance based on no evidence to

the contrary in the report?


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A. I can't recall it was an omission I guess at the time, with hindsight it

would have been a better response but I didn’t at the time.

Q. Well would you accept that the recipient of this report would go to 21

and see the words recited, see the notation compliance, see the date

and take from that the meaning that you inspected on the

24th of November and found it compliant on that date?

A. I can see how that would appear. Yeah, I can see how that would

appear to be taken from that although that wasn't entirely how it was.

Q. If you look at document 13 please?

JUSTICE STEVENS:Q. You said, “That’s not entirely how it was.” So how was it, what was it,

what was the true position?

A. The true position was the consent was monitored but it was monitored

more for a quantity purpose so we were assessing the quantity data

provided and the other 20 conditions relate to quantity effectively and

that was what the focus of the monitoring was. The final, that final

condition, I didn’t do a compliance inspection and that was –

Q. Did not do it, no?

A. I didn’t inspect the bore physically.

Q. So you have no knowledge whatsoever as to whether the works or

structures met that condition?

A. Not in.

Q. No actual –

A. Not directly, I've got knowledge in that the bore was working so

therefore I assumed that because the bore was operational then it met

the thing that it was serviceable and it had been designed and

constructed was before my time and safety I’d got no evidence to say it

was unsafe.

CROSS-EXAMINATION CONTINUES: MR GEDYE Q. Was this a council system under which it assumed safety and security in

the absence of any contrary report from the consent holder?


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A. Pretty much that was what we were looking for, either consent holder or

evidence from somewhere else that there was an issue that we needed

to investigate.

Q. Well on that basis why didn’t you simply assume that all conditions were

complied with absent contrary evidence from the consent holder?

A. We had evidence from the consent holder regarding the other conditions

and we had conditions within the consent that required them to provide

us information.

Q. So for some conditions you required proof from the consent holder but

for others or for the state of the bore you simply assumed in the

absence of contrary evidence that it was okay?

A. Yes.

Q. Look at document 13, is that a letter dated 23 March 2012 from you to

the Hastings District Council?

A. Yes it is.

Q. Is the attached report in a similar format to the one we’ve just looked at?

A. Yes.

Q. You’ll see on page 1 that the site address PWS Brookvale Road does

not this time contain an inspection date or a monitoring inspection and a

date, right?

A. Sorry, just – I’m just checking it against the other.

Q. First page should be crossed out, it relates to Bennett Road.

A. Sorry, which – where – what –

Q. Okay, document 13.

A. Yes.

Q. Starts with a letter from you 23 March ’12.

A. Yes.

Q. Turn over that page and ignore the back side of it and come to the next

leaf.

A. Yes.

Q. That should be your compliance monitoring report for Brookvale Road.

A. Yes, it is.

Q. This one doesn’t have an inspection date, does it, at the top?

A. It's –


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Q. It only has “monitoring report sent” date?

A. The – I see what you mean, the format is different because this – the

first one was effectively the first report on record that had that, whereas

this one has a previous statement of compliance and a statement of

compliance for the year 2011/2012 which does have the grade date.

Q. Right.

A. I believe it may – any differences may be a change within the system,

although the – yeah, I can't explain the difference between the two.

Q. All right, come to the –

A. And I haven’t noticed it before.

Q. – the last page, page 7 of 7. And we have the same words, don’t we,

only this time you have the previous ones and now the present ones.

So you have compliance 24 November ’10 and compliance 8 March ’12,

right?

A. Yes.

Q. Did that mean that on the 8th of March you carried out an inspection?

A. It meant that on the 8th of March I generated the report based on the

information provided prior to that date that had been assessed, but I

didn't physically inspect.

Q. Had you been provided with any information by Hastings District Council

about the safe and serviceable standard of the bores in Brookvale Road

as at the time this report was done?

A. Nothing other than that we had pumping information which gave an

indication that they were serviceable as they were pumping water.

Q. Would you accept that a pump can still function and pump water be –

but be unsafe for various reasons?

A. Potentially, yes.

Q. The fact that it's pumping and working doesn’t tell you anything about

the state of seal around the bore, the state of the casing, the state of the

glands and so-on, does it?

A. No.

Q. Would you look at document 14 and is the 2013 edition of your

compliance monitoring report?

A. Yes, it is.


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Q. On the first page relating to Brookvale Road, does it say, “6 June ’13

monitoring inspection”?

A. It does.

Q. Would you accept that the reasonable reader of this would take it from

that that an inspection had been carried out on 6 June ’13?

A. I can see where that would come from, yes.

Q. On the last page at condition 21 the wording now states, “Compliance

2nd May ’13” and this has been assumed compliant. What was the

reason for the change in wording?

A. Purely just trying to give more information around what was around the,

the reason for the grade instead of just leaving a – the left-hand column,

I guess, where the compliance is, is just a, a drop-down box. There,

there is a box for more information and I tried to be more helpful by

putting that in.

Q. Well, was this your attempt to say that you haven’t looked at it and you

don’t know, but you assume it's compliant?

A. Pretty much, yes.

Q. In hindsight, Mr Cooke, would you now accept it would have been better

to say, “We have not inspected this. We have no information that it is

non-compliant and on that basis we assume it is compliant”?

A. Yes, that would have been a much better explanation.

Q. Paragraph – document 15.

Q. The 2014 year was done by Mr Gass, but the reports in the same

format, isn’t it?

A. Yes.

Q. It – this one, I think, does not give an inspection date on the front but at

condition 21 it just repeats, “Assumed compliance 10 July ’14,” doesn’t

it?

A. Yes, it does.

OBJECTION: MS CHEN (16:05:01)


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MS CHEN:Sorry Sir, sorry Sir, Andrew Gass is going to be in the stand next so it might

be better to put to Andrew Gass his report that, that actually Mr Cooke doesn’t

know about, thank you.

JUSTICE STEVENS:I am sure Mr Gedye knows what he is doing.

CROSS-EXAMINATION CONTINUES: MR GEDYEQ. Am I right that for the entire period in which the compliance monitoring

division of the Regional Council produced these reports, no one from

the Regional Council went and looked at the bores?

A. I'm not aware of anyone visiting them, no.

Q. Did you ever go and visit the bores?

A. No.

Q. Did you ever obtain any report from anyone on the bores?

A. No, not that I'm aware of.

Q. Did you ever ask the District Council for any information about the state

and serviceability of the bores?

A. Not formally, no.

CROSS-EXAMINATION CONTINUES: MR CASEYQ. Mr Cooke, my learned friend, Mr Gedye, put to you a formula of words

that could have been used. Can I suggest a much simpler form of

words which would be “not assessed”?

A. I, my only disagreement with that was that while it may have taken a few

assumptions, having information regarding the pump and I took as being

evidence that they were serviceable and so therefore I had done some

form of assessment.

Q. Now, in fairness to you, the different conditions being described as

either environmental or technical, correct, and condition 21 was

described as a technical condition rather than an environmental one?

A. Yes, it is.

Q. And what did you understand the purpose of the condition to be?


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A. My understanding was that it was well, dual purpose in a way in that it

was an expectation for the consent holder to ensure that the bore was in

a safe and serviceable standard and built to a practice. Yeah, that was

pretty much it.

Q. Now, we've heard evidence that there would be meetings of presumably

the team that you were a member of, I gather each year, where you

would work out what the compliance monitoring programme would be

for the year?

A. We were given a programme of work for the year, yeah, so effectively

we gave a programme of work to monitor.

Q. And you would be given, I assume, a number of consents that were your

job to monitor?

A. Yes.

Q. And did you read the consents that you were monitoring?

A. Yes, and it were, prior to an inspection and during an inspection reading

the consents that we're monitoring, yes.

Q. And have you familiarised yourself with the consent that we're talking

about here today?

A. I've re-familiarised myself with it, yeah.

Q. And you were here when I asked Mr Lew a question about appendix 3

to the consent?

A. Yes.

Q. You're welcome to go to it if you're not familiar. It's at –

A. I'd prefer to have it in front of me.

Q. Yes, of course. It's in volume 1 of the bundle at document 5, which I

think is the same volume you’ve got in front of you.

A. Yeah.

Q. I'm sorry. I've misled you there. That was the report. It's at

document 6.

WITNESS REFERRED TO VOLUME 1 Q. The one I monitored is document 5. Document 6 is the second

installation of the consent.


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Q. Well, if we go then to appendix 3, which starts on page 10. And if you

go to page 13, which is the last page of that appendix and is reference

to condition number 21.

A. Yeah.

Q. And the reason for the condition?

A. “Ensure safety,” is what's written.

Q. And the determination of compliance?

A. Inspection by Council officers.

Q. Now, I gather from the answers that you’ve given to my learned friend

and also from your evidence that that never happened?

A. I didn’t physically inspect, no, and I believe, without rechecking all the

way through, that maybe the only condition that had an inspection

requirements, so I didn’t, yeah, need to for any of the other conditions.

JUSTICE STEVENS:Q. You are fading away there, Mr Cooke.

A. Sorry.

Q. We do want to hear what you are saying and there are people down the

back that might be interested.

A. Okay.

CROSS-EXAMINATION CONTINUES: MR CASEYQ. So just repeat your answer that you didn’t?

A. Try and remember it. As far, I think, without looking, that that was

probably the only condition that required inspection, that was down as

an inspection being the monitoring requirement. All the others were

available or able to be done by looking at the data that was provided.

Q. Now, I also had the impression from answers that Mr Lew gave that this

was a common condition, condition 21, in a number of consents,

particularly regarding bores?

A. Regarding water-takes, this condition or conditions similar to it are

common or, you know, generally on most of those consents, from

recollection.


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Q. And were a number of those consents also within the bundle that you

had to monitor for compliance for each year?

A. Yes, I had the Hastings District Council water-takes and at the time,

some non-metered water-takes that we were assessing to determine

whether they could comply with the consented rates and volumes.

Q. And on any of the other consents that you were monitoring, did you

undertake an inspection of the bore as part of your monitoring?

A. We undertook inspection of the site and that included the bore area for

the irrigation on the unmetered irrigation consents because we had to

make a determination of whether the infrastructure could comply with

the consent in the absence of a water meter to provide us any other

information.

