Part 6: How the work was carried out

6.1
Events moved quickly following the Council's decision. The bulldozer arrived on site on 8 July 2017 (three days after the Council meeting) and work started on 14 July 2017.

6.2
The work was carried out in two stages:

• The first stage involved using the bulldozer to shift riverbed gravel to build a stopbank.
• The second stage involved completing the stopbank and placing rock along the river side of the stopbank to protect it from erosion.

6.3
The work took about four months to complete. It resulted in the construction of 700 metres of rock-protected stopbank on the bank of the Waiho River, and raising the level of a 250-metre length of the existing flood embankment. The proposed work on the infiltration gallery was not carried out during this time but we understand it has since been completed.

6.4
In this Part, we describe how the work was carried out and some of the issues and concerns that arose along the way, in particular:

• discussions between the Council and the Regional Council about the steps the Council needed to take to comply with the Resource Management Act;
• apparent confusion or misunderstanding about the scope of the work; and
• a proposal the Mayor put forward part-way through the implementation process to use the bulldozer to carve out a new pond for the wastewater plant.

Appointing Westroads Limited to act as head contractor

6.5
On 6 July 2017, the day after the Council meeting, the Acting Chief Executive called the General Manager of Westroads Limited (Westroads) to ask that Westroads act as head contractor for the work.

6.6
Westroads is a wholly owned subsidiary of the Council. It operates as a general contractor, specialising in water utilities maintenance, roading, waste management, and parks and reserves.

6.7
We discuss Westroads' role and contracting arrangements in Part 7.

West Coast Regional Council's request for information about plans for the work

6.8
On the same day (6 July 2017), the Chief Executive of the Regional Council emailed the Council to say he had seen the Mayor's Facebook post (from 2 July 2017), and asked for clarification of the Council's intentions.

6.9
He said that, when the two Councils had last discussed the matter, the Council had been planning only minor work to ensure that the oxidation ponds operated as best they could while a more permanent solution was arrived at.

6.10
He said that the Regional Council understood the Council's decision to carry out flood protection work but needed to understand the scope of what the Council was planning so that the Regional Council could advise what consents were needed and provide advice (if required) about stopbank design.

6.11
He also pointed out that there was potential for the Council to operate under the Regional Council consent that allowed rock extraction from the riverbed. His email ended: "Keen to help where we can and make sure that things are done within the bounds of the RMA, really want to be on the same page and avoid any issues that could arise from any proposed works."

6.12
In his response, the Council's Acting Chief Executive explained that the Council had agreed "to repair the wall" and "to restore a working disposal gallery". He said the Council's sole intent was to protect what the Council had there and to make it compliant, and that the ponds would need to be there for at least three years and up to at least 10 years, depending on the options chosen from the Tonkin + Taylor report.

6.13
The two Chief Executives agreed to meet.

Concern raised about bulldozer working without a consent

6.14
Their meeting took place on 10 July 2017. We were told that the Mayor joined the meeting for a time. It was agreed that, following the meeting, the Council would submit a plan for the work.

6.15
In the meantime, the bulldozer had already arrived on site. On 12 July, the Regional Council sent a reminder about the agreement the Council had made to submit a plan. On 14 July, the bulldozer began work.

6.16
On 16 July, the Mayor posted three videos on Facebook of the bulldozer in action. According to the Mayor in the first video, the bulldozer had been on site for a couple of days and the basis of the wall was starting to be formed. The first and third videos show both Councillor Havill and the Mayor on site.

6.17
On the same day (16 July), in response to a concern from a member of the community, one of the elected members emailed the Acting Chief Executive to ask him to confirm whether the Council had a consent for the work.

6.18
The Mayor, rather than the Acting Chief Executive, replied to this email. He said the Chief Executive of the Regional Council had advised that the Council could use the Regional Council's consent, which was in permanent place for river work.

