Waikato Regional Council v Hillside Farms Limited DC Hamilton CRN08069500119 [2010] NZDC 118 (12 February 2010)

Last Updated: 22 September 2016

IN THE DISTRICT COURT AT DUNEDIN

CRI-2010-005-000010

OTAGO REGIONAL COUNCIL
Informant
COUNTRY PASTURES FARM LIMITED
Defendant

Hearing: 3 February 2010

Appearances: A Logan for the Informant B Irving for the Defendant

Judgment: 3 February 2010

NOTES OF JUDGE B P DWYER ON SENTENCING

[11 Country Pastures Farm Limited has pleaded guilty to one charge of breaching
s 13(1)(b) of the Resource Management Act in that it permitted the bed of an unnamed tributary of the Pomahaka River to be disturbed when that disturbance was not expressly allowed by a Rule in a Regional Plan, Proposed Regional Plan or resource consent. It is hereby convicted accordingly. Counsel are in agreement that the appropriate penalty is conviction and a fine.

[2] The information contends that the offending took place at Clydevale near
Balclutha between 25 May 2009 and 22 June 2009. The offending was discovered by a Council enforcement officer on 22 June 2009. The defendant company farms a

property at Burning Plains Road, Clydevale. A small stream crosses a block of the defendant's land. The stream is a tributary of the Pomahaka River and clearly a minor tributary.

[3] The defendant had planted swedes on its land as a crop for feeding dairy
cows. The swedes were in paddocks on both sides of the stream and were being break-fed to the cows. During the course of the break-feeding operation, the drain had initially been fenced off but at some stage (I am advised towards the end of the break-feeding process) the fence was removed so that cows could cross the creek. They did this at three places causing pugging and erosion of banks, destruction of the stream bed and turbidity in the water of the stream.
[3] The summary of facts provided by the Council, which is accepted by the
defendant, states that habitat for invertebrates, fish and plant life was lost and that recovery of the stream bed was expected to be slow.
[3] Both Mr Logan for the Council and Ms Irving for the defendant have
identified the following relevant factors for my consideration in this instance arising from the Machinery Movers case and the Sentencing Act 2002. I will deal with the Machinery Movers factors first.

The nature of the environment affected and extent of damage to that environment.

[3] The environment affected was a small stream which is a tributary of the
Pomahaka River. The Pomahaka River is listed in the Regional Water Plan as having regionally significant ecosystem values. Its catchment is important for spawning, rearing and feeding brown trout and it is a regional destination for hunting and fishing. The natural bed of the stream was destroyed and the banks pugged and eroded. The stream was discoloured with sediment when it was viewed by the Council enforcement officer in June 2009. Photographs provided by the Council confirm that.

[7] Ms Irving for the defendant acknowledges the significance of the Pomahaka
River but says that any damage was limited to the small stream. She has provided a series of recent photographs which establish that the stream has in fact substantially recovered from the damage which it suffered in this case and the Council accepts that. It appears that the damage which was done to the stream has been remedied and there was no direct damage to the Pomahaka River itself.
[7] However, the point which the Court makes again and again is that damage to
sensitive river catchments from myriad, minor and one-off pollution incidents will ultimately have a cumulative effect on principal water bodies. This case is the third incident which the Court has dealt with within the last few months dealing with one-off type discharges or damage to water bodies in the Pomahaka catchment. Although any one incident may be regarded as minor, the cumulative effect is potentially substantial and sentencing should reflect that.

Deliberateness

[7] The Council submits that fencing was configured so that cattle would trample
the stream. The defendant does not appear to dispute that but advises that the break-feeding operation was under the control of its sharemilker. Ms Irving submits that the presence of the stock and absence of the fence were not within the direct control of the defendant at the time in question. However, in my view, that suggestion is somewhat disingenuous.
[9] The defendant must have been aware that the paddocks in question were to be grazed and that there was a need to protect the stream. It chose to rely on the sharemilker doing the right thing and he let the company down. His actions in directing the cattle through the stream must be regarded as deliberate. I accept that the offending was not deliberate on the defendant's part but clearly it was extremely careless in failing to ensure that the break-feeding operation was carried out in a way which did not damage the stream by either instruction to or supervision of the sharemilker.

The defendant's attitude

[11] The Council advises that an employee was co-operative at the time of the Council visit and Mr van Vught, the director of the defendant accepted responsibility when spoken to by the Council and has co-operated with the Council.

Attempts to comply

[11] Obviously, the electric fence had been set up in such a way that damage to the stream was inevitable. Ms Irving advises that one side of the stream has now been permanently fenced with an electric fence and that the defendant intends to fence the other side before it is stocked in winter. She produced photographs to confirm the extent of fencing undertaken to date and the Council accepts what is depicted in those photographs.

Remorse and character

[11] The defendant pleaded guilty at the first possible opportunity. It has no previous convictions. There has been no suggestion made of any previous unsatisfactory environmental conduct evidenced by abatement notices, infringement notices or the like.
[11] The Council refers to various Sentencing Act considerations and submits that the level of fine in this case must be meaningful and sufficient to hold the defendant accountable, promote a sense of responsibility, denounce the defendant's conduct and deter the defendant and others from similar offending. Neither counsel was able to point to any similar cases in this region for comparison in determining the starting point for penalty.
[11] In considering that matter I have had particular regard to the following:

• The offending occurred as part of a commercial operation;
• The level of fine ought to be such that it is not just regarded as part of the cost of doing business;

• The recognised need on a nationwide basis to keep cattle out of waterways;
• It should have been apparent that the break-feeding operation needed to be carefully managed to avoid damage to the creek which ran through the paddocks being used;
• The need to protect the catchment and tributaries of the Pomahaka from cumulative degradation;
• Finally, the levels of seriousness of dairy effluent offending identified by Judge Whiting in the Chick decision and the range of penalties applicable to the various levels. Although the Chick levels are directed at effluent offending, they also provide a wider general guideline in assessing penalties depending on seriousness of offending.

[16] Having taken all of those matters into account, and the recent suggestions from the Court as to the need to lift the level of penalties for dairy offending, I concur with Mr Logan's submission that the appropriate starting point for penalty consideration is the sum of $15,000. Ms Irving also accepts that.
[16] The defendant will receive a reduction from starting point of one third to reflect its prompt guilty plea. I had considered a further reduction to reflect the company's co-operation, improvements and previous good record. However, in my view, those factors are counter-balanced by the degree of carelessness shown by the defendant in failing to avoid what was a foreseeable problem.
[17] Accordingly I determine as follows. The defendant, Country Pastures Farm Limited, is fined the sum of $10,000. It will pay solicitor costs $113 and disbursements s $177.27. It will pay Court costs $130. Pursuant to s 342 Resource Management Act, I direct that the fine less 10 percent Crown deduction is to be paid egional Council.

B P
District Court udge/Environment Judge