Q. But did you at the same time inspect for compliance with the condition

that was similar to 21, if not the same?

A. Inspected for compliance for any obvious issues with regard to the bore

head works, yes.



RE-EXAMINATION: MS CHENQ. Hello, Mr Cooke. If I could just take you to your brief of evidence and if

you could turn to paragraph 11. Have you got that in front of you?

WITNESS REFERRED TO PARAGRAPH 11 OF BRIEF OF EVIDENCEA. I didn’t bring it up to the stand.

Q. You didn’t bring it up? Okay. Well, can we assist you? Thank you,

Mr Cooke. Could you go to paragraph 11 of your brief of evidence?

A. Yeah.

Q. Thank you. And so can you just explain to me here, because you’ve

just explained to my learned friend, Mr Gedye, that those dates are

when you generate the compliance report, this description of what it is

you do in order to prepare the report. So can you just explain to the

Inquiry what you do?


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A. Basically we take the information that had been provided by

Hastings District Council, which –

Q. And what sort of information is that, Mr Cooke?

A. I was just going to say that was a combination of the data regarding flow

and volume, any monitoring reports required at the time and the emails

that came with those monitoring reports, which may contain information

regarding if there were any discrepancies or issues that we needed to

be aware of and then compare those with the conditions of consent for

all of the Hastings water-takes and determine compliance with the

conditions of the consents.

Q. So how often do you get that information from Hastings District Council?

A. The information comes through monthly I believe.

Q. Right. So do you review them when it comes in monthly or do you do it

just all at once when you generate the report?

A. It's kind of a combination of the two. I probably give it a cursory glance

initially just to check that there was no gross issues regarding the main

issues we're aware of, that things seem to be tracking along okay and

there was nothing highlighted within the emails or if there were reports

that came in and then do a more formal assessment of all of the data in

bulk for the compliance reports.

1615

Q. Sure. So what do you mean by there's no gross issues? So for

example, what would you mean –

JUSTICE STEVENS:Just continue but I was just reading his brief here again. Paragraph 13, he

has recorded what he did and –

MS CHEN:He has.

JUSTICE STEVENS:And no one is taking any issue with that at all. What they are taking issue with

is the description in the report, namely assumed compliance.


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RE-EXAMINATION CONTINUES: MS CHENQ. So I'll just put to Mr Cooke the issue that Mr Casey just raised, which is

that what you meant to say was that it was not assessed at all. So

would you agree that this description is assessment?

A. Which, sorry, which description?

Q. The description of what it is you do to generate the report in your brief of

evidence?

A. Yes, that’s what I classed as assessment.

Q. So just going back to your description, you said that when there is gross

issue, unless you find a gross issue. So could you just describe that to

the Inquiry? What would a gross issue look like in terms of the data that

you receive monthly from Hastings District Council?

A. Or any other water-take really. We’d be looking for whether there were

breaches of flow rates or volume predominantly or any of the other

conditions of consents. Some of the conditions, there are other

conditions on other reports that may trigger that would give us an idea

that there was a problem with that or if reports hadn't been provided

when they were supposed to be provided or weren't, yeah, those are the

kinds of things that we're looking for, whether it wasn’t up to scratch.

Q. So if you did find that there was a gross issue, what would you do then,

Mr Cooke?

A. Contact. Depending what the issue was, it would depend who we’d

contact. We’d contact someone at HDC. If it was a, I guess, a

day-to-day operational thing, then I'd probably contact Matt Kersel.

Otherwise, initial contact would usually be Dillon. Occasionally it would

have been Brett but more than likely Dillon was first point of contact.

Q. And could that potentially result in you having to go out and do an

inspection or do you rely on the District Council to inspect their bores?

A. It would depend on what the issue was. Initial would be to try and get

an explanation from the District Council and if needs be, then we would

go out and do an inspection if it was warranted for whatever the issue

was.

Q. So have you ever had occasion, in your experience carrying out this

role, in the Brookvale Bores where you've had to contact Mr Stuijt or


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Mr Kersel? I don’t know if they were the officers during the time. I think

Mr Stuijt might have been but just to raise issues from the data that you

were reviewing?

A. We've had, there have been issues and I believe their documented in

compliance reports in other sections that haven't been discussed here.

Those would have been discussed with Hastings District Council prior to

the report being generated to make sure there was an understanding

and just to make sure that things had, try and, how do you call it, open

and frank that we would be letting them know before they got a letter in

the post that there was an issue we were chasing up and give them an

opportunity to either say no, you’ve got it wrong or to be aware that the

letter was coming.

Q. So how did you know if the risk-based approach which had been

adopted was working?

A. We’d know – well, the main focus was regarding the quantity of water

being taken or the rate of water being taken. We had no information

regarding that there was any issue with the quality side I guess, which is

what this is about.

Q. So you're talking about no information that there was a breach of

condition 21? Is that –

A. There was no information that there was an issue with water quality that

was aware of at the time.

Q. And what would you check to ensure that there wasn’t an issue with

water quality because there's a range of information coming into you

isn't there?

A. There's a range of information. Had nothing specific but I would have

expected if there was a problem with water quality, then it would have

been raised to say there's a problem and that there was an investigation

going or if they wanted information from the Council, then as a

compliance officer we're often the first port of contact for if they're

wanting information from other areas of Council.

Q. Right. And where would that information come from?


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JUSTICE STEVENS:Ms Chen, my understanding of the focus of the questions by Mr Gedye and

Mr Casey was around condition 21. You now take us on a completely

different tack.

MS CHEN:So my question was specifically about condition 21 and I –

JUSTICE STEVENS:He has been over that. He said he did not inspect. He did not get any

information. He wrote something down, that he now wishes said something

else and it is not accurate.

RE-EXAMINATION CONTINUES: MS CHENQ. Thank you for that. Can I just then just confirm that all of this other

information which is coming in does assist you also in terms of

assuming compliance with condition 21?

A. Yeah, I had no information to say that there was an issue and the

information I had said that it was an operational bore or they were

operational supply bores.

JUSTICE STEVENS:Q. Thank you very much indeed, Mr Cooke. You are free to go.

A. Thank you.



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COURT RESUMES: 4.38 PM

ANDREW GASS (AFFIRMED)

MS CHEN ADDRESSES JUSTICE STEVENS:Q. Sorry Sir, my understanding from Ms Fionnghuala Cuncannon was that

we would try and sort out the issue of Russell Baylis.

A. Yes.

Q. Yes, Mr, Mr –

A. Yes, I saw he came back into Court.

Q. Yes, he did, you asked him back and, and he’s – so he’s come back in

from a job.

A. I didn't ask him back, Ms Chen.

Q. Sorry?

A. I did not ask him back.

Q. I'm so sorry, I think Mr Nathan Gedye said that it would useful – it might

be useful to have him back and so I did ask him and –

A. Don’t attribute something that Mr Gedye did –

Q. No, no, of course not.

A. – to me.

Q. Yes, I’m sorry Sir.

A. Please.

Q. Yes, well, I withdraw and apologise, I’m sorry Sir. So as a consequence

of that, I thought it might be helpful to Mr Baylis since he was here and

then he went away and now he’s back.

A. Yes.

Q. What I am told that the Science Caucus found that the evidence the

RDCL relied on is inadequate to conclude on the case and condition, so

the video that Mr Baylis filmed provides evidence of greater resolution

than the RDCL report, so it may be helpful to the Inquiry for –

A. Where are you – are you reading from that report of the Science

Caucus?

Q. I am Sir.


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A. Yes, thank you very much. Well, it's helpful that you – most helpful that

you have raised this matter because I was going to deal with it at the

end of the day, but seeing as you have raised it now, we will deal with it

now. What we are proposing is to complete Mr Gass, complete

Dr Gilpin if, if we can and then we were going to, tomorrow, deal with

the science witnesses and I was going to ask Mr Gedye to make a short

submission before we rise today as to the procedure that will be

followed. Now, subject to hearing from Mr Gedye, it seemed to the

Panel and I have conferred with my colleagues that the preferable

course would be to wait until we have heard from the Science Caucus

addressing the very points that you have raised before we decide

whether we need to hear Mr Baylis.

Q. Thank you Sir.

A. All right, now, in that event, Mr Baylis, I am personally sorry that you

have been inconvenienced again. We will be hearing the science

witnesses tomorrow and after that we will decide whether we need to

inconvenience you again. All right? And it may be that we need you to

come back, it may be that we decide that your evidence speaks for itself

and it may be that we’ll look at the video which we are keen to do and

will do and that’s sufficient for our purposes, all right? Thank you.

Q. Thank you Sir.

A. Does that cover it, Ms Chen.

Q. It does. You also did ask about Johan Ehlers as well and also

Mark Tonkins.

A. Yes, well, yes, yes, yes.

Q. We can, we can resolve that another time.

A. We’ve got a witness in the box –

Q. That's fine.

A. – we’ll deal with that at the end of the day, Ms Chen.

Q. No, that's fine Sir.


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CROSS-EXAMINATION: MR GEDYEQ. Mr Gass, are you a compliance officer employed by the

Hawke's Bay Regional Council?

A. I am.

Q. If you turn to document 72 in volume 3 in the witness box there. Is that

an email from Dylan Stuijt to you?

A. It is.

Q. Is that dated 6 November ’15?

A. Yes.

Q. Were you aware when you got that email that the District Council had

found E.coli contamination in bore 3 in October ’15?

A. They mention that in the email.

Q. Had you spoken to anyone else in the Regional Council such as

Mr Gordon before getting this email about that contamination?

A. No.

Q. Mr Stuijt writes to you, doesn’t he, saying he wants to have a chat with

you regarding the water conservation and demand management

reporting which he had managed to get out of step with. Is that a form

of reporting which you as compliance officer were – received or were to

receive?

A. Yes, that’s – there’s a, a requirement for an annual summary report the

W – the Water Conservation Demand Management Report that they’re

required to submit.

Q. So that's one issue, but Mr Stuijt explained he then raised a separate

issue in paragraph 2, “However, I have quite a pressing issue that I’m

hoping you can help with.”

A. Yes.

Q. Refers to the contamination event. He refers to heavy rainfalls and

twice having had an E.coli detection following heavy rain.

