Tasman District Council v C J Industries [2023] NZDC 12977 (26 June 2023)

Last Updated: 14 July 2023

IN THE DISTRICT COURT AT NELSON

I TE KŌTI-Ā-ROHE KI WHAKATŪ

CRI-2022-042-775 [2023] NZDC 12977

TASMAN DISTRICT COUNCIL

Prosecutor v

C J INDUSTRIES

First Defendant

RAPID RIDGE TRUST LIMITED

Second Defendant

DESMOND MICHAEL CORRIE-JOHNSTON

Third Defendant

Hearing: 26 June 2023 Appearances: A Besier for the Prosecutor

L Acland for the Defendants

Judgment: 26 June 2023

NOTES OF JUDGE P A STEVEN ON SENTENCING

Introduction

[1] The following is a written record of my oral sentencing in this matter. It contains corrections to minor errors or misquotations which do not affect the rationale for, or outcome of, the decision.

[2] C J Industries Limited and Rapid Ridge Trust Limited appear for sentencing on charges laid under the Resource Management Act 1991 relating to burning in

TASMAN DISTRICT COUNCIL v C J INDUSTRIES & ORS

breach of the rules of the Tasman Resource Management Plan and contravention of an abatement notice.

[3] The discharge occurred in the context of the burning of a pile of material on the property owned by Rapid Ridge Trust Limited at 105 Douglas Road, Motueka on 3 June 2021.

[4] The factual background is set out in an agreed summary of facts.

[5] The burning occurred at a property which is owned by Rapid Ridge Trust Limited (‘RRT’). The registered office of that company is listed as C J Industries Ltd (‘CJI’), 34 How Road, Motueka.

[6] Mr Desmond Corrie-Johnston is the sole director and main shareholder of RRT.

[7] CJI, the first defendant, operates a commercial civil contracting business undertaking asphalt and concrete supply, earthworks and subdivision work including demolition and disposal of buildings and associated wastes. CJI has the same registered address as RRT. Mr Corrie-Johnston is the sole director and main shareholder of CJI.

[8] CJI is the company that was responsible for operations on site when the offending occurred. This included hauling demolition waste to the site and igniting of the outdoor fire resulting in the discharge of smoke.

[9] Mr Corrie-Johnston managed the activities at the site by supervising the CJI staff who lit the fire. He also gave direction and permission for demolition waste to be brought to the site and ultimately disposed of when burnt.

[10] Accordingly, through Mr Corrie-Johnston’s involvement, the two defendants are responsible for the offending that occurred. Guilty pleas were entered by each defendant (through counsel) at the commencement of the hearing on sentencing, having previously entered not guilty pleas. The change of plea followed discussions with the prosecuting counsel that led to withdrawal of some of the original charges.

[11] Leave was granted at the commencement of the hearing for the Council to withdraw charges ending CRN 114 and 115 against Mr Corrie-Johnston in his personal capacity following the entry of guilty pleas to the remaining charges.

[12] The property comprises approximately 6.11ha. It is located close to the Motueka River, which is this subject of a water conservation order on its upper reaches. It is on the outskirts of the township of Motueka near the western ranges and Brooklyn Valley and Motueka Valley. The site is used for gravel extraction, storage and disposal of clean-fill and green waste.

[13] The zoning is Rural 1 in the Tasman Resource Management Plan (‘TRMP’) and has recently been listed in the Tasman Hazardous Activities and Industries List register due to the burning of prohibited items and storage of contaminated ash on site.

[14] There have been unlawful burnings at the property in the past. In response to a burning incident on 13 October 2020, an abatement notice was served on RRT, together with an infringement notice directing the cessation of the discharge of contaminants to air in contravention of rules of the TRMP.

[15] Mr Corrie -Johnston had been advised by Council staff that this abatement notice was issued to RRT in his capacity as director of that company and manager of CJI. The abatement notice alleged contravention of rules of the TRMP. Compliance with that abatement notice was required by 20 October 2020. The abatement notice was not appealed. The infringement notice was paid in full.

[16] On 13 May 2021, the Council received a complaint from a member of the public regarding demolition waste being brought to the property. This was investigated by the Council following day.

[17] A large pile of waste was observed at the property which looked like material from a demolished house. The pile appeared to contain plastics, carpet, rubber underlay, and particle/fibreboard, treated timber posts and boards. Mr Corrie- Johnston was told that the waste pile contained prohibited items and could not be burnt until sorted and the prohibited materials removed. Mr Corrie-Johnston stated that he

was waiting for machinery to be available to sort through the pile and remove any prohibited articles before setting fire to what was left.

