Waikato Regional Council v Worsnop DC Hamilton CIV-2008-019-4606 [2010] NZDC 382 (11 March 2010)

Last Updated: 26 September 2016

IN THE DISTRICT COURT AT HAMILTON

CRI-2008-019-004606

WAIKATO REGIONAL COUNCIL
Informant

V

ALAN ROBERT WORSNOP
Defendant

Hearing: 29 & 30 October 2009

Appearances: Ms J O'Sullivan for Informant Mr R Clark for Defendant

Judgment: 2010

RESERVED JUDGMENT OF JUDGE L J NEWHOOK AS TO LIABILITY
ON A CHARGE UNDER RESOURCE MANAGEMENT ACT 1991

[1] Judgment in this case has been held up in part awaiting the decision of the
High Court as to the availability of prosecution and conviction in dairy effluent cases. t The defendant in the present proceedings raised the same defence, but it was agreed that rather hear argument in this instance, the decision of the High Court would be awaited.

Wallace Incorporation Limited and Ors v Waikato Regional Council, HC Hamilton, Wild J, CRI-2008-404-000404, 405, and 406

WAIKATO REGIONAL COUNCIL V ALAN ROBERT WORSNOP DC HAM CRI-2008-019-004606 [11 March 2010]

to the effect that informations may be brought in connection with such offending, and that leave is not necessary to commence such prosecution.2

[3] Further, it was held that Section 78A Summary Proceedings Act does not
apply to such prosecutions, and therefore any conviction entered would not contravene that provision.
[3] The defendant operates a dairy farm at Wallace Road, Cambridge, and was
charged that between 3 and 6 December 2007 he did commit a continuing offence against Section 338(1)(a) of the Resource Management Act 1991 (the Act) in that he contravened Section 15(1)(b) of that Act in discharging a contaminant, namely farm animal effluent onto land in a manner which might result in that contaminant (or any other contaminant emanating from that contaminant) entering water, namely groundwater, farm drains and connected waterways and wetlands including the Moanatuatua Peat Scientific Reserve, that discharge being not expressly allowed by a rule in the regional plan and in any proposed regional plan, a resource consent, or regulations.
[3] Just prior to the hearing, counsel for the defendant filed an admission of facts
pursuant to Section 9(2) of the Evidence Act 2006. These admissions related to the site, the permitted activity rules in the Regional Plan, the 6th December 2007 inspection, the travelling irrigator, and matters the subject of samples taken and photographs.
[3] Of relevance, and in somewhat summary form, the admissions included:

• The Site. In the relevant milking season, between 100 and 360 cows were milked on the farm twice daily. The defendant manages the farm, works on it and is responsible for the management of effluent on it, including monitoring and shifting the travelling irrigator. Apart from the initial drainage sump, there were no effluent storage facilities on the farm at the relevant time.

2 Refer Section 21 Summary Proceedings Act 1957

requires that effluent must only be discharged to land where certain conditions are met, including that:

1. That the maximum loading rate of effluent onto any part of the
   irrigated land shall not exceed 25mm depth per application;
1. That effluent shall not enter surface water by way of overland
   flow, or pond on the land surface following application;

Rule O.5.5.6 provides that the discharge of untreated farm animal effluent into water is prohibited.

6th December 2007 Inspection. There was an inspection by WRC

enforcement officers on this date when two distinct areas of over-application of effluent were seen in the paddock where the irrigator was. These were located side-by-side and had a drainage hollow running between them. Effluent had ponded on the land surface, appeared new, and the ground was wet in this area as illustrated in two photographs. The area of ponded effluent was circular, at least 20m in diameter. The irrigator was located in the middle of the area of ponded effluent as illustrated in the two photographs. There was an area of liquid effluent in a drainage hollow covering at least 50m along the paddock, with a depth of between 5cm and 10cm. At the end of the drainage hollow is a crossing and then an earth bund for the purpose of separating the hollow from another drain, as illustrated in the photograph. Liquid effluent was in the vicinity of the earth bund adjacent to the second drain as illustrated in two further photographs, and that drain was a non-flowing drain at the time of the inspection.

Irrigator. The travelling irrigator had stalled as shown in the photograph; the defendant having moved it on 3rd December 2007 to near the position photographed on 6th December 2007. The defendant had observed the irrigator turning and moving after the Ord December

shift. The ratchet on the irrigator was not working properly, causing the irrigator to stall.

• Samples and Photographs. Two samples were taken and analysed by a professional laboratory. Photograph 11 shows effluent on the earth bund at the end of the hollow drain, and photograph 6 shows effluent from the hollow drain between the two areas of over-application.

The Alleged Breach

[7] Section OO8 is the offence provision in the Act, and of relevance in the
current case is subsection (1)(a), the allegation being that the defendant committed an offence against this Act by contravening Section 15 of the Act.
[7] Of relevance to this information, Section 15(1)(b) requires that no person
may discharge any .... contaminant onto or into land in circumstances which may result in that contaminant (or any other contaminant) emanating as a result of natural processes from that contaminant entering the water.
[7] Of some relevance to the facts in this case, it is not required that the
informant prove that a contaminant did enter water, only that such might have resulted in the circumstances of the case.
[8] Reference has already been made to Rule O.5.5.1, the permitted activity rule in the Operative Regional Plan. This rule is headed "Discharge of Farm Animal Effluent Onto Land". The informant focussed on three of 10 optional parts of that rule, paragraphs (d), (e), and (O. The relevant part of the rule reads:

The discharge of contaminants onto land from the application of farm animal effluent (excluding pig farm effluent), and the subsequent discharge of contaminants into air or water, is a permitted activity subject to the following conditions:

(d) the total effluent loading shall not exceed the limit as specified in

Table 3-8, including any loading made under Rules 3.5.5.2 and 3.5.5.3, 3.5.6.2, 3.5.6.3 or 3.5.6.4.

