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District Court of New Zealand |
Last Updated: 13 August 2021
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IN THE DISTRICT COURT AT HASTINGS
I TE KŌTI-Ā-ROHE KI HERETAUNGA
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CRI-2020-020-3264
via AVL [2021] NZDC 9704
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HAWKE’S BAY REGIONAL COUNCIL
Prosecutor
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v
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DAVID COWAN
Defendant
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Hearing:
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30 March 2021
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Appearances:
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NM Graham for the Prosecutor MB Lawson for the Defendant
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Judgment:
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2 August 2021
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SENTENCING DECISION OF JUDGE MJL DICKEY
[1] David Cowan has pleaded guilty to one charge that on 7 September 2020 he discharged a contaminant (smoke and its constituents) into air contrary to ss 15(2A) and 338(1)(a) and 339 of the Resource Management Act 1991 (RMA).
[2] The charge relates to two fires lit on his property at 68 Grey Street, Clive (the property) that contained prohibited items. The maximum penalty is a term of imprisonment not exceeding two years or a fine not exceeding $300,000.
HAWKE’S BAY REGIONAL COUNCIL v DAVID COWAN [2021] NZDC 9704 [2 August 2021]
[3] Ms Graham for the Council submitted that a starting point of between $18,000 to $20,000 is appropriate. Mr Lawson, counsel for Mr Cowan, submitted that Mr Cowan should be discharged without conviction.
[4] I note for the record that the District Court Judge who received Mr Cowan’s guilty plea also recorded a conviction. As s 309(3)(b) RMA requires an Environment Judge to hear matters under s 338 RMA, unless directed otherwise by the Chief District Court Judge, I vacate that conviction. I note also that Ms Graham consents to the conviction being vacated. On that basis I now proceed to consider the issue of sentencing and the application for discharge without conviction.
Background1
[5] On 5 March 2019 an officer from Hawke’s Bay Regional Council (Council) attended the property, having received a report of large piles of material stockpiled for burning at the property.
[6] The officer noted that there were three piles of material. All piles contained items that were prohibited from being burned under the Hawke’s Bay Regional Resource Management Plan (Plan). One of the piles included asbestos.
[7] The Council wrote to Mr Cowan confirming what had been seen and setting out the relevant rule in the Plan. The letter directed Mr Cowan to contact the Council to confirm he had taken steps to remove the prohibited items from the burn piles and had disposed of them appropriately.
[8] Mr Cowan subsequently contacted the Council to acknowledge the letter and advised that he would remove all prohibited items from the burn piles. He agreed that he would contact the Council again prior to burning.
[9] On 8 July 2019 Mr Cowan contacted the Council and advised that there was a small amount of prohibited material yet to be removed. He agreed that he would advise the Council when it was gone so that the piles could be inspected.
1 Summary of Facts, [1]-[8].
[10] On 28 August 2019 a Council officer went to the property to check the piles at the invitation of Mr Cowan. One of the three burn piles still contained items that were prohibited. Mr Cowan was asked to remove them. Once removed he was to arrange another inspection before burning took place.
[11] In October 2019 a Council officer went to the property at the invitation of Mr Cowan. At that stage the prohibited items had been removed, but there were two plywood sheets on one pile. Mr Cowan was told to remove the sheets, and was advised that once this was done he could proceed to burn the piles.
The offending2
[12] On 7 September 2020 the Council received a complaint to the pollution hotline of nuisance smoke coming from a fire at the property. The caller advised that the fire had been burning for a week but had stirred up that morning.
[13] An officer from the Council investigated the complaint and noted two piles of material smouldering on the property. Both piles contained prohibited material including metal, treated timber, metal piping, corrugated iron, plastic items, a mattress frame, a copper sink and metal flashings. None of those items had been present when the Council had inspected the piles the previous October.
[14] No one was present at the property and a notice was left on the gate. Mr Cowan was subsequently telephoned and officers from the Council met him at the property. Mr Cowan advised that he had engaged a contractor, Everfresh Transport Ltd (Everfresh), to oversee the burning, and that the items that could be seen on the fire must have been under the burn piles and came to the surface after the contractor used a digger to scrape up the remains of the burn piles.
[15] The Council officers could also see what they believed to be asbestos sheeting next to the burn pile but Mr Cowan would not allow them to take samples. He told them he would arrange for an asbestos removal company to deal with it.
