Otago Regional Council v DLS Farming Limited DC Oamaru CRN 09045500041 [2010] NZDC 301 (1 March 2010)

Last Updated: 22 September 2016

IN THE DISTRICT COURT AT OAMARU

CRN 09045500041 CRN 09045500043 CRN 09045500045 CRN 09045500047

BETWEEN OTAGO REGIONAL COUNCIL

Informant

AND DLS FARMING LIMITED & DENNIS

PARTICK GARDNER Defendant

Hearing: 1 March 2010

Appearances: Alistair Logan for Informant W Dean for defendants

Judgment: 1 March 2010

NOTES OF JUDGE JE BORTHWICK ON SENTENCE

Introduction

[1] The defendants DLS Farming Ltd and Dennis Patrick Gardner have pleaded
guilty to four charges laid under the Resource Management Act 1991. Two charges relate to the discharge of dairy effluent onto land in breach of a rule in a regional plan (section 15(2)) and two charges concern the discharge of effluent in circumstances where contaminants may have entered water (section 15(1)(b)).
[1] The defendants having pleaded guilty are hereby convicted. Upon
conviction the defendant company, DLS Farming Limited, is exposed to a fine of up to $200,000 and Mr Gardner you faced an additional sentence of a possible term of imprisonment of up to two years.

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[3] The informant and defence counsel submit that in the circumstances a fine is
the appropriate penalty, and I agree.
[3] The summary of facts records that DLS Farming Limited share milks a dairy
farm located in the lower Waitaki Valley. Mr Gardner, you are the company’s sole director and shareholder. The share milking agreement between the farm owner and the company provides that the company is responsible for the operation of the effluent disposal system.
[3] As part of a routine inspection of the farm in November 2008 the informant
found extensive ponding of effluent around two irrigation pods. Effluent had run off into a ditch and from there flowed into Henderson Creek. Henderson Creek is a tributary of the Waitaki River. Brown rings around the pods indicate that there had been other incidences where effluent had been over-applied.
[3] Mr Gardner, at the time you identified a number of causes or contributing
causes for the offending, including poor drainage in the paddock and the close proximity of the irrigator to the creek. You also said that better infrastructure was required in order to avoid a repeat occurrence of this offending. You took immediate action to stop the effluent from entering the drain by blocking off the ditch and later you remediated the contamination by arranging for a vacuum tanker to move the effluent from the ditch.
[3] The inadequacies in the effluent disposal infrastructure were amplified upon
by defence counsel. There are no ponds providing for on-farm storage of effluent. The irrigation system is designed to dispose of effluent from a herd of up to 80 cows (and not the 300 cows being milked). Limited length of hose to the irrigation pods restricted the area of land able to be irrigated with effluent and also reduced the performance of the irrigator. That said, you accept that you had over applied effluent on this occasion, which resulted in ponding and apparently some of that ponding may have been mobilised into a stream by water leaking from a nearby tank. You also say that you had earlier raised concerns with the farm owner about the adequacy of the infrastructure.

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[8] It is not suggested that the offending in this case was deliberate but rather that
given the infrastructure, careful operation and close monitoring was required. Mr Gardner, while you took immediate steps to prevent the continuing discharge of effluent into the Henderson Creek, water quality testing undertaken by the informant confirmed the presence of effluent in the stream – raw effluent was entering the waterway.
[8] The summary of facts records that the nutrient levels were such that on
contact there could have been serious effects both on human health and the ecology of the catchment. The significance of this type of offending lies in the accumulation of contaminants and the gradual deterioration of water quality in both surface water and ground water bodies.
[9] In that regard, Henderson Stream is one of many waterways in the lower Waitaki River catchment. The tributaries of the Waitaki River are important for maintaining the ecological and natural values of the catchment and that is so notwithstanding that the Waitaki River is approximately five kilometres away from the point of discharge. The Waitaki River is important also because of its wetlands, indigenous plant and animal species. It is important because of the brown trout and salmon habitat it supports. It is a regional destination for hunting and fishing of game species.
[9] I have to set the starting point for a fine and that involves an assessment of culpability and the seriousness of the offending. From the starting point the fine is then adjusted upwards or downwards, taking into account aggravating or mitigating factors in relation to the offender. In this case I consider that both general and individual deterrence is needed. Individual deterrence is needed to bring home your responsibilities, notwithstanding the Sharemilker's Agreement, in terms of the Regional Plan and also the Act.
[9] Defence counsel submits that the starting point for the fines in relation to both the defendant company and you Mr Gardner should be a fine of $20,000. That I should take into consideration that the charges against the co-defendant, the farm owner, were withdrawn by the informant before a plea was entered. The decision

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whether to continue with the charges against a co-defendant is a matter for the informant and is not one in respect of which this Court can lightly interfere. Essentially it is a policy issue and in my view there is no relevant sentence in relation to the co-defendant that I can take into account.

[13] The informant submits that the starting point for a fine should be $25,000 and I consider that this is appropriate.
[13] The offending was due to lack of care on your part. Mr Gardner you were aware of the limitations of the irrigation equipment and you did not compensate for that in the way that you managed the property. The result was a discharge of a significant volume of raw effluent into the creek which had a moderate effect on the waterway. That was so notwithstanding the remedial steps that you took to clean up the same. The starting point in relation to the company is the same, as it is vicariously liable for your actions. However, in this case I must ensure that double punishment is avoided, because any fine imposed in relation to the company is going to flow on to you as the sole shareholder and the combination of penalties may produce a sentencing response that is disproportionate in the circumstances. Because of that I will reduce the fine to $15,000 and in relation to the company I will reduce the fine to $10,000.
[13] Neither defendant has previously appeared. There is no suggestion of profits being realised by the defendant as a consequence of the offending. I acknowledge that there were further measures put into place to avoid a repeat occurrence. Notwithstanding that it was the farm owners’ responsibility to provide infrastructure, Mr Gardner you purchased the additional lengths of hose required to extend the area of land that could be irrigated. You can now operate the irrigation pods in a dry, grazed out paddock and away from the area of saturated soils. These steps should be taken into account.
[13] While you did not enter a guilty plea at your first available opportunity but nevertheless you are still entitled to a discount on the fine of 20%.

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[17] In this case the various charges arise out of the same event. I consider that the charges relating to the contravention of the Act are the lead charges. On the second charges concerning a breach of a rule in a Plan, I intend to convict and discharge:

Mr Gardner:
CRN 09045500045 – convicted and fined $12,000. Court costs of $130 and solicitors costs of $113.
CRN 09045500041 – convicted and discharged. Court costs of $130 and solicitors costs of $113.

DLS Farming Limited:
CRN 09045500043 – convicted and fined $8,000. Court costs of $130 and solicitors costs of $113.
CRN 09045500047 – convicted and discharged. Court costs of $130 and solicitors costs of $113.

[17] Ninety percent of the fines will be paid to the informant.
[17] The company is ordered to pay $724-50 of the informant’s costs (which are the analysis costs). In respect of all other costs sought by the informant for its investigation I have taken those into account when setting the level of the eventual fine.

J E Borthwick
District Court Judge