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Published: 2011-05-09 00:00:00

A court ruling has confirmed the powers and actions of Waikato Regional Council to undertake pest plant control and bill property owners if they fail to carry out such work to the required standard of the regional pest management strategy.

In a complex case brought by a landowner who had the pest plant woolly nightshade on his property near Pokeno, it was alleged the council exceeded its powers under the Biosecurity Act 1993 when it carried out woolly nightshade removal and then billed the landowner.

A council biosecurity contractor first noticed woolly nightshade on the property in 2002 and, after making various requests to get the weed destroyed, eventually sent a notice to the landowner in 2005 formally requiring that the woolly nightshade be dealt with. The contractor had also tried to help the landowner locate a suitable weed control company.

In 2007 the contractor became frustrated with the lack of progress and in January issued a further notice under the Act for the landowner to destroy all woolly nightshade on his property. Some limited control was subsequently undertaken.

However, an inspection by the contractor in July 2007 found 90 per cent of the woolly nightshade still remained and the council organised for the work to be done under its regional strategy powers. The landowner was subsequently billed a total of nearly $11,000 in charges and related costs. After receiving this, he made a number of legal claims alleging the council had acted improperly.

Judge Gibson, sitting in the Manukau District Court in August 2010, has found that the biosecurity contractor and the council had acted properly and fully within its powers in carrying out the work.

The council’s intention in carrying on with the work was merely to destroy the infestation of woolly nightshade after the plaintiff had failed to adequately do so, the judge said. “So I do not find any element of bad faith in any aspect of the [council’s] dealings over the matter.”

Council manager for biosecurity operations Peter Russell said the case was regrettable. “The landowner did make some attempts to deal with the woolly nightshade but not nearly enough.

“The judge has upheld our right to take action when landowners aren’t doing enough to meet their obligations.

“Woolly nightshade can be a particular problem in the northern Waikato District and we are happy to work with landowners to sort out infestations where they occur and provide control advice. But equally we won’t shy away from taking firm action when landowners don’t meet their obligations.”

Woolly nightshade is designated a “total control” pest under the regional pest management strategy, which means landowners are responsible for eradicating it when it is found on their property. The plant’s total control status is due to its ability to spread quickly, out-competing native vegetation and impacting upon farm and orchard production in the process.