6.19
Further discussions took place the following day (17 July 2017) between the two Councils. Later that day, the Chief Executive of the Regional Council emailed his staff and copied in staff at the Council. The email said that the Mayor had confirmed that, once the Council had finished the gravel base for the work, it would stop work and wait until the design work for the stopbank had been done and consents sorted before carrying out any further work.

6.20
It was also noted in the email message that the Council's Acting Group Manager: District Assets was now involved in the project and that he would be going to Franz Josef the next day with consultants from Opus. They planned to meet with Regional Council staff later that same day to discuss next steps.

West Coast Regional Council asks for the bulldozer work to stop

6.21
On 19 July 2017, staff from the Regional Council visited the site and asked the bulldozer operator to stop work.

6.22
In an email to the Council, the Chief Executive of the Regional Council said this was because the Regional Council had not yet received a plan for the work. He explained that:

• Even if the Council was proceeding with the work under the "emergency works" provisions in the Resource Management Act, it was still required to notify the Regional Council and apply for the necessary consents.
• A key point of the consent process was engaging with potentially affected parties, namely Te Runanga o Makaawhio, the Department of Conservation, and NZTA.
• In regard to NZTA, the consultation would need to cover "tying into their asset" (that is, joining the Council's stopbank to the existing NZTA stopbank) and undertaking work adjacent to the NZTA stopbank.

6.23
The reference to the emergency works provisions in the Resource Management Act is a reference to section 330 of that Act. The significance of section 330 is that, if properly invoked, it allows a local authority to take preventive or remedial action (for example, to prevent loss of life or serious damage to property) without first obtaining a resource consent, although a consent must be obtained retrospectively. Carrying out work that requires a consent without first obtaining one is otherwise unlawful.

6.24
As well as reminding the Council of its obligations under the Resource Management Act, the Regional Council also asked for assurances about the scope of the work the Council was planning to carry out under the emergency works provisions. The Chief Executive explained that this was because the bulldozer driver had told Regional Council staff that, once he had finished work on the stopbank, he would be moving to the site of the wastewater plant to begin work there.

6.25
By inference, we understand this to mean that the Regional Council wanted confirmation that the work the Council was planning to carry out in reliance on the emergency works provisions (and therefore without first obtaining a resource consent) was the work necessary to prevent the wastewater plant from flooding – not, for example, work related to upgrading the wastewater plant itself.

6.26
The Chief Executive of the Regional Council suggested that, as a way forward, the Council's Acting Group Manager: District Assets should come to the Regional Council's offices the next morning to work through the plan with Regional Council staff, including river engineers.

6.27
The Mayor sent a response to this email in which he accused the Regional Council of failing to act to protect important assets from flooding and of hiding behind the Resource Management Act. He said that, if the ponds flooded again, the Regional Council would be held responsible.

Westland District Council prepares plan and design

6.28
On 20 July, the day after Regional Council staff had asked the bulldozer driver to stop work, the Council's Acting Group Manager: District Assets met with Councillor Havill to discuss his design for the work and to prepare a written plan. Up to this point, there was no plan for the work, and the proposed design for the stopbank had not been committed to paper.

6.29
Following this meeting, the Acting Group Manager: District Assets prepared a drawing detailing the earthworks design of the stopbank, which he sent through to the Regional Council later that night.

6.30
The completed drawing showed a new straight stopbank connecting with the existing NZTA stopbank and extending 700 metres downriver, past the wastewater ponds and with rock armour on the stopbank's river side. We were told that the drawing was for the purpose of resource consent application, but by default it became the construction design.

6.31
Some modifications were later made to Councillor Havill's original stopbank design as the result of discussions with Regional Council staff.

Consultation with the New Zealand Transport Agency

6.32
On 21 July 2017, the Acting Group Manager: District Assets emailed NZTA to request permission to "tie" the Council's new stopbank to NZTA's existing stopbank.

6.33
NZTA approved the Council's plans on 27 July, subject to certain conditions and design modifications. These included:

• the Council ensuring that the existing floodbank was raised to the same level as the Council's new stopbank; and
• the Council continuing to raise the whole stopbank in response to rising riverbed levels.

