An Environment Court appeal against the Otago Regional Council's $21.4 million Leith Lindsay flood-protection scheme has failed.
Judge Jeff Smith issued an oral decision dismissing the appeal, an outcome Otago Regional Council chief executive Graeme Martin yesterday said was inevitable for a case that ‘‘should never have been taken''.
Former Otago Catchment Board engineer John Gillies and former Otago Regional Council investigations engineer Neil Johnstone appealed a decision to grant consents for the flood-protection works, on the grounds the work failed to provide a consistent and safe standard of flood protection.
The appeal was heard this week in the Dunedin courthouse by Judge Smith and commissioners Diane Menzies and Russell Howie.
In his decision, Judge Smith said it was difficult to discern the focus of the appeals.
Although the appellants had said they were concerned about public safety, only two public safety issues were raised, one aspect of which ‘‘proved illusory''.
The court had remained in doubt until late in the case about the issues underlying the appeal.
After the decision, Mr Johnstone said he did not plan to take the matter any further. ‘‘We clearly have to accept the decision.''
He said the pair had taken action in the public's interest, and he felt some good had come from it.
‘‘It has enabled a reassessment of flood-frequency analysis that [had] not been carried out prior.''
It had also highlighted projected increases in flood flows from potential climate-change effects, and erosion issues affecting the right bank of the Leith, he said.
‘‘On the basis of those, I feel we have achieved things.''
But Mr Martin said it was ‘‘a shame'' the case had been heard at all.
‘‘It [the project] had to be stalled while these shenanigans were going on.''
The decision cleared the way for the work to proceed, and he expected the first phase of construction to start later this year.
In the decision, Judge Smith said the appellants had criticised the work of expert witnesses, but the court preferred the evidence of the council's witnesses and peer reviewers to that of the appellants.
The appeal raised technical matters, and argued a design that would take a higher volume of water was necessary.
But Judge Smith said as long as the process was transparent and robust, the level of protection was ‘‘best left to the community''.
One appellant wanted a design that would take a 200cumec flow, he said.
‘‘We are satisfied, overall, a capacity of 171cumecs is appropriate for the design.''
‘‘We conclude it represents a major improvement.''
Climate change could result in more intense floods, but the council would be able to make improvements in future.
‘‘Given the uncertainties, we believe the current design is an appropriate response to those issues.''
The court was satisfied the scheme achieved a satisfactory balance between retaining heritage and existing structures, and improving flood protection.
‘‘It follows . . . that this appeal fails. Accordingly, the appeal is dismissed."
A decision on costs was reserved.