2 Summary of Facts, [9]-[13].
The regulatory framework3
[16] Under s 15(2A) RMA no person may discharge a contaminant into the air, or into or onto land, from a place or any other source, whether moveable or not, in a manner that contravenes a regional rule unless the discharge is expressly allowed by a national environmental standard or other regulations or is expressly allowed by a resource consent or is an activity allowed by section 20A.
[17] Rule 20 of the Plan also applies and provides that burning of the listed items is prohibited:
Except as provided for in Rules 19 and 20a the discharge of contaminants into air arising from the burning in the open, and/or in a small scale fuel burner of:
Sentencing Principles
[18] The purposes and principles of sentencing under the Sentencing Act 2002 are relevant insofar as they are engaged by a particular case. The principles outlined in Thurston v Manawatu-Wanganui Regional Council are relevant to sentencing. The factors that are frequently considered in RMA sentencing cases include an assessment of the offender’s culpability for the offending, any infrastructural or other precautions taken to prevent the discharges, the vulnerability or ecological importance of the affected environment, the extent of the environmental damage, deterrence, the offender’s capacity to pay a fine, disregard for abatement notices or Council
3 Summary of Facts, [15]-[16].
requirements, remedial steps taken to mitigate the offending or prevent future offending, and cooperation with enforcement authorities.4
Environmental Effects
[19] The property falls within Airzone 2 of the Hastings Airshed. Airzone 2 is considered a “polluted” airshed under the National Environmental Standards for Air Quality.5
[20] The property has a number of residential properties in close proximity to it, and Ms Graham submitted that there was a nuisance factor associated with the smoke as evidenced by the complaint from a member of the public.
[21] In addition, Ms Graham submitted that the property is close to the township of Clive, and the wind direction on the day of the offending blew the smoke towards the township and local primary school.
[22] In determining the environmental effects of the fires the Council received advice from Dr Kozyniak, the Chief Scientist – Air and Climate to the Council, regarding outdoor burning, rubbish fires and the burning of prohibited material.6 Dr Kozyniak stated:7
Smouldering conditions associated with open burning promotes particulate formation as well as many toxic and potentially harmful chemicals and these are emitted at ground level which hinders dispersion. The chemicals can be inhaled, or deposited in the environment where they can subsequently enter the human food chain.
Fires that involve a range of materials can produce strong irritants, asphyxiants and potential carcinogens. While combustion products outside the immediate fire zone of a rubbish fire are not likely to pose an immediate danger to life, the irritant gases may give rise to symptoms of exposure which should be resolved when the source is removed. However the activity contributes to cumulative exposure to hazardous persistent organic pollutants.
Prohibited items were identified in materials being burned at Grey Street within the Hastings airshed and during which the wind direction was at times toward Clive
4 Thurston v Manawatu-Wanganui Regional Council HC Palmerston North CRI-2009-454-24, 27 August 2010, at [41] and [42].
5 Summary of Facts, [17].
6 Memorandum of Dr K Kozyniak to Mr S Smithers, dated 29 January 2021 “Burning Prohibited Items
– Grey St Clive”.
7 Memorandum of Dr K Kozyniak to Mr S Smithers, dated 29 January 2021 at page 4.
School and Clive township. The burning of these items are not only associated with nuisance dense smoke but also emissions and deposition of hazardous air pollutants known to cause cancer or serious health effects and that persist in the environment and accumulate in body tissue when ingested. These include polycyclic aromatic hydrocarbons (PAHs) and dioxins.
Compared to biomass burning, the burning of the range of materials within rubbish fires emit more hazardous air pollutants on a mass emitted per mass burned basis.
[23] The Summary of Facts records the following as environmental effects of the burning:8
The low temperature burning and smouldering conditions typical of open burning promote the formation of many toxic and potentially harmful chemicals through incomplete combustion of materials. The less than ideal burning conditions typical of open fires, and the associated incomplete combustion of materials, produces a visible plume of particulate matter. Particulate matter from open burning is of the order of 20 to 400 times those of a controlled combustion source, and where a fire has a poor supply of oxygen, or is smouldering, the particulate emissions are greater as are the production of dioxins and furans.