[18] The compliance officer reminded Mr Corrie-Johnston of the requirements of the abatement notice and the TRMP rules, concerned that the waste would be burnt. That was reiterated in an email sent later that day and again via email on 17 May 2021.

[19] On 2 June 2021, the Council received a complaint regarding a fire being lit on the property. The Council investigated the following morning and observed a large fire burning. Mr Corrie-Johnston was present at the property during the site visit and said that the fire had been lit that day. The pile contained approximately six truckloads of green waste comprising a hedge removed from an orchard. The waste was described as “sopping wet and dense”.1

[20] Although the demolition waste pile had been sorted through and prohibited items had been removed and placed in a separate pile, some items of demolition material were visible in the burning pile. Mr Corrie-Johnston had pulled some prohibited items out of the remains of the burning waste pile after he was told about the smoke throughout Riwaka and the fire was shut down.

[21] Burnt remains of metal items including a microwave were visible and an area of green waste continued to burn. Large quantities of smoke continued to be discharged from the burning green waste and a pile of unburnt prohibited items was visible to the side of the burning waste.

[22] The officer observed large quantities of smoke and took photographs from the property and further afield. She was contacted by another compliance officer in the area alerting her to the fact that there was a large amount of smoke in Riwaka, northeast of the property across the Motueka River. An aerial overview and webcam imagery included in the statement of facts (‘SOF’) also captures smoke from the fire on the date of the site visit and the following day.

1. Statement of fact at [48].

[23] On the morning of 3 June 2021, the officer observed thick smoke and a strong smoke odour in Riwaka township and Umukuri Road close to Brooklyn.

[24] An air quality scientist has provided a report on air quality between 1 June and 5 June 2021 which notes that the source of the smoke, being of a reasonable size, resulted in elevated PM2.5 concentrations.

[25] The relevant TRMP rule (Rule 36.3.2.3) provides that outdoor burning is a permitted activity provided conditions are met. The burning failed to comply with a number of those conditions, including (in summary with reference to the conditions of the rule):

• (a) (c) and (d) – the discharge does not result in any noxious, offensive or objectionable odour or smoke beyond the boundary of the subject property, or reduce traffic visibility;
• (b) (e) – the source of the material is not from more than three adjoining properties when burning is undertaken at one of those properties;
• (c) (f) – there is no burning of demolition material, domestic or industrial waste; and
• (d) (k) – the vegetation is dry, and there is no burning of tree stumps.
  

Defendants’ explanation

[26] Mr Corrie-Johnston’s explanation for the burning was unclear. He stated that he had instructed staff not to burn prohibited items in terms of Rule 36.3.7.1 and seems to explain the fire through a lack of staff understanding those rules. He provided no explanation as to why there was no attention paid to the permitted activity standards of Rule 36.3.2.3.

[27] The Council considers that the offending is moderate to moderately serious for the reason that the offending has resulted in the release of pollutants into an environment where crops are harvested and people live. The offending was deliberate and had happened after warnings and an abatement notice.

[28] This is refuted by the defendants’ counsel who states that hazardous material had been separated from the pile and the fire did not contain substances which can produce high levels of toxicity. However, I must proceed to sentence on the basis of the facts agreed in the SOF which reveal that the sorting had not completely removed all demolition items from the burn pile. Moreover, the burning of sodden wet green waste was undeniably in breach of condition (k) of the rule in the TRMP.

[29] Sentencing factors are identified in Council submissions and I address these in turn.

The nature of the environment affected and extent of the damage

[30] The affected environment was a rural/residential area with a population of around 100,761. It is also an area dominated by intensive horticulture and agricultural activity.

[31] The fire burnt overnight, during which time the smoke became trapped under a cold air inversion and was pulled by katabatic air flow towards the coast. Heavy smoke was present in Riwaka and Brooklyn Valley areas in the morning of 3 June 2021. This coincided with the time the children were taken to schools and kindergartens in the area. Thick, heavy smoke was observed to remain in the atmosphere until 10. 30 am that day.

[32] These areas are identified as “fire sensitive areas” in the TRMP and are subject to a ban of outdoor burning from 1 June to 1 September each year, due to conditions which prevent the smoke from outdoor burns to rise and disburse. The burning resulted in smoke sitting in these areas until around 10.30 am on 3 June 2021.