A. Yes.

Q. He then talks about Tonkin & Taylor being retained and says that they

have a cofy – copy of the mushroom farm’s discharge consent number

so-forth but aren’t sure this is the latest one. He asks you for copies of

your monitoring records and results of any independent auditing tests


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you may have done, other discharges last two or three years, any

significant changes and whether the mushroom farm uses horse

manure.

A. Yes.

Q. Had you deal with Mr Stuijt before this?

A. Just in issuing the compliance monitoring reports. I, I can't recall any

personal converses or emails with Mr Stuijt.

Q. Well, you get this email on the 6th of November talking about a

contamination event and seeking a whole lot of information, don’t you?

A. Yes.

Q. Who did you – or what did you do in response?

A. So I passed that email on to Mr Simon Moffitt who is the compliance

monitoring officer for the Te Mata Mushrooms consents and, and we

also had a look for any other discharge consents in the, in the era –

area.

Q. Could you look at volume 6 of those folders and document 169.

WITNESS REFERRED TO VOLUME 6 DOCUMENT 169A. Yes.

Q. Is that, on the second page, an email from Mr Moffitt to Mr Stuijt dated

23 November?

A. Yes it is.

Q. And is this effectively the Regional Council’s response to the query

addressed to you?


Q. I ask you about it because you are addressed as one of the addressees,

right?

A. Yes.

Q. So you would have seen that Mr Moffitt provided some information

about the Te Mata Mushroom Company?

A. Yes.

Q. Can you help us Mr Gass with what happened from here. Did the

Regional Council continue this dialogue with the District Council?

A. I had no further contact with the District Council regarding this matter.


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Q. As a compliance officer, did you take any compliance steps based on

the knowledge that there had been a contamination incident at bore 3?

A. Well no Mr Stuijt mentioned that Tonkin and Taylor were undertaking an

investigation and so I guess we were satisfied that the matter was being

looked into and we would expect that had any issue been found, we

would be informed.

Q. Were there internal discussions within the Regional Council with

Mr Gordon about this issue?

A. Not between myself and Mr Gordon. I was aware of other

conversations. I can’t remember dates – that were going on.

CROSS-EXAMINATION: MR CASEYQ. Can I just take you to your evidence please Mr Gass. Do you have that

with you?

A. I do.

Q. You will have been in Court when Mr Cooke was being asked questions

about the reports?

A. Yes.

Q. And you cover that in your evidence. I was wanting to ask you about

your paragraph 21.

A. Yes.

Q. And you say unless you had a reason to do, you wouldn’t normally

undertake physical inspections.

A. Yes.

Q. And I can presumably take it that it’s not a sufficient reason that the

resource consent says there will be physical inspections?

A. No well that is part of our risk-based approach, so we don’t, due to the

number of bores that are out there, we don’t undertake physical

inspection unless we have cause to believe there is an issue.

MR WILSON:Q. Could I ask just a point of clarification. One thing that is not clear to me

around your risk-based approach, which has been much discussed. Is


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the risk solely associated with the consent or is the risk also associated

with the holder?

A. I would say, well – the management determines which, I guess, you

know, consents have more risk than others. So discharge permits often

will have a high risk.

Q. Perhaps you are not the person to ask this of but would it not make

some sense that if you had consent holders who were repeatedly in

breach of their conditions, on a relatively low risk consent, compared to

exemplary consent holders on a high risk consent, that you may be

focussing the effort on the holder rather than the consent?

A. I guess that is a consideration that could be taken into account and that

would have to be something that would be undertaken by management.

Q. So at this stage, you have got no view on the Regional Council’s attitude

to the consent holder as to whether or not they regarded them as a

higher or lower risk, from a holder’s perspective?

A. Well at the time of – one of these – my compliance reports, no we didn’t

view, in this case, the consent holder, we didn’t determine the risk in

terms of the consent holder.

Q. Thank you.

JUSTICE STEVENS:Q. Could you just help me with what you mean by management. It is

obviously not you?

A. Not me, that would be above my level.

Q. So who, in particular?

A. That would go up to Mr Wainwright.

Q. Mr Wainwright. Thank you very much.

CROSS-EXAMINATION CONTINUES: MR CASEYQ. Mr Gass, my understanding is that the Hastings District Council holds a

number of consents from the Regional Council in respect of the several

bores that it has around the district?

A. Yes, they do.

Q. Do you know how many?


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A. Of consents?

Q. Well, how many bores?

A. Bores. I believe there are 33 bores that I monitor, well, have consents.

There's about 14 consents that have 33 bores and some springs,

thereabouts.

Q. And if there's a similar condition in each of the consents for each of the

bores, or in the consents for each of the bores, then there wouldn't be

any risk on the Regional Council at all if it was to have approached the

District Council and said, “Why don’t you District Council get somebody

to go round every year, once a year, do this monitoring and provide us

with a report.”?

A. No, that would, could be something that would be worthwhile.

Q. No, the question is, what's the risk to the Regional Council?

A. Well, then the condition is there and the consent-holder needs to comply

with that condition and so if they were providing information to satisfy

that, then I guess if they were to provide the information and it was

incorrect or they were in breach, then they are in breach of their

consent.

Q. That wasn’t the question. What's the risk to the Regional Council of

setting up an arrangement with the consent-holder that holds a number

of similar consents, all with a very similar condition, to ask the

consent-holder to get somebody, and it may need to be somebody

independent, to provide you with a report every year that that condition

was being complied with?

A. That could be a pragmatic way of going about assessing that condition

and satisfying it.

Q. Yes. The question is, what's the risk to the Regional Council?

A. I don’t know what the risk would be, I'm sorry.

JUSTICE STEVENS:Q. It would be more transparent to the consent-holder would it not?

A. Yes.

Q. Because they would know what they have to do?

A. Yes.


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Q. And there would be no cost to the Regional Council because they would

not be doing anything?

A. No.

Q. Apart from receiving a report.

A. Yes.

Q. So does that help you answer Mr Casey’s question?

A. It does.



JUSTICE STEVENS:Ms Chen? Just before we start, just make sure that your re-examination

relates to matters that have been dealt with in the evidence, not new stuff.

RE-EXAMINATION: MS CHENQ. Thank you. So Mr Wilson asked you a question about whether you take

the holder of the consent into account in determining risk or whether it is

just the consent itself and did you know that the Regional Council does

do that?

A. Yes. Well, we have a, I guess, a policy in place which sets out the work

risk-based approach for the resource use team.

Q. And that policy does take into account if you've got a recidivist who is

putting in an application, that they will be better – more scrutinised and

more closely watched?

A. Look, the sort of, in terms of the approach there, that’s, you know, sort

of I guess, you know, compliance officer were handling a list of consents

and then we undertake to monitor the, all those consents from the more

riskiest to the least, I guess, and so we can't physically get to them all

every year and so the, yeah, I'd need to have another look at the policy

to –

Q. That’s fine. What you're saying is look, you don’t personally do that but

it's for others.


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JUSTICE STEVENS:Q. It is dealt with by management?

A. Yes.

Q. Mr Wainright?

RE-EXAMINATION CONTINUES: MS CHENQ. That’s correct. And actually others throughout the organisation and then

you were asked about whether or not, by Mr Casey, about whether or

not you thought it was a good idea or no, whether it was a risk to the

Council, the Regional Council, to be receiving these reports.

A. Yes.

Q. But the obligation under condition 21(4) is on whom?

A. The obligation’s on the consent-holder to comply with that condition.

Q. So how do you, I mean, can you assume that they are complying?

A. Well that is how we have approached it up till now.

Q. And then finally, you were asked a question about paragraph 21, I can’t

remember by either my learned friend, either Mr Casey and Mr Gedye

and you say, “Unless we have a reason to do, the compliance team

would not normally undertake.” So what are those reasons? “Unless

we had reasons to do so?” What are those reasons?

A. Well if we were to receive some information implicating there is an issue

with the infrastructure or a complaint received from the public or another

organisation, then that might give us cause to have a closer inspection

or have an inspection into the infrastructure bore head. So for instance

with the monthly data that we receive, there’s a cover email that typically

gets sent from Mr Kersel outlining any issues that might be apparent

and if there was something in that email that would give us cause for

concern, that might trigger to have a closer look at it, as an example.

JUSTICE STEVENS:Q. Thank you very much indeed for coming along, you are free to go.

WITNESS EXCUSED


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MR GEDYE ADDRESSES JUSTICE STEVENS: DR GILPIN NEXT WITNESS

JUSTICE STEVENS:Come on forward Dr Gilpin, and thank you for coming.

BRENT GILPIN (AFFIRMED)

CROSS-EXAMINATION: MR GEDYEQ. Dr Gilpin, I can indicate that the panel has received and carefully

considered your report which is in folder in the box, under tab 2, should

you need to look at that. The panel and the Inquiry have further

received and considered your brief of evidence or evidence-in-reply. I

just propose to ask you a few questions about that and then other

counsel might ask you some questions as well. Paragraph 14 of your

brief, you have given your opinion on what is probably the most central

matter of concern to the Inquiry at the moment is whether both

pathways were feasible. Pathway 1 is water coming off the paddocks

close to the bores 1 and 2, into the road drains, into the drywell, up over

the bore head and down the bore holes. So that is the bore hole ingress

pathway. Pathway 2 is water travelling from the Mangateretere Pond,

underground, through the aquifer, across to bore 1, a distance of

approximately 90 metres.

A. Yes.

Q. And so can I get you to confirm that based on all of the evidence you

have seen, both of those pathways are feasible and both may have

occurred?

A. That is correct. And I should make the comment that there is an awful,

well I think as was made earlier, there was a huge amount of evidence

being put forward, some of which is still being presented and I think it is,

in light of all the information that I have seen, but there is still more,

which I imagine will be presented tomorrow in particular, that may affect

that but they both seem very feasible, they seem very feasible.


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Q. And am I right that you don’t purport to speak about the technicalities of

hydrogeology and the aquifer but rather you are speaking about the

microbiological issues?

A. Correct.

Q. E.coli and campylobacter organisms.

A. Correct.

Q. Can I just ask you there is a related pathway or a third pathway if you

like which is similar to down the bore holes but it is the same water

coming around the casing and somehow migrating vertically down,

vertical infiltration down around the casing. You also regard that as a

feasible pathway and/or does that fall within your first pathway

assessment?