The combustion products from items found in the fire, for example plastics, treated timber, and metals are likely to be strong irritants, asphyxiants and potential carcinogens. The burning of prohibited items such as the items in this fire are not only associated with nuisance dense smoke but also emissions of hazardous air pollutants known to cause cancer or serious health effects and that persist in the environment and accumulate in body tissue when ingested. These include PAHs (polycyclic aromatic hydrocarbons) and dioxins.
[24] Mr Lawson did not make submissions as to the environmental effects of the offending.
[25] I accept Dr Kozyniak’s generic summary of the effects of open burning of prohibited materials. I note that the fires were burning or smouldering for seven days but that the offence related to 7 September. In any event, I find that the fires would have contributed to the adverse cumulative effects of open fires burning prohibited materials in the area.
Culpability
[26] Ms Graham submitted that Mr Cowan was aware of the rules concerning the burning of prohibited items. She submitted that although Mr Cowan had engaged a
8 Summary of Facts, [18]-[19].
contractor to oversee the burning, it was his responsibility to ensure that the fires complied with the rules.
[27] Counsel submitted that Mr Cowan did not check on the fires over the week that they were burning or he chose to ignore the fact that prohibited items were present. She was also critical of the fact that Mr Cowan did not ask the Council to check the piles immediately prior to burning, given it had been 11 months since they had approved the contents of the piles. She submitted that given past problems, getting the Council to check the piles was common sense.
[28] In his affidavit Mr Cowan stated that his intention is to subdivide his property, and as part of preparing to do so he engaged an experienced contractor to remove trees, remove the firewood and to pile up the branches that were unsuitable for firewood into fire piles. He did not supervise this work which only involved stockpiling the branches, and in his affidavit stated that there were no other structures or rubbish on the land. He stated that the trees were removed in late February/early March 2019 and the fire piles were formed at that time.9
[29] Mr Lawson submitted that while Mr Cowan was waiting for an opportunity to lawfully light the fires, and while he was away on holiday, rubbish was dumped on his property and included in the piles for burning without his permission.10 Upon Mr Cowan’s return from holiday he received a letter from the Council about the burn piles.11 Mr Cowan contacted the Council and acknowledged that he had received the letter and advised that he would remove all of the prohibited items from the burn piles.
[30] Mr Cowan and his family removed the rubbish and prohibited items at his own expense. Mr Cowan contacted the Council on 8 July 2019 and a Council officer inspected the burn piles on 28 August 2019. There were still items that the Council wanted removed and Mr Cowan undertook to do that. In October 2019 the Council officers again inspected the property and subject to the removal of two plywood sheets on one pile, Mr Cowan received permission to light the fires.12
9 Affidavit of David Cowan at [4], [6] and [7].
10 Defendant’s submissions at [7].
11 Defendant’s submissions at [8].
12 Affidavit of David Cowan at [11], [13] and [14].
[31] In accordance with the rules, the fire could have been lit after 1 September 2019, but between contractor availability and suitable conditions Mr Cowan was unable to get a suitable time to burn the piles. Hawke’s Bay went into a restricted fire season on 11 November 2019 and then a total fire ban on 10 February 2020. That, coupled with the Covid-19 lockdown in March 2020, and the prohibition on lighting fires from May to August in Airzone 2 of the Hastings Airshed, meant that the first available opportunity to burn the piles was on 1 September 2020. In his affidavit, Mr Cowan stated that he inspected the piles before they were lit and noted that nothing had been added to them.13
[32] Mr Lawson submitted that Mr Cowan engaged an experienced contractor with appropriate firefighting tankers and equipment to light and oversee the fires. The fires were lit on 1 September 2020 at 4.45am and, according to Mr Cowan, by 1pm that day had substantially burned down. In his affidavit, Mr Cowan stated that on 7 September he contacted Everfresh and asked them to restoke the fires. It was only when the contractor “lifted” the ashes to expose the large tree stumps, so that they could be further burned, that the unauthorised materials were found.14
[33] Mr Lawson submitted that the only explanation that Mr Cowan can provide concerning the prohibited items is that they were either inadvertently scraped up by the contractor when removing the trees in the first place or that they were added to the fire between 1 September 2020 when the fires were lit and 7 September 2020 when they were rekindled. Mr Cowan’s position is that he did not add the prohibited items to the fire, and that the prohibited items were not evident when the piles were inspected by himself and the Council officers in August 2019, and they were not evident immediately prior to the fire piles being lit on 1 September 2020.15
[34] Mr Lawson submitted that when it became apparent that there were unauthorised objects within the fire, Mr Cowan acted responsibly and engaged appropriate consultants to provide advice and to undertake soil testing. Samples from