[33] The Council describes the extent of environmental harm as having:

• (a) short-term and cumulative impact on air quality;
• (b) short-term impact on amenity values for residents in the area;
• (c) potential impact on people’s health and wellbeing through inhaling PM2.5 contained in the smoke and potentially to crops comprising fruit

and vegetables.

[34] The burning of demolition material and green waste releases smoke and ash due to the incomplete combustion at the relatively low temperature of the outdoor burning, and produces omissions containing particular matter which can be inhaled or deposited in the environment. For instance, on nearby crops burning is not only a nuisance but is also potentially harmful due to the emission and deposition of particulates.

[35] Once the source of exposure is removed, the symptoms of exposure on any persons nearby are likely to be resolved, however, the contaminants released are cumulatively degrading air quality which affects the health and wellbeing of people and environmental quality.

[36] The Council commissioned a report from Mote Ltd which placed ‘Dustmore’ sensors at several locations in Riwaka and Brooklyn, and meteorological data was also obtained from four sites. The recorded data shows that the fire was responsible for the highest 24-hour average PM2.5 concentration during the period 15 May-13 September 2021, with 14.8 µg grams per cubic metre when the average is 5.5. The report by Mote Ltd was attached to the SOF.

[37] For the defendants, Mr Acland notes, and I accept, that the PM2.5 levels did not exceed the World Health Organisation’s guideline for safe emissions of PM2.5 particulate. However, the upper limit for safe emissions under that guideline were almost reached. The emissions were well below the Ministry for the Environment’s proposed standards for PM2.5 emissions.

[38] Although a specific impact on air quality was not able to be identified, the court has consistently acknowledged that the release of these types of contaminants result in adverse cumulative effects, and on that basis I find there is a moderately serious short-term impact on a moderately sensitive environment in this case.

Deliberateness of the offending, attitude of the defendant and extent of attempts to comply

[39] I find that the defendants’ actions were highly careless and bordering on being deliberate, as the offending reflects a deliberate choice to burn material that the defendants had been advised would be unlawful to burn. Following the issue of the abatement notice, they had been directed to ensure compliance with the rules of the TRMP.

[40] Although CJI staff may have been involved in the actual burning, the defendants were responsible to ensure that burning activity complied with the rules of the TRMP and the abatement notice.

[41] For the defendants, Mr Acland attributes greater culpability to CJI and suggests that RRT ought to be discharged in relation to the offending arising from the burn because its real wrongdoing was not complying with the abatement notice. CJI had responsibility for the day-to-day operations on site.

[42] However, I find that both defendants, through Mr Corrie-Johnston’s involvement and his position with each company, would or ought to have known that the material on the burn pile contained sodden green waste (together with items of demolition waste) that would have generated significant amounts of smoke, and ought not to have been ignited. The defendants had been put on notice of the restrictions on outdoor burning on numerous occasions before the burning.

[43] This supports a finding that the offending by both defendants is moderately serious as the prosecution contends.

Starting point

[44] As to the starting point, the prosecution notes that the totality principle and s85 of the Sentencing Act 2002 (‘SA’) applies where there is sentencing on multiple offending. In this case there have been three charges laid against the defendants, although these arise from the same activity. These should be treated as similar in kind.

Accordingly, that would justify a single fine.

[45] However, a breach of an abatement notice is a significant offence in and of itself. The process of issuing an abatement notice has the purpose of avoiding repeat offending and accordingly, the breach of an abatement notice should attract a penalty as a separate offence.

[46] Accordingly, Ms Besier submits that there should be one fine imposed against RRT for the abatement notice offending, whereas for the discharge offences there should be a single starting point with the end fine divided between both defendants for their similar levels of culpability.

Suggested starting points

[47] Considering all factors, Ms Besier contends that a starting point of $22,000 for the burning is justified in this case, as this is in the vicinity of the starting point of

$23,000 in Downer. Counsel submits that any material departure from that would be unwarranted given that in Downer only one-third of the pile was actually burnt.

[48] A starting point for the abatement notice offending of $22,000 is also suggested given that abatement notice charges commonly attract fines in the order of $25,000 or more.

[49] Ms Besier referred to a number of cases for similar offending in their legal submissions, which I shall not mention here. Regrettably, the number of decisions cited in counsel submissions reflects the frequency with which unlawful outdoor burning occurs.