A. So it is certainly –

Q. Let me just ask you. Do you regard that as a feasible pathway?

A. It certainly is a feasible pathway.

Q. Do you see any different issues from your point of view between that

pathway and the bore head pathway?

A. The bore head pathway would get contamination directly into the bore

water, whereas depending on the circumstances of going effectively

down the side of the pipe and the degree of attenuation that may occur,

and then the transport – well, how much is able to go through any

weakness in the casing would presumably have a greater reduction than

microbial microbes.

Q. If we assume that down the casing might have taken 34 hours, and I

base that on the Rhodamine results, would it be your view that

campylobacter could survive that duration of time travel?

A. Yes.

Q. It's not dissimilar to the 26 hours, being the first appearance from the

pond is it?

A. No.

Q. It's within that scope of –

A. Yes.

Q. – survivability?

A. Yes.


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Q. Can I take you to paragraph 16, where you talk about the travel speed

and the interesting proposition that microorganisms tend to travel faster

than dye because they're larger and only travel where larger pores can

go where groundwater velocity is higher? I put that very inelegantly but

you're saying that microorganisms tend to travel more quickly than dye

particles?

A. They have been observed to travel more quickly and I guess the intent

of that statement was to say that you could except the microorganisms

to behave similarly to the tracing dye and potentially to arrive sooner but

there are clearly limited studies that are exactly the same as what has

occurred in this local situation but based on dye tracing work that’s been

done, particularly in the Canterbury region in alluvial aquifers, that has

been what has been observed and that’s the explanation that has been

put forward.

Q. So if the dye from the pond came through at bore 1 first, after about 26

hours, you would expect E. coli to come through possibly quicker but no

slower than that?

A. Yeah. So it could – well, it did come, well, the dye continues to come

slower according to the tracing work, for at least five days, so some of it

will be slower but certainly at that time or potentially slightly sooner

would be my view.

Q. And has anyone measured the speed difference between E. coli and

campylobacter or is that becoming a bit too refined? Are they larger?

What's the size of those two organisms?

A. Campylobacter is potentially slightly smaller. The studies which have

been done are much smaller laboratory scale, so which the ability to

relate those to field work is more difficult and the issue with the field

work is campylobacter is expensive to assay, so people haven't actually

been able to test at the same level and also it requires putting large

amounts of campylobacter into a aquifer and then studying the transport

of it, which is again something that is generally discouraged by – difficult

to get a Regional Council to agree to those experiments.


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JUSTICE STEVENS:Not a good idea is it?

CROSS-EXAMINATION CONTINUES: MR GEDYEQ. Not in my backyard. I think the rest of your report was very clear,

Dr Gilpin. I wanted to ask about 26 and 27, which I'm sure it's my fault

but I don’t really understand this. You say, “Ongoing contamination of

drinking water is also explained by mixing and dilution in the reservoir or

reticulation system.” I take it by that you mean that once the water

leaves the bores, it goes into the reticulation system which is already full

of water and then into reservoirs, which have a lot of water in them, and

so there's a dilution and a mixing effect.

A. Yes.

Q. What did you mean when you say, “This progressive mixing and dilution

in the reservoir is a required component for direct entry in the bore 1

chamber to explain the epidemiology observed,” and I do see you go on

in 27 but can you just help me with what you meant by 26?

A. I should clarify, I think 29 – the final version – is yours the version dated

the 30th of January?

Q. Oh, we’ve been –

A. So, so, I think there’s a couple. There might be –

Q. No, I must –

A. Yeah.

Q. - I must be going off the earlier version.

A. It's all right, but – so just to clarify, there is a –

Q. So it will be 29?

A. Yes, 29, yeah.

Q. Of the final version?

A. So, so in my view and I’m no ex – I’m not professing expertise in mixing

within the particular reservoir, if a slug of contamination came down the

bore head and was then pumped to the reservoir which I understand

may – contains a large volume of water, if that slug was over a short

period and it would depend upon the dynamics within the reservoir as to

the degree of mixing and dilution as to whether if that slug goes in it's


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then goes out again straight away or it's progressively mixed with the

water that – with, with ongoing pumping into that reservoir. So the intent

of that statement is to explain what appears to be at least contamination

from the 7th to the 12th of August, you – if the slug down the bore head is

the only explanation, there needs to be a large enough concentration of

campylobacter that has got into the system that has then progressively

diluted until the 12th. We don’t know how much contamination there was

there on the 7th, 8th, 9th or 10th. We do know by the 12th we are able to

detect it in the reticulated water probably at a fairly low level, but.

Q. I think I understand that. Would it, would it be equally correct to say that

because the epidemiology indicates that campylobacter continued to be

present in the system for at least five days that any slug would have to

be diluted and mixed to keep coming through over five days?

A. Yes. So, so the epidemiology doesn’t support a one day exposure.

Q. Yeah.

A. It certainly supports that people – and the epidemiology and the DHB

would be better placed to comment on people who were only drank

water on the 11th or 12th in particular, so those that may have visited the

area, that they were drinking enough water to make them ill, whereas

other people would have consumed daily water and became ill during

that period.

Q. And you’ve explained that in the next paragraph, I think, it's the same

idea that you’ve explained there, isn’t it, in 30?

A. Yes.

Q. So this would indicate one essential difference between the ingress of

contaminant, would it not, in the sense the bore head theory involves a

fairly short period or two short periods during the power outage of a

limited amount of water getting into the bore head, whereas the pond

theory involves much greater volumes of water over a more continuous

and longer period?

A. Yes.

Q. And you’ve observed that the bore head theory could be tenable on the

basis that a slug or a small amount got mixed and diluted and kept

coming through, but that's – but the pond theory is equally explicable by


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the epidemiology because it would come through over several days and

there would be lots of volumes of it.

A. Correct.

Q. And, and what would be coming through would already be diluted and

mixed with aquifer water, have I got that right?

A. Yes, yes.

Q. Yeah.

JUSTICE STEVENS:Q. I.e, over the distance from the pond to bore 1?

A. From – yeah, so, so if the dye tracer – well, and the dye tracing work is

perhaps asked of – confirmed tomorrow, but if it suggests a fairly even

daily over those five days you got a, got a fairly consistent of dye

coming through, you may get progressively less campylobacter, but

whether it's significantly less is, is un – is unknown and doesn’t make a

big difference to the epidemiology you might observe.

Q. The Inquiry received quite a lot of evidence from people who are not

microbiologists stating their, their belief that campylobacter in the pond

would have been filtered and scrubbed clean through all the aquifer

materials such that you would not get the doses required to infect all of

these people even if some had come across. I take it from what you’re

saying you don’t accept that?

A. Not in light of the dye tracing results.

Q. And am I right that campylobacter can go into a VBNC state where you

can't – it's not culturable but it's still viable in that it will infect a mammal

if it gets inside it's system?

A. Yes.

Q. And this is one aspect of the survivability of campylobacter is that they

may go into this – they may “go to sleep” as it were into a VBNC state

but then be able to infect a person if ingested?

A. Yes, although the, the fact that we’re able to isolate campylobacter on

the 12th of August in a viable culturable state suggests that you don’t

need a VBNC explanation to explain what occurred. IT may result in a

greater level – number of campylobacter being present than potentially


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was detected but it's not an explanation that’s required or needs to be –

so if you – certain – some scientists are less believing of a VBNC, so I

don’t – I think the viable but non-culturable doesn’t need to occur – have

occurred for this outbreak to, to be – or the negative –

JUSTICE STEVENS:Q. So are you saying we best put that to one side?

A. Yeah, and, and it may – it can, it can occur, but it's not, it's not essential

to explaining what's happened because we certainly had viable

campylobacter by culture on the 12th and subsequently. As VBNC, by

definition, means you can only get if you put it inside a human host or

other such source to get it out or use molecular methods to detect it and

again, yeah.

CROSS-EXAMINATION CONTINUES: MR GEDYEQ. So I understand, are you saying – which samples were found to be

culturable? Was it from the human samples or just the samples from

the environment and the bores?

A. All of the samples which have been reported as campylobacter positive

are by culture, so no –

Q. I see. So by definition they’re culturable?

A. Yeah, yeah. None have been examined use – to look for potential

VBNC presence of –

Q. The human ones would always be culturable –

A. Yes.

Q. – culturable, wouldn't they, because they’ve cultured inside the human?

A. Yes, yes.

Q. Thank you, Dr Gilpin, just one final question. You don’t need to go to it,

but document 179 is a Hills Laboratory result which says that

campylobacter was detected at Brookvale Bore 1 on the 19th

of January 2017, you’re aware of this positive –

A. Yes.

Q. – result found in bore 1?

A. Yes.


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Q. On the 20th of January, campylobacter was detected at both the outlet

and inlet positions in the Mangateretere Pond, you know that as well?

And I understand that you have arranged for genotyping tests on the

bore campylobacter and the pond campylobacter, is that right, to see if

they match?

A. Correct. We have received – ESR received the isolates today and we

are expediting analysis of them.

Q. And I just wanted an update on when we might expect a result on that?

A. Monday we have, we have in communication today with – so Mon -

Monday we will have a result.

MR WILSON:Q. Dr Gilpin, do you have a view of what's the most likely pathway that the

January ’17 campylobacter that were found in the bore came from, or

how they got there? In advance of your genotyping, of course?

A. No. And, and in advance of tomorrows illuminating science evidence, I

probably don’t. I guess potentially because I, I lack information on – for

example, I’m not, I'm not aware of the presence of sheep or other

animals in the vicinity of the bore in the periods since – I know they’re

not there now, but how long ago they were there. My un – well, my gut

feeling would be they are likely to be wild fowl because – but particularly

in, I guess, in the sampling and analysis of isolates done after the event

from environmental sources, a large number of them appeared to be of

wild fowl origin in, in the water and other samples, so that wouldn't be

surprising and we also found on the 12th of August in the bore sample

campylobacter consistent with a pukeko or wild fowl source, so find – in

this case, a – assuming that sheep are no longer present and other

animals haven’t been put forward, then – and then again a wild fowl

would be most likely. I think it would be unlikely they would be – have

persisted in the period since Aug – mid-August in any f –

Q. That's probably the more relevant question. You think it's most unlikely

that, that they have survived since August?