13 Affidavit of David Cowan at [16] – [18].
14 Defendant’s submissions at [13] and [16].
15 Defendant’s submissions at [14].
the ash tested negative for asbestos but positive for iron residues.16 At his expense all unauthorised items were removed from the ashes and disposed of appropriately.17
[35] It is clear that Mr Cowan took steps in the months leading up to the fires to ensure he complied with the rules related to burning, including employing Everfresh to oversee the fires. I allow for the possibility that he was the victim of illegal dumping, but I had no evidence as to what responsibilities Everfresh had in overseeing the fires, and whether they were visiting the site every day. It seems they may have been there on 1 September and then returned on 7 September.18
[36] However, Mr Cowan did not advise the Council before he finally lit the fires and he did not check the piles throughout the week that they were burning. I understand that Mr Cowan lives at the property, so would have been able to check on the fires. I determine that, while Everfresh oversaw the burning, Mr Cowan was ultimately responsible for what was in the fires. Finally, I note that the fire piles contained a number of prohibited items. In all the circumstances I find that Mr Cowan’s culpability for the offending is low.
Starting Point
[37] Given the length of time these fires were burning, and the earlier warnings regarding prohibited items in the fire piles, Ms Graham submitted that the starting point should be in the range of $18,000 to $20,000.
[38] Ms Graham referred me to Hawke’s Bay Regional Council v Hastings Demolition Limited.19 In that case the Court adopted a starting point of $17,000 for a fire that was lit by employees of a demolition company in order to burn native timber stripped during the course of clearing a site. The defendant claimed that casual employees had put toxic material on the fire whilst the foreman was offsite.
16 Affidavit of David Cowan at [28].
17 Defendant’s submissions at [20].
18 Affidavit of David Cowan at [19]-[20].
19 Hawke’s Bay Regional Council v Hastings Demolition Limited [2020] NZDC 20030.
[39] Counsel also referred me to Hawke’s Bay Regional Council v Santo Drainage & Contracting Limited,20 a case where the starting point was set at $18,000 for a fire that was lit by the employee of a land contractor as part of a land clearing exercise. The fire not only included prohibited items but was also in breach of the Airshed rules.
[40] Finally, Ms Graham referred to Bay of Plenty Regional Council v Davies21 where a starting point of $20,000 was adopted for an individual who lit a fire to dispose of demolition materials. The defendant in that case lit an initial fire, and then deliberately lit a second fire that also contained prohibited items after Council officers had attended the property and provided advice regarding burning plastic and other prohibited items.
[41] Mr Lawson did not make submissions on a starting point, suggesting that if the application for discharge without conviction was not accepted then a conviction would be enough.
[42] I consider that the circumstances of this case are quite unusual, given the steps taken in the months preceding the fire to clear from the pile prohibited items and engage a contractor to supervise the lighting of the fires. I do not regard this case as comparable to the cases I was cited, and therefore determine that a starting point of
$12,000 is appropriate.
Application for discharge without conviction
[43] Pursuant to s 106 of the Sentencing Act 2002, the Court has a discretion to discharge a defendant without conviction if it is satisfied that the direct and indirect consequences of the conviction would be out of proportion with the gravity of the offence.
[44] The established three stage analysis for discharge without conviction is: first, the gravity of the offending (taking into account all aggravating and mitigating factors of the offending and the offender); secondly, what are the direct and indirect
20 Hawke’s Bay Regional Council v Santo Drainage & Contracting Limited [2020] NZDC 4414.
21 Bay of Plenty Regional Council v Davies [2020] NZDC 15519.
consequences of a conviction on the defendant; and, thirdly, an assessment of whether those consequences are out of all proportion to the gravity of the offending.22 Overall, the Court retains a discretion to grant or refuse the application after considering those matters.
[45] Mr Lawson submitted that Mr Cowan should be discharged without conviction because:
- (a) Mr Cowan is in the process of subdividing this land. For someone aspiring to work within the field of subdivision and resource management, it would be a highly inauspicious and unwarranted start to such endeavours to start with a conviction for contravening the RMA. Mr Cowan does not want the land to be considered tainted by prospective purchasers and/or for his reputation to be tainted in undertaking this subdivision and potentially further subdivision in the future.23
- (b) Mr Cowan’s concern is that a conviction for this offence against the RMA will send a message to prospective purchasers of sections that he was willing to flout the law and cut corners.24
- (c) Having a conviction for this offence, noting the serious possible penalties that may be imposed, together with the reputational damage that a conviction would bring is out of all proportion to the gravity of the offence.