[50] Many of these were discussed in the decision of Northland Regional Council v Semenoff, although the decision in Otago Regional Council v Waikouaiti Auto Engineering Ltd2 (‘WAEL’) also dealt with outdoor burning, with material burnt subject to a burning prohibition under the Otago Regional Air Plan.

2. Otago Regional Council v Waikouaiti Auto Engineering Ltd [2022] NZDC 18608.

[51] These cases are summarised in Appendix 1 to this sentencing decision.

[52] Relevant factors for comparative purposes referred to by Ms Besier are that the size and duration of the fire in this instance was more significant than in any of the cases, particularly Seminoff, Downer, Santo and Hastings Demolition, including for the reason that there were significant quantities of smoke burning for a relatively long period of time on the morning of 3 June 2021 after the fire had been burning through the night.

[53] Unlike in those cases, there is no evidence that the fire contained the prohibited items listed in any of those cases, which when burnt released toxic and potentially harmful chemicals. However, materials that were burnt on this occasion produced elevated concentrations of PM2.5 which could negatively impact on human health. Ms Besier emphasised that particulates can be inhaled and digested with potential to result in harm.

[54] The burning on this occasion lasted for a reasonable period of time. It occurred in a sensitive receiving environment some 3.8km from Riwaka and in this way it is similar to Downer and Santo. Unlike in those cases, the defendants’ level of knowledge was high given the poor compliance history resulting in warnings, an abatement notice and an infringement notice.

[55] I have also considered WAEL for comparative purposes as well. Although it is not possible to comment on whether the items burnt in the fire reflected those that were burnt in WAEL in terms of their toxicity, the culpability of the defendants in this case is higher than was found in WAEL in my view.

[56] Mr Acland contended that Dunlop was more comparable and submitted that the court could adopt a starting point of $8,000 given that the fires had far less potential for harm than in Dunlop. Counsel describes the culpability as involving “at best casual compliance but not deliberately thumbing his nose at Tasman District Council”.

[57] Mr Acland relied upon two distinguishing features in this case, being that no harm was occasioned by the fire and that attempts were made to have prohibited items

removed from the burn pile. On that basis, Mr Acland suggested a starting point of

$8,000 for CJI and a proportionate fine of $8,000 in relation to the abatement notice offending for RRT on the basis of the approach taken in the Dunlop case.

[58] I would describe culpability as a being higher than that. I attribute the offending to a high level of carelessness due to a failure to establish that CJI staff fully understood, and in fact complied with the relevant rules.

[59] I find that there are similar levels of culpability as between the two defendants, notwithstanding that CJI was responsible for the day-to-day operations on site. This is the reason that RRT had been served with the abatement notice, at which point it had a heightened responsibility to ensure on an ongoing basis that no burning occurred in breach of the rules. Mr Acland had sought conviction and a discharge for RRT in relation to the discharge offending although I am not willing to accede to that.

[60] Mr Corrie-Johnston’s presence on site at the time of the burn was inevitably in his capacity as sole director of each of the defendant companies, and on that basis equal levels of culpability have to be shared between each of the defendants in this case.

[61] There is an acceptance that general deterrence is important in this case. Ms Besier considers that specific deterrence is also important on the facts of the offending, although Mr Acland disagrees.

Court’s starting point

[62] I agree that the s15(2A) charges (of which there are two) should be treated on the basis that they are similar in kind, meaning that a concurrent sentence would be appropriate, resulting in a single fine for these offences. I have given consideration to the position of the parties and have decided on a starting point of $19,500.

[63] The same starting point is adopted in the case of the abatement notice offending.

Adjustments

[64] Adjustments resulting in a an uplift are not sought by the prosecution, although the Council notes that an aggravating feature is that the defendants, through the discussions with Mr Corrie-Johnston and correspondence with the companies, had been advised on previous occasions that this type of burning was unlawful, yet the burning went ahead regardless. However, that is reflected in the findings that I have made about culpability and the circumstances of the offending, and does not warrant an uplift from the starting point.

[65] The offending companies have no previous convictions for offending under the RMA.

[66] Ms Besier spoke to the compliance history of CJI and RRT based upon the number of enforcement actions taken by the Council since 2009. However, Mr Acland had not been given sufficient notice of this history to enable comment on the relevance of the history in this case. I have decided to set that history to one side.

[67] However, given the more immediate history of enforcement action earlier described, I agree that no adjustment to the starting point for good character ought to be made.