A. Yes. I think there would need to be quite a few of them and they would

through groundwater presumably have moved elsewhere. Considerable


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amounts of water have been pumped, so yeah, my – I would believe

that less unlikely.

Q. Just talking about the considerable amounts of water that have been

pumped, we have heard evidence that some 84 million cubic metres of

material was pumped out of the bores before they were shutdown in

August of last year.

JUSTICE STEVENS:Q. Over a period of?

A. Of 12 days.

MR WILSON:Q. 12 days. Do you have a view on whether or not you would still be

picking up campylobacter from a small ingress that had occurred during

the period where the power was out, after that volume of water had

been removed from the well?

A. I don’t think I'm qualified to answer that one. I think it's more of a, it's a

serial, it's a more of an engineering question around washing because

presumably any volume of water washing microbes is going to remove

them progressively and so –

Q. So you would regard it as a fluid mechanic’s problem?

A. Yes. Yeah. Yes. Essentially with, if you do, you know, sampling at a

basic form, you rinse bottles out several times to remove previous or

flush hoses through to remove microbes. They will attach but, yeah,

one would assume that large volumes are going to move quite a lot, a

bit of contamination or any microbes that are present.

CROSS-EXAMINATION CONTINUES: MR GEDYEQ. Well, would you go as far as saying, Dr Gilpin, that the volume issue

whereby six to eight thousand cubic metres a day is washed through the

bores, with E. coli readings more than campylobacter, E. coli readings

continuing through the period, positive enumerated readings, must

mean one of two obvious things. One is that either there's a very large

amount of contamination in or around the bore or there's a continuing


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and replenishing source coming through. Based on microbe behaviour,

would you accept that one of those two things is the most likely

explanation for still getting readings after 86 million litres have come

through over a 12-day period?

A. Yes. So bacteria can persist in biofilms or other sort of more protected

components where they are protected but particularly when water is

flowing and changes in pace disrupt and one of the reasons you get

quite often release of microbes in large numbers when you start

pumping or a flow starts, because biofilms are disrupted by an

increased flow, so which disrupts those sort of adhered microbes but

large volumes of water, I mean the same as you clean anything in the

house or anywhere else, should disrupt and move microbes and if they

are stuck forever, then they wouldn't move. Certainly there is no

evidence of significant replication of microorganisms in these sort of

environments, although there may be, yeah.

MR WILSON:Q. So just to follow that up, you say they are not growing down there.

There is insufficient nutrient for them to grow?

A. Yes. Yes, and certainly not in large numbers. There is evidence of

E. coli. I mean E. coli has been mentioned as a faecal indicator, which it

is. If not – you can get E. coli without faeces being present because

there are some environmental forms, sources of E. coli and it may in

certain high nutrient warm environments, you may get growth occurring

and particularly where you have for example waste streams from

processing of products or of some form of waste.

Q. But those are not the environments we are talking about here?

A. No. So in the absence of those persistences, is the best you can hope

for and certainly significant replication has not been observed, as far as

I'm aware.

CROSS-EXAMINATION: MR CASEYQ. Dr Gilpin, thank you for your efforts and the very informative reports that

you have provided and the evidence that you have given and I'm


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struggling, I think with other people in the room, to get a full

understanding of it. So please, I apologise if some of the questions I

ask you sound a little bit simplistic. You were first engaged to provide,

as I understand it, some evidence of the likely sources of the

campylobacter that was identified in the clinic subjects, if I can call it

that, the patients who were struck during the outbreak?

A. Yes.

Q. And we don’t have samples from all of the patients who were

hospitalised, but you are satisfied that the samples that were taken are

sufficiently representative?

A. Yes.

Q. Of the spread of the outbreak and the incidents of the different forms of

campylobacter?

A. Yes the evidence that I have seen suggest they were geographically

spread across the region and covered a wide range of age groups and

demographics, although there were more elderly cases, people over

70 than you would see in a normal outbreak.

Q. And the geographic spread was pretty random, or even, there was no

particular concentration.

A. As far as I am aware there is no evidence because there was efforts to

see whether certain parts of the distribution system may have had more

or less cases but no. As far as I am aware.

JUSTICE STEVENS ADDRESSES DR GILPIN – MICROPHONE

CROSS-EXAMINATION CONTINUES: MR CASEYQ. Can I just say Dr Gilpin that it is more important that you talk to the

panel than you talk to me. I will ask the questions.

JUSTICE STEVENS:Well I want the people at the back to be able to hear too.


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CROSS-EXAMINATION CONTINUES: MR CASEYQ. So part of your work was to take samples or get samples taken in the

paddocks and if I can ask you please to go to one of the bundles beside

you, bundle 4, volume 4 and the document is a report prepared by

Dr Swabey which is document 82 in that bundle.

WITNESS REFERRED TO BUNDLE OF DOCUMENTS – VOLUME 4

JUSTICE STEVENS:It might be in 4A. It was so big it got it’s own folder.

CROSS-EXAMINATION CONTINUES: MR CASEYQ. Document 82?

A. Yes.

Q. Now if you go to page 49, well the page after page 48. There is a

coloured plan, have you got it?

A. Sorry, page?

Q. The page after 48, it is a plan – I have only got a –

A. No, page 49 in mine is different.

Q. – wrong version I apologise.

A. So page 47. This one?

Q. That is the one, yes.

JUSTICE STEVENS:Is that the one with P1, P2, P3, P4?

CROSS-EXAMINATION CONTINUES: MR CASEYQ. That is the one yes. Is that a map that you prepared?

A. No.

Q. Do you know who did prepare it?

A. Well certainly the Hawke’s Bay Regional Council.

Q. Have you seen it before?

A. Yes I have.


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Q. And it tells us, at least it looks as if it is telling us, that the samples taken

in paddocks 2 and 3 or the areas shown there as paddocks 2 and 3,

most of those samples matched the clinical population, that is matched

the campylobacter genotype that was found in the patients?

A. Certainly isolates from faecal samples taken from those paddocks, did

match the predominant clinical cases.

Q. Conversely in paddock 1, there is only one sample which matches the

clinical population?

A. Yes but I would caution that a very small number of faecal samples

were tested so I believe five or six from each of those paddocks, which

had several hundred sheep in them, so in any sort of statistical basis,

comparing the small numbers of samples is not something I would –

Q. Look I understand. I am not asking for a statistical analysis.

A. – no.

Q. But just on the information that we have, it certainly shows a strong

correlation between paddocks 2 and 3 and the clinical samples and a

weaker correlation between paddock 1 and the clinical samples.

A. It certainly shows the types from paddocks 2 and 3 were the

predominant ones but I would think even a correlation based on, as I

said, on a small number of samples, if we've taken 20 or 30 samples

from each paddock, you may have found more of the other genotypes,

so.

Q. But equally, you may have found less?

A. Yes.

Q. So –

A. So I would like to over-interpret in either direction and certainly an

absence of finding it I think is, I'd be less comfortable with using that as

a basis to say that they weren't present.

Q. No, but where it says not found, can I take it that these are samples of

sheep faeces that have been taken?

A. Yes.

Q. So there are some sheep faeces with no campylobacter present?

A. I'll just refer to the results of the sheep faeces taken.


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JUSTICE STEVENS:Q. Are we going back to your original report?

A. Yes, which is what this is referring to. So there were, yes, there were

sheep faeces where no campylobacter was isolated.

MR WILSON:Q. But, Dr Gilpin, and again if one were to have campylobacter in a flock of

sheep, would it be ubiquitous or would only some part of the flock be

affected?

A. Only some part would be affected. So within an individual – so with an

individual animal, so we would find and the information is somewhere in

here, perhaps 50 to 80% of the animals were shedding campylobacter

at a level that could be readily detected. So I mean indeed in this room

here, if we look for E. coli, there'll be some people in this room who

have no E. coli in their faeces today. Levels of these microorganisms

fluctuate but as a population, you find them on in sort of a high

proportion of animals and some animals will shed very high levels of

campylobacter, so millions per gram, others will shed, you know, detect

at very low levels per gram because of course these animals have

thousands of different bacteria and billions of them in their system and

in most animals they don’t cause disease or any problems, commensal

organism that’s part of their normal microflora.

CROSS-EXAMINATION CONTINUES: MR CASEYQ. It's part of their normal microflora because presumably they build up an

immunity that we as humans otherwise wouldn't?

A. Pathogens, most pathogens by definition have gone – it isn't a good

situation for most organisms, so they are in a symbiotic relationship with

their host, so they're able to live in a way that doesn’t, yeah, it's when

they get into a human host that they're not well adapted.

Q. But you do mention in your evidence that humans can become, I’m not

sure of the word you use.

A. Immune, develop an immunity.

Q. They can develop an immunity, yes.


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A. Yes, and certainly we see that for example in dairy farmers or other

process workers who most often get ill when they first start that job but

then develop an immunity, unless they're very – but some individuals

never develop an immunity and actually have to find an alternative

career.

Q. There's perhaps one other difference, without being too crude about it,

is that the sheep who are eating the grass where other sheep have

defecated?

A. Yes.

Q. So they must be far more exposed to contamination or

cross-contamination than the human population normally would be?

A. Yes.

Q. And I think you mention in your evidence about the possibility that some

of the campylobacter cross the fence?

A. Yes. Yes, indeed.

Q. So there could have been cross-infection from one paddock to the

other?

A. Yes.

MR WILSON:Q. And that cross-infection can occur by third party vector, such as flies?

A. Yes. Yes. So, and I guess as an example, chicken. Campylobacter in

chickens are the most perhaps the best studies. In almost every flock of

chickens – well, often chickens when they first are in a shed, will be

campylobacter-free and they almost invariably become contaminated

with campylobacter through various routes rather rapidly. So it's a very

easily transmissible organism.

CROSS-EXAMINATION CONTINUES: MR CASEYQ. While, while it's easily transmissible, can I suggest to you that if the

flocks come from different sources – if they’ve come from different farms

or a different origins and they are kept fenced and separate, then the

cross-contamination, if I can call it that, is less likely that if they’re from

the same original source and they share the same paddock?