Notification of emergency works

6.34
On 21 July, the Chief Executive of the Regional Council emailed the Acting Group Manager: District Assets to confirm that the Council was required to notify the Regional Council, in writing, of the emergency works within seven days of the work commencing. The Council then had 20 days within which to apply for resource consent.

6.35
On 24 July, the Council formally notified the Regional Council that it had "initiated emergency works in the Waiho River to protect Westland District Council owned utility and roading infrastructure, including the Franz Josef wastewater treatment plant" and that the work was being done under section 330(1)(b) of the Resource Management Act (as emergency works).

Project Manager appointed

6.36
In late July 2017, the Acting Chief Executive contacted a former employee of the Council to ask for his help with the project. The former employee had previously worked as Operations Manager at the Council and is a qualified engineer. On 27 July, the Mayor, Councillor Havill, and the Acting Group Manager: District Assets met with the former employee to discuss help the Council needed with putting contracts in place and with the Council's application for a resource consent. Up to this point, there was nothing in writing with either Westroads (the Council's appointed head contractor) or either of the companies subcontracted to carry out the work.

6.37
The former employee was appointed as Project Manager and started work on 31 July.

Concerns raised about the scope of the work and the procurement process

6.38
A Council meeting was held on 27 July 2017. This was the first Council meeting since the 5 July 2017 decision.

6.39
By this time, questions were already being asked by members of the community and elected members themselves about the Council's procurement process and about why a new stopbank was being built, rather than the Council simply working to strengthen the existing floodbank.

6.40
The minutes of the 27 July meeting recorded that the Council discussed progress on the work at this meeting. However, no detail of that discussion is recorded in the minutes.

6.41
According to a report in the Hokitika Guardian, concerns were raised at the meeting by several of the elected members about both the scope of the work and the Council's procurement process.

6.42
The Hokitika Guardian also reported that the Mayor advised at the meeting that an estimate had been sought for carving out a new oxidation pond at the site of the wastewater plant.

The Mayor's proposal to use the bulldozer to carve out a third pond

6.43
On 1 August 2017, the Mayor emailed the other elected members to tell them the Council had received a quote of $100,000 for the bulldozer to carve out a new three-hectare pond at the site of the wastewater plant.

6.44
He said the work would need to be carried out within the next five days, as the bulldozer was due to head to Wanaka after that and that, if the Council went ahead with building a third pond now, this meant the total cost of the protection work, including the new pond, would still be less than the $1.3 million approved by the Council at the 5 July meeting.

6.45
He said that a new pond could be completed and properties protected for under $2 million. He compared this to the figures quoted in the Opus report for alternative pond sites that started at upwards of $3.75 million.

6.46
In response to questions from some of the elected members, the Mayor sent out another email in which he said the decision to carve out a new pond was not a "done deal" and that he was seeking a consensus from the elected members for this work. He said there were potential cost savings to the Council in carrying out the work while the bulldozer was on site but that, if there was no consensus among the elected members, a special meeting would need to be called or the work postponed until a later date.

6.47
On 3 August, the Regional Council notified the Council that it would need to submit an application for resource consent by 21 August 2017. At the same time, the Regional Council asked the Council to confirm that the work it was doing under the emergency works provisions of the Resource Management Act would be limited to the earthworks required to form a gravel bank, and that it would not include rock armouring or the creation of more oxidation ponds.

6.48
On 4 August 2017, discussions took place between Council staff and the Project Manager and a meeting was held between the Acting Chief Executive, the Mayor, and Councillor Havill. Following these discussions it was agreed that the proposed creation of an additional pond would be outside the scope of the work agreed to by the Council at its 5 July 2017 meeting.

6.49
The Mayor emailed the other elected members to say that there was no consensus for his idea of using the bulldozer while it was at the site to carve out a third pond, and that if a decision was made in the future that the ponds were to be extended in their current location, this would be a separate project.