Entry of guilty plea

[68] The Council submits that a deduction of 10% is appropriate given the stage at which the guilty plea was entered. Counsel notes that the charges were laid on 6 July 2020 and the not guilty plea was entered on 26 October 2022 following three adjournments of the scheduled first call. The Council had taken steps in preparation for the hearing by preparing will say statements.

[69] Mr Acland submits that the full entitlement should be given because the guilty pleas were entered once the plea arrangement was finalised and charges against Mr Corrie-Johnston were withdrawn.

[70] I find that a discount of 10% is appropriate in this case.

Remorse

[71] Mr Acland advised that the defendants and Mr Corrie-Johnston have ceased doing any burning and will not ever light another fire – not even outdoor burning of vegetation permitted by the plan – on the subject site. The defendants are remorseful and have taken full responsibility for the offending that occurred. It was on that basis that an oral request by Ms Besier for an enforcement order under the RMA as part of the court’s sentencing was made at the commencement of the hearing, although following an exchange with the court that application was withdrawn.

[72] I accept that Mr Corrie-Johnston’s expression of remorse, through his counsel, is genuine and it is accepted by the court. I further acknowledge that his response to Council enquiries was immediate, contrite and genuine, and he immediately accepted responsibility for his actions and was co-operative by making himself available to the Council for an interview. On that basis I find that a further discount of 5% is justified in this case.

[73] In summary the end result is that the defendants are convicted of the charges and sentenced as follows:

• (a) $16,500 for the CRN charges ending 109 (CJI) and 110 (RRT) divided between the defendants equally; and
• (b) $16,500 for the breach of the abatement notice charge against RRT, being CRN charge ending 111 divided between the defendants equally.
  

[74] The Council is to be paid 90% under s342 RMA as sought, together with an award of scale costs of $282.

P A Steven

District Court Judge and Environment Judge

APPENDIX 1

Comparative analysis of starting point – similar offending

[1] Counsel referred to a number of comparable cases, notably Northland Regional Council v Semenoff (‘Semenoff’),3 Hawke’s Bay Regional Council v Downer New Zealand Ltd (‘Downer’);4 Hawke’s Bay Regional Council v Santo Drainage & Contracting Ltd (‘Santo’)5 and Hawke’s Bay Regional Council v Hastings Demolition Ltd (‘Hastings Demolition’);6 Tasman District Council v Dunlop (‘Dunlop’)7 and Otago Regional Council v Bendall8 (‘Bendall’).

[2] The more decisions discussed in Counsel’s submissions are Semenoff, Downer, Santo and Hastings Demolition as all involved outdoor burning where fires had been deliberately lit.

[3] The following is an analysis of the circumstances leading to the courts starting point in each case. Otago Regional Council v Waikouaiti Auto Engineering Ltd9 (‘WAEL’) is included in this analysis as it also dealt with outdoor burning with material burnt subject to a burning prohibition under the Otago Regional Air Plan.

Semenoff

[4] In Semenoff, a starting point of $16,000 was adopted although that was lower than had been sought by the prosecuting counsel in that case. The waste had been dumped on a vacant site owned by the defendant by members of the public and Mr Semenoff, who was charged in his personal capacity, had experienced ill-health in the weeks leading up to the fire. Mr Semenoff had reduced his role in managing his businesses whereas prior to his illness he had taken a very hands-on approach to management of all of his sites. He was not on-site when the fire was lit and had no

3 [2022] NZDC 17965.

4 [2021] NZDC 4746.

5 [2020] NZDC 4414.

6 [2020] NZDC 20030.

7 [2022] NZDC 8178.

8 DC Dunedin, CRI-2014-002-000012, 26 May 2014.

9 Otago Regional Council v Waikouaiti Auto Engineering Ltd [2022] NZDC 18608.

knowledge that the fire was to take place. But for his illness he would have been present on-site and would not have allowed the fire to have been lit The fire was a one-off incident not involving the disposal of disposal of waste associated with the defendant’s business. It was also a small fire that was extinguished as soon as it was noticed. However, there had been three prior incidents of unlawful burning on business premises operated by Mr Semenoff in previous years where Mr Semenoff had been warned of the need to take steps to ensure compliance with the outdoor burning rules. He had failed to take any preventative steps to prevent the work burning of waste and he had not informed his employees of the outdoor burning rules.