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A. Yes.

Q. Now the, the – one identification of campylobacter in paddock 1 was at

sheep 90 – was in sheep 93 and that was the CJ16006 which was

identified in four percent of the clinical population.

A. Yes.

Q. Whereas the genotypes of the other forms of campylobacter are

represented, I think, over 80 per – or 70-something percent.

A. Correct.

Q. Now, obviously the, the campylobacter that enters the water supply is

not in a solid form, it's not in the form of sheep faeces, is it?

A. Hopefully not. So, so – see, well, it –

Q. So there has to be an element of transportation by dilution – sorry, by

dissolution?

A. Yes. So you’ll get re-suspension into, into water with campylobacter

either freely travelling or associated with particles which can – which

occurs.

Q. And, and has there been any study that you're aware of, of the, the

solubility of the campylobacter? I mean, how many campylobacter units

per litre of water does one find, or is there no upper or lower limit to

that?

A. In the max – you mean in a water sample?

Q. Yes.

A. Yes, well, there is a, there is a number of studies of surface water in

particular looking at levels of campylobacter where, where levels

certainly exceeding 1000 campylobacter per 100 mls can occur and

sometimes and on occasions more. The issue is that typically the upper

level of enumeration is 1200 campylobacter per 100 mls in most –

MR WILSON:Q. But, but no one's ever set out to establish a saturated solution to use

analytical chemist – conventional chemistry of –

A. A saturated solution would be 10 to the 10 – or 10 to the 11, or 10 to the

– yeah.

Q. Which is theoretically possible?


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A. Yes, entirely. So in the laboratory we’ll make a s – make – we’ll grow

them up to very high levels of concentration so you could have a

hundred million per, per ml, actually.

CROSS-EXAMINATION CONTINUES: MR CASEYQ. Now, there’s – there, there have been some attempts to estimate how

much by volume of sheep faeces might have accumulated in the

relevant paddocks in the period leading up to the, the storm event on

the 5th and 6th of August. Have you been party to that?

A. I have read in – I have read, I have read some of these.

Q. Yes.

A. Yeah. But I haven’t – no, I haven’t.

Q. You haven’t been asked to comment on that?

A. Not specifically, no.

Q. There has also been some hydrological or surface modelling of the likely

flow paths of the stormwater run-off over the 5 th and 6th of August. I take

it you’ve seen that, but you haven’t been involved in that?

A. No. And it's not, not an area that I would feel confident to, to comment

on.

Q. Because I - why, why I'm asking you this is you’ve said that based on

the evidence you’ve seen, the two are equally probable, or the two are

probable – I’m not sure that you said equally probable.

A. Yeah. Yes, and, and, and I guess – and, and perhaps the clarification in

light of the characteristics of the campylobacter and the survival and as,

as we understand it.

Q. So you’re, you’re limiting your, your opinion there as to the survivability

of campylobacter rather than the pathways of entry into the system?

A. Yes, well I guess with a non-expert view on the various pathways that

have been presented as outlined.

JUSTICE STEVENS:Q. So it's really on the assumption that there are two pathways?

A. Yes and –

Q. And they are x and y?


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A. Yes and what would the impact be on campylobacter if they were being

transported via those pathways in the timeframe?

Q. Given the timeframes and the epidemiology involved?

A. Yes.

CROSS-EXAMINATION CONTINUES: MR CASEYQ. Perhaps if I just make sure you understand the theories that are in play

here?

A. Yeah.

Q. The bore head entry theory is that campylobacter was washed in

overland floodwaters that flooded across paddock 1?

A. Yes.

Q. And entered the drain on the southern side of Brookvale Road and filled

that drain to the level that it then entered the drain on the northern side

up a culvert that connects the two drains?

A. Yes.

Q. And filled that drain to the point that at each end of that drain it infiltrated

the two bore wells, that’s as you understand it?

A. Yes that is correct.

Q. And then when in the bore wells it filled the bore wells to the level that it

overtopped some cable glands that that allowed the entry of water into

it?

A. Yes.

Q. I take it you have not been involved in assessing the rates of transport

or dilution or inflow or volumes in any of that?

A. Not, no, not, no.

Q. Conversely the other theory is that water – overland water

predominantly in the areas shown as paddocks 2 and 3 and most of the

water over 95% I think, said 97% of the water in those paddocks would

have flown, flowed, in the direction of the Mangateretere Stream where

is the pond that I assume you’re familiar with?

A. Yes.

Q. When I say “the pond” you know what I'm talking about?

A. Yes.


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Q. And that was where the fluorescence test was carried out?

A. Yes.

Q. Now and then as with the fluorescence the pumps were drawing water

and drew water from the pond and into the well?

A. Yes correct.

Q. Sorry into the bore is what I mean. Now can I take it Dr Gilpin that from

what you have seen and your investigations around the fluorescence

transport you would agree that that is an obvious route?

A. Yes, well yes I would, yep.

Q. Given the number of sheep that we know were in paddocks 2 and 3,

given your information that there's a high preponderance of the clinical

genotypes in that paddock, given the large proportion of water on that

overland flow path and given what we know about the fate of the

fluorescence and by reference then the campylobacter in that pond it's a

highly probable route?

A. Yes and I think that’s the evidence of the scientific water decision, the

view of the scientific panel which is what I would base my judgement on

whoever assessed the data in detail.

Q. The other theory relies on a number of other findings which are outside

of your area of interest or area of expertise including, of course, whether

the water in the chambers rose high enough to get into the bore head

but the next question I want to ask you about is in terms of the volume

and concentrations that would have to be delivered by each of those

theories you’ve said in your evidence that for the bore, the well head

entry I think you said there has to be have been the mixing in the

system?

JUSTICE STEVENS:What paragraph are you referring to there?

MR CASEY:Paragraph 29.


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JUSTICE STEVENS:That’s of the last version.

CROSS-EXAMINATION CONTINUES: MR CASEY Q. So it required component for that theory to explain the epidemiology

was that it had to be retained in the reticulation system and the storage

for the length or for the duration of the outbreak?

A. Yes.

Q. And that would be by progressive mixing and dilution?

A. Yes.

Q. Now, again, have you studied the rate of mixing and dilution, the

volumes and those matters?

A. No.

Q. So you're not speaking from the point of view of any knowledge as to

how much dilution there might have been?

A. No, I'm simply raising that as something for consideration by the Inquiry

or a factor that hopefully the –

Q. Can I say you're raising it as more of a matter of a consideration. It's a

pre-condition?

A. Yes.

Q. They have to be satisfied –

A. Yeah.

Q. – that that would have occurred for it to explain the epidemiology?

A. Yes.

MR WILSON:Q. Indeed, Dr Gilpin, is it not fair to say that the water that comes through

the glands, if in fact it did, would be at the top of a water column and

that it would have to mix to the bottom of the water column to the level

of the pump to have been drawn into the pump at all?

A. That’s beyond my expertise to – the mixing and that in the bore, yeah, I

–

Q. But you agree it would have to mix within the bore to get down to –

A. Yes.


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Q. – the pump from the top of the water column to the intake from the

pumps, which is below the water column?

JUSTICE STEVENS:Q. If it is floating around on the surface, it is not going to go anywhere is it?

A. No. Yes, yes. I mean that would make sense, yeah. How the degree

of mixing and, yeah, I don’t know what the levels were at the time, so,

yes, but that makes…

CROSS-EXAMINATION CONTINUES: MR CASEYQ. I don’t think you claim to be an expert in that area.

A. No.

Q. So I won't ask you questions about that. What we have, and I think you

refer to it in your own report, is that campylobacter was isolated from

samples taken at bore 1 and when we say at bore 1, we mean the water

coming out of bore 1.

A. Yes, that is my understanding.

Q. On the 19th of August and again on the 24th of August?

A. Yes.

Q. So that is campylobacter in water that is not in the reticulation system?

A. Yes, from my understanding, yes.

Q. So you don’t refer to that in your statement of evidence but you'd agree

that that would be contrary to the theory that had the water diluting and

mixing in the reticulation?

A. Yes. It's not, yeah.

Q. Not only is it not consistent with that theory, it runs counter to that

theory. Would you agree?

A. Yes, and I guess that’s where I come to say that I think, well, based on

what I've seen so far, either of them is possible and I mean the bore

head, going down the bore head is relatively easily solved for future

situations.

Q. It is solved for future situations?

A. Yeah.

Q. Would that it was the answer?


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A. Yes, whereas – and I guess with all, I mean, this is a perfect storm of

events that have occurred to result in what we saw.

Q. Well, it may not have been the perfect storm but it might be a lot of red

herrings coming out of the sky and we're trying to work out which are

red herrings and which are the cause. Would you agree with that?

A. Yes, I’m not sure I can disagree with that.

Q. Thank you. And also over the period that we're talking about, that is in

the August period, particularly from the 11th and 12th, there were

repeated detections, in fact enumerations, of E. coli in the water from

the bores?

A. Sorry, on the 11th and 12th?

Q. No, from the 11th and 12th right through really until the bores were turned

off later in August, 24th or 25th of August. You're aware of that?

A. Yes. Well, broadly but, yeah, yes.

Q. Now, the rest of your evidence is very clear, for which for a

non-scientific person I thank you. At paragraph 32, you were asked a

question about why we haven't seen more outbreaks in the

Mangateretere Stream and you say you can't answer without knowing a

number of things. Can I suggest that there should be another item on

your list and that might be what mechanical works might have been

undertaken in the pond that could have disturbed the base of the pond,

which would be of course the surface of the underlying aquifer?

A. Yes, I mean change is always a common occurrence in any sort of

outbreak of any sort, a change in what had been previously, so, yes,

absolutely.

Q. Now, were you aware that after the pumps were turned off for a few

weeks in August through to October, they were turned on again and

campylobacter was detected a few days after they were turned on in the

bore 1 water?

A. In October? So this is in?

Q. In October. They were turned off in August after the event, on about the

24th I think, and they were turned back on, on or about the 12 th of

October because there was an attempt at a dye-tracer testing in


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October and the pumps were turned on to try and simulate the pumping

regime that had occurred the previous August. Were you aware of that?

