New legal advice says South Wairarapa District Council’s [SWDC] plans to discharge treated effluent to gifted land is “defensible”, despite the council not seeking a court order to do so.
“This is because the terms of the trust allow for council to deal with the Pain Farm for the benefit of the inhabitants of Martinborough,” the advice states.
The Pain Farm land was bequeathed to the former Martinborough Borough Council by George Pain in 1932 to be used as “a sports ground for the residents of Martinborough and as a playground for the children”.
A 1966 court order approved the following scheme: “that the income of the trust lands should be used … in maintaining and improving the Borough’s parks, sports grounds, camping ground, swimming baths, providing, equipping and maintaining sports facilities and a children’s playground in such manner and in such proportion as the council shall from time to time decide”.
Last year, SWDC requested that 76 hectares of Pain Farm be designated for “waste disposal purposes” in the Wairarapa Combined District Plan.
The requested designation came as a shock to the community, despite the project being signalled in the council’s 35-year-consent, which was approved in 2016.
At a recent meeting, elected members asked council staff to provide a report with sufficient information to “reassure residents and interested people of the legality of the use of Pain Farm for wastewater disposal and that consultation occurred with the community at the time that decisions were made resulting in its designated use”.
Included in the report, which will be discussed by SWDC on Wednesday, is legal advice spanning the years 2011 to now.
Legal advice to the council in 2011 stated that “utilising a portion of Pain Farm to dispose of human effluent would not be consistent with the purpose for which it was gifted to the council” and that the council would need a court order to do so.
Further legal advice in 2013 said the council had two main options for confirming whether Pain Farm could be used for effluent disposal: to seek a declaration from the High Court; or to seek an order confirming a new scheme for the land under the Charitable Trusts Act 1957.
“For both options, the likelihood of success will largely depend on whether the use would continue to generate an income stream for use in maintaining or upgrading recreational facilities in other locations.
“If council opted to seek a new scheme, the court may also wish to revisit the issue of whether the Pain Farm itself could be used for recreational purposes, given the lapse of time since the last scheme was approved.”
Legal advice to the council regarding “restrictions on use of property” from 2014 states “in our view, this proposal is not inconsistent with the terms of the trust under which the council holds the land”.
The latest legal advice, received on March 5, states the council’s position “that a further court order is not required in respect of its ability to discharge treated human effluent to Pain Farm” is defensible.
“We understand the discharge will be treated and not affect the land, therefore there will be no material decrease in value of the Pain Farm,” the advice states.
“Further, the discharge of the treated human effluent is in pursuit of upgrading Martinborough’s wastewater system, which is of benefit to the inhabitants of Martinborough.
“Finally, we note the intent to produce baleage on the area of the Pain Farm discharged to, will be a revenue stream that applies in accordance with the trust [and the Scheme].”
The report to the council also states the proposal underwent significant consultation, based on available records.
Last month, 18 nearby residents sent a letter to SWDC saying that “using the Trust Land to dispose of wastewater and/or human effluent is not an option for SWDC or the regional council without significant legal steps being taken, none of which have been taken at this time”.
“Furthermore, the fact that SWDC has failed to plan for sewage management isn’t a valid reason for further degrading the Trust Land, especially when the Trust Land was gifted for another purpose.
“That a sewage/wastewater plant needs to be put ‘somewhere’ is not a valid justification for why George Pain’s bequest should be abused and residential areas impacted.”
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