Bureaucratic Excrement

It was Waiheke Island, not Tiananmen Square; it was a property developer, not a student; and it was a bulldozer, not a tank, but the principle was the same: one man standing up for his rights against the tyranny of the state.

In September 1997, Auckland entrepreneur, Adrian Chisholm lodged an application for a resource consent from the Auckland City Council to build a tourist resort on Waiheke Island. He had purchased the land, some 50 hectares, three years earlier and had spent, in his words, "hundreds of thousands of dollars" over and above the purchase price on consultants, draughtsmen and lawyers to prepare a case for Council. But the process had gone smoothly and he was confident his investment would pay off. Then, one month before consent was granted, the Council, without warning, started bulldozing the land one metre from his boundary so they could empty the island's raw sewage into ditches. We're talking human excrement in its solid form, plus condoms, tampons and every other nasty that people flush down the loo into their septic tanks.

Today Adrian Chisholm has lost every piece of property that he worked to own. He was arrested and charged with trespass for blocking the path of the Council's bulldozers. Because of the Council's behaviour, his financial backers have abandoned him. Deprived of his property, and therefore his income, he went on the dole to feed his children. His wife was forced to sell her business. But a broken man he most definitely is not. He is suing Auckland City Council, the Waiheke Community Board, and 12 of their members and officials for more than $7 million. Chisholm will not settle; he will have his day in court. The man who made headlines when he stood in the path of the bulldozer, to be arrested and carted off to the police station, is not going to disappear into history like the anonymous student in Tiananmen Square.

Chisholm's crime? He dared to try and realise an entrepreneurial dream on an island in the Hauraki Gulf where the culture of envy prevails, where another resident had been refused permission to build a modest home on a promontory because it represented "gross conspicuous consumption" and might have upset passing ferry passengers. Adrian Chisholm's vision was a $25 million country club with restaurant, conference facilities and luxury villas, nestled amid strategically planted vineyards. Guests would sip the produce on shady terraces as they gazed at the sun setting over the Pacific. "Eco-tourism", Chisholm called it and anywhere else in the world he believes his energy would have been welcomed. Not on Waiheke, where it's considered more environmentally friendly to dump raw sewage into 30cm deep by 30cm wide trenches.

Chisholm planned to develop his resort on land he owned which bordered a large recreational reserve, owned by the Auckland City Council, part of which is leased to the Waiheke Island Golf Club for its nine-hole course. The Golf Club wanted to expand the course to an 18-hole facility, so an agreement was reached with Chisholm whereby he would provide some of his land for this extension, and in return he would receive an easement for an access road, paid for by him, into his resort. This also benefited the Golf Club as it meant players no longer had to drive across the fairway to reach the clubhouse. The Auckland City Council supported the plan, and wrote to the Waiheke Community Board on 11 December 1997 arguing the case for Chisholm.

The Community Board, however, did not support the plan. Gordon Hodson, a community board member, had already informed the Council in September 1997 that land by the golf course would be a good place to dump the sewage. For the past ten years the sewage had been sucked out of septic tanks then dumped on two farms. However, that permit was about to expire, something the community board had known for ten years but had failed to act upon and find an alternative, appropriate site for dumping.

Chisholm knew nothing of this, however, and at Christmas 1997, when the time for objections had passed, he was confident that his resource consent would soon be granted. Then the bombshell.

Two days before Christmas the Auckland City Council, with authority on behalf of the Community Board, used emergency powers, which it had invoked in secret on 10 December 1997, to prepare to dump raw sewage right next door to where the country club would be built. Chisholm, in hindsight, believes the Waiheke Island Community Board was out to get him, because he is a "property developer" and therefore a marked man. He says that when the Auckland City Council asked the Community Board to suggest a new site for the sewage the Community Board, which is philosophically opposed to any sort of development on the island, saw its chance to thwart Chisholm's plans.

The first that Adrian Chisholm knew of this development though was when he picked up the Herald on 7 January 1998 and read the news that the Council had found a new sewage dump. He immediately phoned Greg Patterson, the stormwater manager in utility planning at the Council, and was told the Council had "emergency powers" to prepare the site for dumping sewage there. Chisholm was told it was "irrelevant what you're doing over the fence." With great difficulty, Chisholm managed to find a lawyer (remember, this was the holiday period, when the courts are closed and lawyers are away) to accompany him to the Council for a meeting. "That meeting was like being in the presence of a lynch mob," says Chisholm. "My lawyer asked the council,
'When do you intend consulting with my client?' and Sean Derry [a bureaucrat since resigned] told her, 'We're doing it now. This is an emergency'. Greg Patterson asked, 'Tell me what you're doing over the fence' — as if he didn't know, when he'd been negotiating with the Golf Club about the roadway.