A. I don’t think so.

Q. Right. So you weren't aware then that when the pumps were turned on,

within a matter of days campylobacter was detected in the water at

bore 1?

A. Not that I have, not that I can recall at the moment, no.

Q. But you do know in the January event, just now last month –

A. Yes.

Q. – that same phenomenon occurred, that a few days after the pumps

were turned on, as well as the fluorescein dye, campylobacter was

detected?

A. Yes. Yes, I do, and they're the isolates we're receiving. Well, I

understand we receiving six isolates so whether they include the

October ones.

Q. I suspect not but I just wanted to know whether you were aware of the

whole story?

A. But I don’t believe we've received those October ones for analysis in

any case.

Q. Now, at paragraph 34, you answer a question which has a premise in it

which is yet to be established in the Inquiry about a shortcut via

corroded bore casings in bore 1 and it says bore 2. Now, as I

understand the question that you were asked to consider was we know

that the bores go down a certain depth, casings go down a certain depth

and there are screens and in the normal course, the groundwater enters

at those screens and is extracted?

A. Correct, yeah.

Q. By the bore, by the pump. As I understand it, the suggestion is that

there may have been some holes further up the casing. Is that what you

understood the nature of the question?

A. Yes, yes, that is.

Q. Holes caused by corrosion?

A. Correct.


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Q. Of the casing. So the ability for groundwater to have entered at a higher

level than the screens?

A. Yes.

Q. That's as you understood it?

A. Yes, it is.

Q. And I think you were asked, if I've got this question right, whether that

would have made a difference.

A. Yes.

Q. That was the question you were asked?

A. Yeah, that does sound like the question.

Q. Right. And as I read your evidence, it says that transport via surface

water would provide least attenuation but we're not talking about surface

water here. We're talking still about underground water just entering at

a higher level than the screens.

A. Yeah, so I guess this is probably – I note I say I can't really answer this

but then I proceed to try and put some comments in which is probably

unwise. So I guess those scenarios that I, from my understanding of

this, was if there are holes in the bore casing further up, did surface

water contamination effectively percolate at a local level and come in to

there or I guess are you suggesting the other scenario of having

travelled at a shallower depth, with the vadose zone.

Q. No the question still says, it still presupposes that the contamination has

come from the Mangateretere Stream.

A. Yes so it has come from the Mangateretere Stream, which is probably

the way that I answered that in that particular phase, it has come from

the Mangateretere Stream and has – and I guess it would be at the

level, at the level it has travelled. So if it made its way down to the

aquifer, I guess what I am suggesting there is the transport may be

faster than if it is travelling for example a metre below the level of the

surface through the soil and the more active removal process area.

Q. Right. So microbes tend to travel slower through your top level of soil

and then when they get to more porous open framework areas, they

travel faster.


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JUSTICE STEVENS:Q. Could I just suggest that in that theory, that is being put to you, that

there are a lot more assumptions that need to be considered?

A. Yes. And certainly over a 90 metre distance travelling at a shallower

depth, yes, in my mind at least and it is probably a question better put to

some hydrologists and with careful understanding of the soil and aquifer

layers in the intervening area.

CROSS-EXAMINATION CONTINUES: MR CASEYQ. That was my last question. Thank you very much Dr Gilpin.



JUSTICE STEVENS:Ms Chen, because we just need to talk about the Science Causes.

MS CHEN:I only have two questions Sir.

RE-EXAMINATION: MS CHENQ. Dr Gilpin, hello and thank you very much for your evidence. So perhaps

I could talk to you first about the comment made by Mr Wilson and also

by my learned friend Mr Gedye. They were talking to you about the

86 million cubic metres pumped out over 12 days and so what

Mr Gedye said to you as well, we are worried here. Is there a

continuing source of contamination getting in and so I just wondered

whether you felt able to comment on the concern that the Te Mata

aquifer where the Brookvale Bores are, may be contaminated?

A. I don’t think I can comment and I think other people have attempted to

answer that so I would only be repeating, in a broader fashion. No I

can’t comment as far as the aquifer goes.


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Q. So then Mr Casey talked to you about volumes and concentration and in

fact the fact that most people got sick on 11 August and the

12th of August. So I just wondered, we have tried to replicate the

conditions with the dye testing as you know. So I just wondered if you

could comment on the likely concentration of campylobacter in the early

phases of the breakthrough, when the dye concentration was low.

A. So when the dye concentration, so in the breakthrough.

Q. That’s right, so what happened was, it broke through but as you know,

during the first 24 hours, the concentrations were pretty low and then

really there was a lot more of a breakthrough so it was much later. So

once again we are just talking about concentrations because we are

trying to figure out, what could have caused that number of people to

have got sick within that timeframe and to assist us with issue 3, what

was the cause of the contamination?

A. Which I guess goes to exactly what were the levels in the in-put source.

Well in this scenario, if it was, well at either of the sites where the dye

testing was done. Because if I am correct, it is 17% of the dye in total

came through or some sort of proportion and yes, I am, without, I mean I

might be one that I could perhaps come back to tomorrow with a firmer

answer, but my short answer – my impression would be that if you have

a similar level of removal of – well, yeah, I don’t think I can answer it

directly, but there should – there would – yeah, no, sorry, I don’t think I

can answer. Yeah.

JUSTICE STEVENS ADDRESSES MS CHEN:Q. I think Dr Gilpin might prefer to just think about it overnight –

A. Fine Sir.

Q. - your question and then perhaps he can –

A. That’s fine Sir. I’ve, I’ve spoken with Ms Carter and I’m told that

Dr Gilpin is going to be here all tomorrow to listen to the Science

Caucus.

Q. Yes.

A. And if you did want to call him again, he’d be happy to take the stand

again.


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Q. Or he could just tell counsel assisting –

A. He could.

Q. – what the answer is and –

A. Yes.

Q. – add a paragraph to his brief. I mean, may be very simple.

A. Sounds fine Sir.

Q. And it may be he can't really comment, maybe it's a – let him think about

it overnight.

A. Yes, it's a good idea Sir.

JUSTICE STEVENS:Q. You are not free to go, thank you very much.

A. Thank you, thank you.

Q. On the basis that you will reflect on what Ms Chen has put to you.

A. Great.

Q. And, and I suggest one way of dealing with it is perhaps talk to counsel

and once you’ve considered your answer.

A. Yes, I shall.

Q. If we can avoid calling you back, that’s preferable for you and everyone.

A. Yeah, indeed.

Q. Thank you for coming and responding to the subpoena.

WITNESS STOOD DOWN

THE COURT ADDRESSES MR GEDYE (17:56:40)

Yes, Mr Gedye.

MR GEDYE:We have reached the stage Sir, where we have two days left in this week and

four schedules witnesses, all of which – all of whom are science witnesses.

We have also reached the stage where there has been voluminous evidence

from the experts, but much of this has been updated or has become irrelevant

or is, in fact, accepted by all parties. In my submission, this creates a

pressing need to now devise a focused and truncated dealing with each of the


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four science witnesses. I have noted one fundamental issue and three sub-

issues which I believe are now the only ones at large or the only ones of any

importance to the Inquiry which are at large.

JUSTICE STEVENS:Now, are you working from the Science Caucus reports?

MR GEDYE:Predominantly, although the situation has changed since then. But what I

propose to do is tell you what I think the four issues are and then two submit

that it would be useful to adjourn until 10 tomorrow on the basis that the

Science Caucus may be able to meet one more time before we resume at 10

and try and make progress with these issues. If not, or to the extent they can't

make progress with them, then I propose that each of the four witnesses,

Cussins, Gyopari, Swabey and Hughes, in that order, be asked to give a brief

presentation in bullet point forms on each of these issues tomorrow. Now, I'm

not seeking to exclude any others, but it seems to me if we can focus on these

issues that’s where the Inquiry needs to be. I make the comment Sir, or the

submission, the Inquiry is not aiming or required to determine beyond any

doubt or beyond reasonable doubt any of these issues and it may be that they

can't be taken any further than various levels of probability.

JUSTICE STEVENS:Well, quite frankly, the, the, the work that the Science Caucus did leading to

the reports of the 20th and 27th was exactly what the Inquiry was hoping for

and it reduced the issues down to their essential basis and helpfully listed

levels of probability and possibility and that is precisely where we want to be.

MR GEDYE:Yes Sir, I am conscious that even today, I think there has been a further brief

on dye testing results, so there may be an updating element. And that the, the

fair and useful process is to get each witness on for a bullet-point

presentation. And then of course questions.


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JUSTICE STEVENS:Mhm. And of course, there’s been additional information about the casing.

MR GEDYE:And that – and the issues I'm about to describe will include the state of the

casing and also the state of the alarm and that the Panel should make a

decision on whether they need to hear from any witness about the casing, Mr

Baylis or the RDCL, or about the alarm, Messrs Ehlers and Tomkins and it

may well be that they don’t need to hear from them because the Panel, in my

respectful submission, shouldn't be aiming to nail the probabilities down to a

very, very precise level.

JUSTICE STEVENS:It is not to be a fined-grained analysis necessary?

MR GEDYE:No. And it may be that after the experts have spoken on the casing and the

alarm that you have what you need because there's a lot of evidence already

on those matters. So with your leave, Sir, I would put the issues this way.

There's one fundamental issue, which is which of three pathways was most

probable and the –

JUSTICE STEVENS:Can I just note for the record that when this is transcribed, that what you are

about to refer to is to be transcribed and included in the record.

MR GEDYE:Yes, thank you, Sir.

JUSTICE STEVENS:Rather than legal discussion.


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MR GEDYE:Yes, and I must give the caveat that I haven't had time to formulate these in

precise elegant terms but I think this is the heart of it. The question I want to

ask the witnesses first is, “What level of probability do you attach to each of

the three pathways? Pathway 1 is paddocks to drains to drywells to bore

holes. Pathway 2 is paddocks to drains to the exterior of the casing and down

the exterior of the casing. Pathway 3 is pond to Brookvale 1.” This is crude,

Sir, but everyone knows these pathways and I want to ask each witness,

“What level of probability do you attach to each of those or any combination of

them?” And that is the heart of the cause, that’s the heart of issue 3. There's

three sub-issues. The first is relevant to the bore head entry theory and that’s

the alarm. The question I want to ask the witnesses is, “What probability do

you attach to the alarm in BV1 being defective or inoperable on the 5 th and 6th

of August 2016?” And I would invite the experts to focus on the differences

between Messrs Ehlers and Tonkins and either resolve those differences or

reduce them to their essentials.

