Taranaki Regional Council v Plymouth Road Farms Limited DC New Plymouth CRI-2009-043-4007 [2010] NZDC 187 (12 February 2010)

Last Updated: 22 September 2016

IN THE DISTRICT COURT AT NEW PLYMOUTH

CRI-2009-043-004007

TARANAKI REGIONAL COUNCIL
Informant

V

PLYMOUTH ROAD FARMS LIMITED
Defendant

Hearing: 12 February 2010

Appearances: K de Silva for the Informant I Matheson for the Defendant

Sentenced: 12 February 2010

NOTES OF JUDGE B P DWYER ON SENTENCING

[1] Plymouth Road Farms Limited (PRF or the company) pleads guilty to two

charges pursuant to the Resource Management Act 1991. They are:

• That between 24 February 2009 and 24 April 2009 at New Plymouth it committed a continuing offence against s 338(1)(c) of the Resource Management Act 1991 by contravening an abatement notice dated 27 November 2008;
• That again between 24 February 2009 and 24 April 2009 it committed a continuing offence against s 338(1)(a) of the Resource Management Act

TARANAKI REGIONAL COUNCIL V PLYMOUTH ROAD FARMS LIMITED DC NWP CRI-2009-043- 004007 [12 February 2010]

1991 by contravening s 15(1)(b) of that Act by discharging dairy effluent onto land in circumstances which may have resulted in that effluent entering water.

[2] The company is hereby convicted on both charges accordingly.
[2] PRF owns a farm at Barrett Road near New Plymouth. 320 cows were milked by a sharemilker on the farm at the time of the offending. On the farm there is a dairy race which is used by cows going between the milking shed and various farm paddocks. The race goes under Barrett Road through an underpass and then out to the paddocks. The race slopes downward from the shed to the underpass and is concreted on both sides of, and underneath the underpass.
[2] In order to collect run-off water from the race a sump has been installed beside the race in the underpass. This receives wash-down and run-off water from the race. The wash-down and run-off water in the sump is then pumped out to be irrigated on the farm paddocks.
[2] There have been on-going issues about discharges from the sump for some years. An inspection of the farm on 26 November 2008 by Council officers, discovered that there had been an overflow or leakage from the sump. The leakage was entering Novaflo pipes which collect spring water under the race. The pipes carry the water to a small stream which is a tributary of the Tapuae stream. The distance from the sump to the stream is about 80 metres. The smaller stream enters the Tapuae about 450 metres down from the point of discharge.
[2] The Council officer left an inspection notice requiring upgrade or repair of the underpass pump to ensure that no dairy effluent entered any water body. On 27 November 2008 the Council followed that up by issue of an abatement notice requiring PRF to undertake works to ensure that no dairy effluent entered any water body.

A follow-up inspection on 13 January 2009 ascertained that works, as required, had not been done. Mr D Morris, a director of PRF, explained what was underway and PRF was given until 23 January to comply with the abatement notice.

[8] The farm was re-inspected in April 2009. Council inspection officers found
that the sump pump was not working properly, that its automatic float switch was turned off, that the sump was full of effluent, and that effluent had escaped through the Novaflo pipes to the tributary stream. Visible solids were observed in the tributary stream about 120 metres down from the point of discharge. These charges have followed.
[8] The Council advises that the Tapuae stream to where the tributary flows is a
catchment with high natural ecological and amenity values. I assume that spring water would be a significant component of the tributary.
[9] The levels of pollution of the tributary identified in a Council analysis of water samples are high. Mr Matheson submits that is because the stream contains very little water. He contends that vegetation would have had a filtering effect and that there is no evidence that contamination entered the main stream.
[9] With respect to Mr Matheson, the photographs appended to the Agreed Summary of Facts show significant and obvious pollution to the stream from what, even to the untrained eye, is clearly dairy effluent. Council analysis of the samples shows that the sump discharge was up to 300 times more concentrated than well treated dairy discharge. The Council contention that the effects of the discharge are likely to have extended well beyond the range of visible impact seems to me to be well founded, even if the actual extent of those effects cannot be quantified.
[9] That is not the point in any event. What the Court sees here is yet one more example of a one-off discharge which, regarded in isolation, might be of limited long-term consequence. As we have said time and time again, it is the cumulative effect of such discharges which is of particular concern.