6.50
On 15 August, the Council confirmed to the Regional Council that the emergency works would not include the creation of more oxidation ponds but that it would include rock armouring.

Westland District Council applies for retrospective resource consent

6.51
On 18 August, the Council submitted its application for a retrospective resource consent. The application stated that the purpose of the work was to prevent flooding of land behind the stopbank, including existing and proposed wastewater treatment infrastructure and developments on private property.

6.52
On 7 September, the Regional Council notified the Council that its application for resource consent could proceed without public notification. However, the Council would need written approval from the Department of Conservation, [NZTA], and Te Runanga o Makaawhio.

Completion of the work

6.53
The work was completed in early November 2017.

6.54
The Council has told us that it has subsequently received a resource consent for the work.

Unauthorised work at the wastewater treatment plant

6.55
In May 2018, part way through our inquiry, we were told that the bulldozer, which, contrary to expectations, was still in Franz Josef, had carried out earthmoving work at the wastewater plant site and cleared some vegetation.

6.56
At this point, Council staff were well advanced on a project for an improved pond system at the current wastewater plant site. However, the Council was yet to formally approve the project and consult the community. We wanted to understand why work at the site had begun.

6.57
When we asked for an explanation, the Council confirmed that the bulldozer "had entered the site of the wastewater plant and cleared some vegetation", but said that "it had not been instructed by Council staff to do so". We were told that very little damage had been done and that it had been decided not to pursue the matter further. We were also told that the Council had not received any invoice or made any payments for this work.

6.58
It seemed inherently unlikely to us that the company that owns the bulldozer, or the bulldozer driver, would have carried out work without having been instructed by someone at the Council to do so. So we asked more questions to try to find out who, if not Council staff, had instructed the bulldozer driver to do the work and whether any elected members were involved.

6.59
The Council's response was that it did not know who had instructed the bulldozer driver, but we were told again that instructions had not come from Council staff and that there had been no previous discussions between Council staff and Blakely Mining (the employer of the bulldozer driver). We were told the Council was "unsure" whether any elected members had been involved in any discussions with Blakely Mining about this work.

Our observations on the way the work was carried out

6.60
Our detailed comments on the way the work was carried out are in Part 9. At this stage, we make the following observations.

6.61
Work proceeded on the ground before any plans or designs had been drawn up, before any contracts were entered into, and before the Council had confirmed with the Regional Council what consents the Council would need under the Resource Management Act. As a result, staff from both Councils had to work in "catch up" mode after the work had already begun to ensure that the design and construction of the stopbank would be "fit for purpose" and would qualify for resource consent.

6.62
It is not clear who was actually managing the work on the ground during the early stages.

6.63
We found no evidence of the Council turning its mind to its obligations under the Resource Management Act until the work was already under way. In particular, we found no evidence of the Council seeking advice on the extent to which it could rely on the emergency works provisions of the Resource Management Act or the Regional Council's existing resource consent until the work was already under way.

6.64
There is disagreement among the elected members about the scope of the work the Council had decided to carry out. The minutes of the Council meeting on 5 July 2017 record that the Council had resolved to maintain the existing flood embankment and develop a new infiltration gallery. The day after the Council meeting, when asked to clarify the Council's intentions, the Acting Chief Executive told the Regional Council the sole intent was to protect what the Council had there and make it compliant. This is consistent with what is recorded in the minutes of the meeting. In the event, the Council built a new 700-metres-long stopbank. Several of the elected members have told us this was not what they agreed.

6.65
The bulldozer, which the Council had been advised was available for only a short time, remained at the site for at least seven months after the work had been completed. In May 2018, the bulldozer was used to carry out work at the site of the wastewater plant. It is not clear what the purpose of this work was or who authorised it. The Council was still in the process of deciding whether the wastewater plant should remain at its current location.

6.66
The Council told us that no Council staff were involved in instructing the bulldozer driver to carry out this work, but has been unable to confirm whether any of the elected members were involved in the unauthorised work.