JUSTICE STEVENS:And give a probability?

MR GEDYEYes. The next sub-issue is what probability each expert would attach to the

theory that there was a defect in the casing which allowed ingress above the

screens. I will leave it at that and I'd call that issue 3(a). Issue 3(b), I would

say is if there was a hole in the casing such that water got in above the

screens, what significance does that have to the matters upon which the

Inquiry has to report. Putting it another way, what difference would that make

to the findings the Inquiry has to make.

JUSTICE STEVENS:Well, that is how could it have got down to the screens?


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MR GEDYE:Yes, and so that issue, the hole in the casing issue, would apply both to

pathway 2, which is vertical infiltration down the casing, and it would also

apply to pathway 3, which is across from the pond. As I understand it, either

of those pathways in theory might have resulted in higher level ingress

through a hole if there was a hole but I think it's important to ask the experts

what difference would that make to what issue and the fourth issue, and it's a

sub-issue, I believe is still worth addressing and that is, “What significance, if

any, do you put on the fact that 86.73 million litres was pumped out of bores 1

and 2 between the 12th of August and the 28th of August, with continuing

E. coli readings during that period?” I'd call that the volume issue but that is

the issue. In my submission if the experts can colloquially speaking bottom

out on all those matters and address the inquiry tomorrow on those you’ll be

well placed to decide whether you need to hear from anyone about the casing

condition or the alarm.

JUSTICE STEVENS:Or indeed anyone because if they reached agreement in a science caucus

report dated 2nd of February we would receive that and that would be evidence

before the inquiry and what I would emphasise to each and every one of the

experts is to remember what your duty is under the High Court Rules. You

are independent and not to be speaking for any particular party. I address

that remark to each and every one of Mr Cussins, Gyopari, Hughes and Dr

Swabey and we expect the utmost independence and objectivity.

MR GEDYE:I would add only Sir that, of course, any expert could raise any other issue but

the inquiry would want to be very probing about why it matters and where it

gets you because it seems to me the caucus itself has come down to these

essential issues and indeed the alarm and the casing are only sub-issues,

they're only elements of the pathways but they appear to be where there is

still a difference and in my submission that would be a useful way to proceed

and I think if we started at 10 if would give the caucus a decent chance in the

morning to get something.


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JUSTICE STEVENS:Well I don’t mind even starting at 10.30 because we’re not going to be under

any pressure, the more that’s agreed the better. So Mr Casey, do you have

any comments?

MR CASEY:Just two if I may thank you Sir. The science caucus group does not include

Mr Tonkin or Mr Ehlers and on the question of the alarm it may be of benefit if

they could be directed.

JUSTICE STEVENS:Well they can talk to them.

MR CASEY:They just talk together, whether they need to be part of the science caucus

was the question or whether they should be.

JUSTICE STEVENS:If that’s helpful on that sub-issue then by all means.

MR CASEY:It may be assisted if you were to give a clear indication you'd like them to, if

that was the case, but I'm not saying you need to do that.

MR WILSON:My view is that they probably should consider to first sit down and see if they

can agree.

MR CASEY:That’s what I was expecting. The other one is

JUSTICE STEVENS:Let's just clarify that so that the recommendation or the issues that have been

identified by Mr Gedye are to be considered on the basis that Mr Ehlers and

Mr Tonkin will, with reference to the matter that they are particularly


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concerned about meet together beforehand, hopefully this evening, and see if

they can reach agreement and then having done so and they too need to be

reminded of their obligations. You’ll assist with that?

MR CASEY:Yes.

JUSTICE STEVENS:Then any agreement can be relayed to the science caucus, how does that

sound?

MR CASEY:Thank you very much for that Sir, I just wanted to be clear about that. Look

the other point was my learned friend referred to the significance of the 86

and some millions of litres between the 12th and the 28th of August. I know

that on the information that is before the panel in one of the exhibits, that’s the

start point and the end point of the measuring but I'm not sure why the amount

of or the volume of water pumped before the 12 th would not be included in

that, we don’t have exactly those figures but presumably there's a…

JUSTICE STEVENS:Well presumably those are easily obtainable so extend it through to the, what

date, the 4th?

MR CASEY:The 5th or the 6th?

JUSTICE STEVENS:The 5th or the 6th, Mr Gedye?

MR GEDYE:There's logic in that Sir, we've just never had those figures but yes the

evidence is that the pathogen probably got in on the 5th or 6th.

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JUSTICE STEVENS ADDRESSES MR GEDYE:Q. Mr Gedye?

A. There is logic in that Sir. We have just never had those figures, but yes,

the evidence is that the pathogen probably got in on the 5th or the 6th.

Q. It's 5th to the, to the date that, that the bore was shut off.

MR CASEY:Oh, yes, yeah, yeah.

JUSTICE STEVENS:I think it was earlier.

MR CASEY:The far date that –

MR GEDYE:The 25th of August.

MR CASEY:The 25th of August.

MR WILSON:I'm – I would suggest some guidance, that we don’t actually need the, the

actual numbers. The graphs are pretty clear that that’s the consistent daily

demand around that period of the year. If we just simply, simply extrapolate

the graphs backwards, we will get sufficient understanding.

MR CASEY:I had spoken to Mr Cussins, he’s had the work done, it's just that it's not

before you.

MR WILSON:Oh, fine.


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JUSTICE STEVENS:Well, that’s great.

MR CASEY:He, he’ll have the answer if, if it became an issue of, of fact.

JUSTICE STEVENS:So yes to that.

MR CASEY:Thank you.

JUSTICE STEVENS ADDRESSES MS RIDDER:Q. Ms Ridder, any comments on that proposal?

A. No, thank you Sir.

Q. You think it's helpful?

A. Yes, I do Sir.

JUSTICE STEVENS ADDRESSES MS BRYANT:Q. Ms Bryant?

A. No comments Sir. Am I correct in understanding that this aspect of the

hearing tomorrow is going to be focused in on issues of causation

solely?

Q. Yes.

A. And the intention is –

Q. It's matters relating to the product of the Science Caucus.

A. Thank you Sir, then I have no comments to make.

Q. Which are the issues that Mr Gedye has just gone through.

A. Thank you Sir.

JUSTICE STEVENS ADDRESSES MS ARAPERE:Q. Ms Arapere?

A. I have nothing to add to that Sir.

Q. No?


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A. No submissions on the proposal.

Q. Are you happy with the proposal?

A. It sounds sensible to reduce time.

Q. You consider it is fair and reasonable?

A. Yes Sir.

JUSTICE STEVENS ADDRESSES MS CHEN:Q. Ms Chen?

A. Thank you Sir, I just want to make one comment about the sub-issue

which is the probability that the defect in the casing allowed ingress

above the screens. Just as my friend Mr Casey raised the issue with

having Tomkins and Ehlers involved in the – in this – in the float switch

debate, it, it might be helpful if the Caucus could also have access to the

video and Mr Baylis because, as you know, the Science Caucus

decided –

Q. Well, how about on this basis, if they need to, then they can call for that.

A. That would be helpful. Thank you Sir.

Q. All right?

MR WILSON:They may, they may also wish to talk to these two.

JUSTICE STEVENS:Yes.

MR WILSON ADDRESSES MS CHEN:Q. They may also wish to talk to Messrs Grace and Miley from –

A. Yes, of course.

Q. – RDCL.

A. Of course, of course.


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MR CASEY:I understand in that respect their caucusing today was actually at the

premises of RCDL, so I think all of that was covered today, but there’s no

harm in, in going there again if they need to.

MR WILSON:Except the, the only comment I would make to that is that Dr Gyopardi wasn’t

there, apparently wasn’t there today.

MR CASEY:Oh, no, that’s true, that’s true.

JUSTICE STEVENS ADDRESSES MR CASEY:Well and they also hadn’t been reminded of their obligations, Mr Casey. You

get what I’m saying?

MR CASEY:Yes, I do.

MR GEDYE:I'm sorry to go into it Sir, but that, that worries me a little because today’s

Caucus didn't produce a useful result, it just said that RDCL’s equipment

could only measure down to a certain level, it seemed very, very small to me,

and that there was potentially an even smaller level below that which would

allow for the possibility of a casing and I’d be wanting to ask these witnesses

how small is the level that RDCL got to and if a hole was smaller than that

would that hole let through the sort of water that would make the event and is

there a common-sense assessment where you stand back and say, “Does it

really matter if it only went to that small size and what on earth would a

smaller size show?”

JUSTICE STEVENS:Of course and which is really directed to the level of probability.


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MR GEDYE:So I’d hate to see us just back tomorrow with that same deadlock, if that's

what it is. I want these witnesses to say, “Well, how – what does the RDCL

camera show us in terms of smallness, below that are you effectively just

pinhole or something very, very small, and that in itself would mean that

volumes of water could not have got in, so –

JUSTICE STEVENS:Pinhole or pinpricking?

MR GEDYE:Yes, exactly and it seems to me the Caucus needs to work a bit harder on that

issue because it wasn’t helpful where we got to.

JUSTICE STEVENS:Well that – I thought that’s what I was trying to say.

MR GEDYE:Yes, well, I’m sorry Sir.

MS CHEN:Sorry Sir and obviously I’m not a technical expert, but my understanding is

RDCL didn't, didn't go down bore. It's the – it used a different methodology,

so – and anyway.

JUSTICE STEVENS:So, well, that’s what the Science Caucus is going to look at.

MS CHEN:Yes, that’s good Sir. Just want to make sure they’ve got all the best

information to make their decision.

JUSTICE STEVENS:Of course. Very well.


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MR GEDYE:Shall we aim for 10.30 Sir?

JUSTICE STEVENS:Seeing as we’ve kept you to overtime tonight, we’ll make it a start at 10.30

tomorrow. Thank you all very much for a long day. We’ll adjourn until 10.30

tomorrow.



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