"At that stage I didn't want to fight the Council," Chisholm says. "I just wanted to sort out the problem so I could proceed with my development, and Council could solve the sewerage problem for Waiheke residents. I thought we would come to some agreement."

As writer for The Free Radical, if I'd been given a dollar for every time I heard that sentiment expressed by individuals who thought they could work with local governments...well, you get the picture. The Auckland City Council had no intention of "solving the problem". Chisholm said that Patterson offered to dump the sewage at Woodside Bay (right beside another Adrian Chisholm subdivision which had just gone on the market) where two farmers had responded to an advertisement run by the Council seeking land for a sewage dump. However, the Council said it would have to get signed approval from every neighbour by 3pm that day. "Every neighbour?!" Chisholm expostulates. "I asked what's changed? Where's the consent from me as neighbour to the golf club site?"

He also offered to pay, personally, for a barge to take the sewage across the water from Waiheke to the mainland to an existing sewage treatment plant in Mangere. The Council wouldn't accept this because, they argued, it would set a precedent and when the month was up they wouldn't be able to continue to finance barging the sewage off the island. The meeting ended with no clear solution, but with discussion set to continue the next day. Adrian Chisholm dropped his lawyer back at the Waiheke ferry between three and four o'clock, then received a call on his cell phone from the Council informing him they would be "proceeding as planned...so I drove straight to the Oneroa cops [Waiheke Island police] and told them I would physically stop the bulldozers. I said if anyone is breaking the law, it's the Council, not me, for proceeding to dump sewage on a recreational reserve which is there for people's enjoyment."

The next day, 8 January 1998, Chisholm stood in front of the bulldozer to halt its progress. A reporter from the Herald, Adele Ferguson, trying to interview him, was warned that she, too, would be arrested if she didn't leave. She fled, and Adrian Chisholm was put in the police wagon and taken to the station for processing. As he was marched away he shouted to his wife, Christina, to "ring the Prime Minister for help." Christina, their 17-year-old daughter and her friend, had to walk back through the golf course to their cars, and were given a verbal warning and banned from the reserve for two years.

Chisholm's last directive to his wife was not mere melodrama. He had appealed to Parliament for help. Under Section 25 of the Resource Management Act a person can ask the Government to intervene and appoint an independent commissioner to sort out such a situation. "I had spoken to John Luxton, acting Prime Minister, on the phone for 90 minutes the night before, and told him I wanted that clause invoked."

Chisholm managed to get the Government on the run — for a while. Simon Upton was called back from holiday to take over the situation. Chisholm's lawyer had phoned the Environment Court, and it was arranged to get Judge Kenderdine, of Wellington, on standby to hold an emergency hearing by conference call so Chisholm could apply for an injunction to stop the bulldozers. Kenderdine was reluctant to grant an interim injunction over the telephone without Chisholm signing off on an affidavit, so the Judge had to be put in the picture — Chisholm had been arrested and was, at that precise moment, "in the cells."

Judge Kenderdine decided to set a time and place with a mediator to try and settle the situation. So on 9 January Chisholm and his lawyers met for the whole day with the Council and its lawyers to try and negotiate a deal. "It had to be a deal we could all live with, and I wasn't happy with it but it was the best I could get. After all, I was being bullied here. Every so often during the day the Judge was telephoned to be informed of what progress was being made. "At 4 o'clock in the afternoon we agreed on a solution," says Chisholm. "Council would move its emergency powers to Wilma Road where there was an existing sludge dump which it would expand. At the same time Council would explore other sites and if nothing suitable was found and they had to return to the golf course, I would be given three days' notice so I could go back to the Environment Court and apply for an injunction to stop them. For 30 days I would work with the Council to sort out the situation." Judge Kenderdine, on the phone in Wellington, witnessed by ear the signing of this agreement.