• [13] I have considered the matters of deliberateness and the defendant's attitude. Management of effluent in the underpass has been the subject of regular correspondence by way of inspection notices between the Council and PRF. There have been at least four inspection notices raising various issues as to management and control of effluent in the underpass since 2001. The underpass was subject to abatement notices in 2001, as well as the 27 November 2008 abatement notice which is the subject of this prosecution. There have, accordingly, been management issues regarding it.
• [13] Mr Matheson identifies the problems which PRF has encountered with the underpass sump. Some are what might be described as structural difficulties, and some, practical management difficulties with the sump pump. It appears that a leak in a baffle, which could not be easily detected, was a substantial contributor to the problems. I agree with Mr Matheson's observation that mechanical failure, human error and lack of urgency all played a part in the contamination. That of course, in my view, points to carelessness on the part of PRF.
• [13] PRF co-operated with the Council and has no previous convictions, although it does not have entirely clean environmental hands due to the abatement notice and inspection notice issues to which I have referred. It entered an early guilty plea. It advises that everything has now been fixed, and I understand that the Council accepts that appears to be the case.
• [13] PRF is a company of some considerable substance. I note that Mr Matheson does not challenge the Council's contentions as to its general financial position based on rating valuations and the like. The Council accepts that no profits were gained directly by the offending, but points out that the establishment and maintenance of infrastructure adequate to deal with dairy effluent, is part of the cost of doing business in the dairy industry.
• [13] In determining a penalty outcome I have considered the Sentencing Act purposes of accountability, promotion of a sense of responsibility, denunciation and deterrence.

• [18] The level of seriousness of dairy discharge offences is often determined by reference to the levels of seriousness identified by Judge Whiting in the Waikato Regional Council v GA & BG Chick Limited' decision. The Judge was clear in that case that his analysis was a guide only and intended to be flexible. Dairy offending can often have features of all three levels of seriousness identified in Chick. The wide variation in fact surrounding environmental offending is well known and one reason why the Court has shied away from tariff sentencing on Resource Management Act prosecutions.
• [18] Those things said, Chick, in conjunction with the Machinery Movers case, does provide real assistance in determining just how serious any given offending might be. I consider that the offending in this case falls squarely into the moderately serious level described in Chick in these terms:

This range of offending reflects unintentional but careless discharges usually of a recurring nature over a period of time, or of incidents arising from malfunction of different parts of the system. The offending is often manifested by a reluctance to address the need for a safe system of effluent disposal, resulting in delays in taking restorative action. It also reflects little or at the most moderate effect on the environment.

[18] This situation of discharges or leakages from the underpass sump in one form or another and caused by one reason or another, persisted over a period of years. It involved a combination of problems but was fixable if the defendant had a mind to do so. I accept that over part of the time Mr Morris may have been diverted by personal issues.
[18] Moderately serious offending has tended to attract starting point considerations in the range of $15,000 to $30,000.
[18] The Court is dealing with two offences in this case, both arising from the same events. That commonly requires a global approach to sentencing reflecting that common element. However, it is necessary to recognise that breach of an abatement notice is of itself a serious offence which needs to be marked by an

(2007) 14 ELRNZ 291.

appropriate penalty, even if it does arise from the facts which give rise to the second charge in this instance.

[23] Abatement notices are statutory instruments devised to give teeth to council enforcement processes. They add a degree of formality and statutory weight which extends beyond council letters and inspection notices. If recipients of abatement notices may ignore them with impunity or fail to comply with them for any reason, they lose their effectiveness. For this reason I consider that breaches of abatement notices should attract a significant penalty in their own right. Having said that, I accept that the outcome of the sentencing process must be reasonable and appropriate when viewed in its totality.
[23] I note that Council costs including in-house time arising out of this offending are in excess of $11,000, and that ought to be taken into account in my penalty considerations. The financial capacity of PRF and the need to ensure that any fine does not simply represent the cost of doing business is also a relevant factor in this case.
[23] Taking all of those matters into account, I determine that the starting point for my penalty considerations ought be the sum of $30,000 all up, as suggested by Ms de Silva, and apportioned between the two charges. The defendant is entitled to a 33 percent discount from starting point for its prompt guilty plea. Its co-operation with the Council, and subsequent work to remedy the problem are noted, but I think these are counterbalanced by the carelessness shown by the lack of urgency to resolve an on-going problem.
[23] Accordingly I determine as follows:

• On the charge of contravening an abatement notice (CRN 4357) Plymouth Road Farms Limited is fined the sum of $10,000. It will pay solicitor costs in accordance with the Costs in Criminal Cases Regulations (fixed by the Registrar if need be) and Court costs $130;

• On the charge of discharging effluent to land in contravention of s 15(1)(b) of the Resource Management Act (CRN 4358) it is fined $10,000. It will pay solicitor costs in accordance with the Costs in Criminal Cases Regulations (fixed by the Registrar if need be) and Court costs $130;

[27] In each case, pursuant to s 342 Resource Management Act, I direct that the fine, less 10 pe c-nt Crown deduction, be paid to Taranaki Regional Council.

B P Dwyer
District Ce Judge/Environment Judge