Downer

[5] In Downer, a starting point of $23,000 was adopted by the court. The fire was lit at a yard occupied by Downer and was within the Hastings airshed. The burning of outdoor fires of any sort within the winter period was prohibited by a rule in the Hawke’s Bay Regional Resource Management Plan. The fire was for the purpose of burning waste material from the defendant’s business activities, although it had only been burning for a short while before being noticed by enforcement officers for the Regional Council, who then attended the site. The fire was fully extinguished shortly thereafter, leaving one-half to two-thirds of the material unburnt. However the fire contained many prohibited items that would have contributed to the cumulative exposure to hazardous persistent organic illusions that has an adverse effect on equality. The employee responsible for lighting the fire admitted that this practice was common for the site. He was unaware of the Regional Council’s rules on outdoor burning. The court found that the company was highly careless with regard to the lighting of the fire and the material that was placed on it and that the company should have made itself aware of the rules.

Santo

[6] In Santo, a starting point of $18,000 was adopted by the court. The company was in the business of providing drainage and land contracting services, and a fire had been deliberately lit by a company employee with the company’s knowledge and direction, as part of a clean-up of its site. Prohibited items were identified in materials

being burnt at the site, the burning of which is not only associated with nuisance dense smoke but the emissions of hazardous air pollutants known to cause serious health effects.

[7] Mr Santo was unaware that the winter airshed ban on outdoor burning had come into effect at the time of the fire, although he had rung the Council to make an enquiry about the fire ban rules two weeks prior to the offending before lighting a different fire. His conduct was found to be highly careless resulting from an unawareness of the relevant rules.

Hastings Demolition

[8] In Hastings Demolition, a starting point of $17,000 was adopted by the court. The company was involved in the demolition of structures and the material burnt was demolition waste. The burning involved prohibited items but on that occasion, there was no breach of the winter airshed ban as in Santo. The company had a policy to the effect that any fires are only to burn clean timber rubbish. A daily ‘toolbox meeting’ occurred with staff present onsite. On the day of the fire, the proposal to light a small fire to burn off timber was discussed and recorded at the record of the toolbox meeting that day.

[9] Staff were instructed not to load toxic material onto the fire. That instruction was ignored after the foreman, who had been supervising the site, left to attend a meeting offsite. Although there were no established adverse effects of the burning, there was the potential for there to be such effects. The court found that supervision of the fire was careless, as on return to the site the foreman had not taken sufficient care to monitor the fire and note its contents. In that decision the court noted that from the cases cited to her the starting point for that type of offending was in the range of between $16,500 and $20,500.

WAEL

[10] In WAEL, items burnt included a large pile of rubbish and demolition waste that included painted timber, paint tins, a large battery, cables, insulating material,

roofing iron, plastic chemical containers, hydraulic hoses and metal and rubber components. Burning of such materials released numerous toxic chemicals, some of which were dangerous or carcinogenic in even small amounts. Although there was no evidence that any human had inhaled that activity, the concern for the court was that the chemicals could persist in the environment for long periods of time and enter into the food chain to humans and animals. Having considered sentencing levels and other comparable cases, a starting point of $20,000 was adopted. The court described the defendants’ culpability as involving carelessness.

[11] In Dunlop the starting point was set at $8000. Although charges that were brought against a company and its director (Dunlop), by the time of sentencing the company had been removed from the Companies Register. On that basis and at the initiative of the Court:, mirror charges brought against the company were dismissed pursuant to s147 of the Criminal Procedure Act 2011.

[12] The defendant had burnt prohibited items mixed in with permitted to material where the fire was confined in size, of uncertain duration although in breach of rules of the TRMP due to out the fact that prohibited items had been burnt. The burn pile was mostly vegetation and some prohibited noxious material has been separated out you and was not burnt however there were some items that were prohibited from being burnt out which had not been burnt are removed and which were observed in the burn pile

[13] In addition, a 10 L container of recycled oil have been close to the burn pile and melted in the heat, resulting in the discharge of recycled oil. The fire followed a poor history of compliance although the court held that the effects of the burning out were at “the lowest end of the scale and the various cases cited to me”.

[14] The court considered the need for proportionality between the penalty for the discharge offence are where the court adopted a starting point of 8000 in the penalty on the abatement notice offence are where the same starting point was adopted in recognition of the limited extent of proven effects are but on the basis that deterrence was a matter of’ some weight given the history of problematic are burning at the property in the past.