The next day Adrian Chisholm was relaxing in a café, feeling pretty pleased that a disaster had been averted, when he received a call on his cell phone from a neighbour. It was about four o'clock in the afternoon: "He said, 'if you think that deal you negotiated which was reported in the Herald this morning is what's happening you'd better get your arse over here. There are bulldozers, diggers, mowers all over the place — it's huge'." The Council was back with a vengeance and the clearance and preparation of the sewage site was proceeding on an even grander scale. "I couldn't believe it. We had an agreement, witnessed by a Judge. This was contempt of Court," says Chisholm. "So I rounded up my neighbours, flew my own lawyer back from holiday, and resolved to sort out this delinquent Council for once and for all. The Council's excuse was that they weren't dumping any sewage, they were just preparing the land. But they didn't have resource consent for that, and they didn't have emergency powers for that site — they'd been uplifted to Wilma Road. I had to go back to the Environment Court to Judge Kenderdine and she ordered the City Council to stop all work." However, she gave the Council one further chance, warning she would not bring down a decision if the parties tried again to solve their differences. Chisholm was to help Council find a suitable site to dump the sewage on (and he was prepared to buy some land for that purpose if it came to that), and Council were to reconsider their trespass charges against him and compensation for the $31,000 he had spent in legal fees in the seven days spent fighting the bulldozers.

Kenderdine described the Council's actions as "reprehensible" and added, "the Council was not facing an emergency situation because it had known about Waiheke's sewage disposal problems for at least a year." Nevertheless, the Council tried to create an emergency, by ordering the contractor to clean out every septic tank, despite the fact that they didn't need cleaning out, in the vain hope he would have a truck full of sewage with nowhere to dump it. It was an emergency that never existed.

In this final meeting Chisholm said the Council continued with its lies. "They said they couldn't roll over their permit to dump sewage on the existing site so I got the Auckland Regional Council representative and he admitted the site could be used, and the owner was prepared to lease his land to Council for $30,000 a year. So the whole thing could have been solved. But Council was not interested. After three hours I asked them what they would do about my legal expenses and trespass charges and they said they hadn't even thought about it."

That was the last straw for Chisholm. "I slammed my hands on the table, told them they were a delinquent pack of bastards and they'd fucked me over once too often. I said I'd rather take my chances with the judiciary than deal with them, and I walked out." That night Judge Kenderdine took the emergency powers off the Council.

But it was too late for Adrian Chisholm. Late January the Council lodged an application for a resource consent to dump sewage on the golf course site, and Chisholm's financial investors backed out of the deal. "By this time they realised that this development had too much baggage," says Chisholm. "The Council might have been halted by the Environment Court in its emergency powers, but objecting to their resource consent would mean we could throw a million bucks down the drain. We'd already spent over $100,000 fighting them and that was lost."

Today Adrian Chisholm is suing . Ironically, the Council abandoned its plans to use this land as a sewage dump when local iwi discovered an archaeological site had been disturbed, and alerted the Historic Places Trust. The Council's own bulldozers had unearthed cooking stones, rolled them down the hill and covered them with soil. There has been no outcry about this from the Historic Places Trust, contrary to the furore that ensues when a private individual "desecrates" an historical Maori site. Furthermore, an individual's property rights were irrelevant, according to the Auckland City Council and the Waiheke Island Community Board, but tribal "rights", aided by the collectivism of a Crown Entity, were powerful enough to stop the sewage site development.

This saga doesn't end here. In court, Chisholm's lawyers will argue that the Council and its officials were recklessly indifferent to the fact that their unlawful decision to dump sewage on his doorstep would totally destroy the financial viability of the project. What's more, claims Chisholm, "they deliberately did it over the Christmas/New Year holiday in the hope the decision would slip through without too much scrutiny."

A report from the Ministry for the Environment (whose Minister, Simon Upto n, drew up this fascist Resource Management Act) commented, "It is not surprising that Mr Chisholm finally concluded they were out to get him. And sadly for him, his prophecy became self-fulfilling...If ever there was a reason for a person to suspect he was being hindered and perhaps victimised, the chain of events being apparently unleashed on him by Auckland City would only serve to confirm such a view." However, Upton concluded there was no need for the Government to intervene in the situation.

Post Script:

Adrian Chisholm was awarded $4000 of the $30,000 legal expenses, but after waiting four months for the Council to pay up, had to give Mayor Christine Fletcher seven days' notice before obtaining a distress warrant from the District Court to force payment. He got the cheque for $4000, minus the $55 court costs, but again, he had to use threats of court action before a cheque arrived in the mail.

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