- (d) The remedial steps taken by Mr Cowan and the fact that he has spent considerable effort and sums of money in undertaking that remedial action should be taken into account.
- (e) This is a minor offence, and other than minor traffic offences Mr Cowan has not previously appeared before the Court; nor has he previously come to the attention of the Council.
22 Z v R [2012] NZCA 599, [2013] NZAR 142.
23 Affidavit of David Cowan, sworn 25 March 2021 at [37].
24 Affidavit of David Cowan, sworn 25 March 2021 at [39].
[46] The Council opposed the application for discharge without conviction. Ms Graham submitted any consequences of the conviction are speculative at best, the evidence did not go far enough to establish the consequences as suggested by the defendant were real. Ms Graham reiterated her submissions regarding the seriousness of the offence. She highlighted that a number of prohibited items were found on the fires and Mr Cowan lives on the property so it would have been responsible to check the burn piles and the fires regularly. Ms Graham noted that there was no evidence from Everfresh setting out what work they did or what the digger operator observed. Ms Graham accepted that Mr Cowan had done everything he could to rectify the situation after the fact.
Gravity of Offending
[47] While I have found Mr Cowan’s culpability for the offending to be low, I have determined that the fires would have contributed to the adverse cumulative effects of open fires in the area.
Direct and indirect consequences of the offending
[48] Mr Cowan’s concern is that a conviction will tarnish his reputation and affect his ability to sell lots in his subdivision.
Proportionality
[49] Mr Lawson submitted there are no aggravating factors relating to this offence other than the fact that prohibited items were ultimately found in the ashes of the fires. He submitted that this is a minor offence, and that Mr Cowan made a valiant effort to try and avoid the outcome that occurred. As such, a conviction would be disproportionate.
[50] I do not consider that Mr Cowan’s proposal to subdivide his land and his fear that a sale may be affected by his conviction to be a matter that weighs in the balance against a conviction. Further, the potential for Mr Cowan’s reputation to be affected does not outweigh the gravity of the offending, such is a usual consequence of
conviction and part of the purpose of sentencing, which is that the sentence should act as a deterrent. For these reasons I decline to discharge Mr Cowan without conviction.
Aggravating and Mitigating Factors
[51] Ms Graham advised that Mr Cowan has not previously come to the attention of the Council in relation to any similar matter and she accepts that a discount for previous good character is appropriate. She submitted that the Court routinely recognises this factor with a discount of around 5 per cent.
[52] A discount to recognise the plea of guilty is also appropriate and Ms Graham stated that she has no issue with the usual 25 per cent discount being applied.
[53] In accordance with the decision in Moses v R25 Ms Graham submitted that the above discounts should be combined, resulting in a total discount of around 30 per cent.
[54] Mr Lawson submitted there are no aggravating factors relating to this offence other than the fact that prohibited items were ultimately found in the ashes of the fires. Once the prohibited items were found Mr Cowan took the appropriate steps to remedy the situation by engaging appropriately qualified consultants, undertaking the necessary clean-up and removing the ash piles to the landfill.
[55] He submitted that the mitigating matters present take what was already a low level of offending to offending that is de minimis.
[56] In order to acknowledge Mr Cowan’s good character and the steps taken to remediate the situation I allow a discount of 5 per cent.
[57] As Mr Cowan pleaded guilty at an early stage, I allow a further discount of 25 per cent.
25 Moses v R [2020) NZCA 296.
Outcome
[58] I have adopted the two-step sentencing methodology outlined by the Court in
Moses v R.26
[59] Accordingly, Mr Cowan is convicted and ordered to pay a fine of $8,400. In terms of s 342(2) of the RMA, I order that 90 per cent of the fine be paid to Hawke’s Bay Regional Council.
Judge MJL Dickey
District Court Judge
Date of authentication: 02/08/2021
In an electronic form, authenticated pursuant to Rule 2.2(2)(b) Criminal Procedure Rules 2012.
26 Moses v R [2020] NZCA 296 at [45] to [47].
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