(e) The maximum loading rate of effluent onto any part of the irrigated land shall not exceed 25mm depth per application.
(e) Effluent shall not enter surface water by way of overland flow, or pond on the land surface following the application.
[11] The hearing of evidence in this case took almost two days. Numerous witnesses were called on behalf of the informant, and two on behalf of the defendant, including the defendant himself. Considerable debate focussed on many of the elements in (d), (e) and (f) above, although interestingly, not much in relation to the second part of (f) ".... or pond on the land surface following the application",
[11] The informant produced in evidence a booklet of photographs that included some aerial shots and others taken on the ground in the vicinity of the stalled irrigator and the drainage systems in the vicinity.
[11] There was little debate that the land formation on this otherwise generally fairly flat terrain, was a hump and hollow drainage system leading down through paddocks in a gentle decline, to the point where they reached a drain perpendicular to the lines of the humps and hollows. Interposed between the ends of the humps and hollows, and the drain, was a crossing then a low earth bund.
[11] Of some importance to the factual matrix was a relatively unchallenged part of the lengthy statement (many other features were challenged) of the informant's Complaints and Enforcement Manager, qualified in soil science and hydrology, Mr R J Dragten, to the effect that the humps and hollows down the paddock are there for the purpose of draining water, and not for storing effluent.
[11] The essence of further facts largely undisputed, leaving aside the hotly disputed qualitative and quantitative details hanging from them, are:

• Each paddock on this moderately large farm is approximately 400m long, with the humps and hollows running that length;
• The irrigator had stalled towards the drain end of one run between hollows, and a circular area of effluent had been left on the ground out to within about 2m approximately of each of the adjoining hollows;

• In the adjoining run between hollows, an older similar circle of effluent was apparent;
• In the drench or hollow between the two circles, liquid effluent was ponded to some depth (not measured), but in which some blades of grass on higher ground had become partly submerged;
• There was liquid effluent on top of the build leading down to the perpendicular drain. (There was some dispute as to whether the effluent was passing over the bund and reaching the small quantity of bright green coloured still water in the drain, but the issue does not really need to be determined in view of the factual admission in paragraph [28] of the Statement of Admission of Facts, that photograph 11 showed effluent on the earth bund at the end of the hollow drain);
• Samples of effluent had been taken, one from the hollow drain, and one from the bund, both showing elevated levels of contaminants, but the latter to a lesser extent than the former;
• The area was experiencing a significantly dry period, weather-wise, and there was no issue of rainfall contributing to the situation in physical terms.

Disputed Facts

[16] Perhaps regrettably, officers of the regional council did not measure the depth of ponded effluent in the hollow trench. This led to an enormous amount of conjecture in evidence-in-chief and cross-examination, particularly from Mr Dragten, in an attempt by the informant to demonstrate scientifically that the depth would have been greater than 25mm (in breach of Rule (e)) and attempts by the defence to discredit that.

[17] In the course of these scientific debates, surmises and assumptions, I was treated to extraordinarily detailed evidence concerning the make and model of the irrigator and the dimension of its spray arms, the numbers of cows being milked twice daily, the likely volumes of water being used to wash down the milking area, the speed of travel of the irrigator, nozzle sizes, effluent output rates, causes of breakdown in irrigators, and a great many more factors.
[17] Many of these issues tended to be resolved ultimately in favour of the informant (for instance as to the model of irrigator, rates of irrigator travel, and rates of effluent output), but in the end there was sufficient doubt on the criminal standard as to whether the ponded effluent would have exceeded the 25mm control in Rule (e), at least on the criminal standard.
[17] Relatively little debate centred on Rule (d), and in particular as to whether the permitted level of nitrogen per hectare per year, 150kg (or 200kg in relation to maize production) was exceeded. It was the evidence of Mr Dragten drawing on the evidence the informant's witness, Mr Franks, that the nitrogen content of the sludge in the paddock was 5,100gm per m3. Mr Dragten said that in order to comply with the nitrogen application limit for grazed pasture, the sludge would have had to be applied at no more than 2.9mm depth to achieve a loading rate of 150kg of nitrogen per hectare (or O.9mm if maize planting was to follow as had apparently been intended — although not carried out by the defendant). Mr Dragten gave as his opinion that the solids shown in eight of the photographs appeared to indicate application well in excess of O.9mm depth. He was not really tested on that, but he had not visited the site, and the opinion must be accepted as being conjecture. Despite his apparently confident assertions about this, I find the allegations in relation to Rule (d) not to be proved to the criminal standard.
[17] That leaves the allegations in relation to Rule (f), which it will be recalled has two optional parts — first that effluent shall not enter surface water by way of overland flow, or pond on the land surface following application.
[17] Considerable debate in evidence centred on whether what was shown in

informant's witnesses were clear that it did. Others were a bit hesitant under cross-examination. Photograph 11 appeared to me to show considerable wetness, perhaps even a slight flow over the top of the bund, but it was not possible to see where the wetness or flow went to in the short distance below that, before possibly reaching the still and scum-covered small body of water in the bottom of the drain. Photograph 12 likewise. I consider that I must find on the criminal standard that this particular allegation is not made out.

[22] However, the second alternative provision of Rule (f) is in a different category. I consider that there is no significant doubt at all on the evidence about effluent ponding for a moderate length of the hollow drain, for a distance of something between 50m to 100m. It is unfortunate that its depth was not measured, but that does not matter for the purposes of Rule (f). The ponding at the lower end of the hollow drain was clearly occurring in relatively liquid form, to some depth, reaching a point close to the bund.
[22] Defendant's counsel in cross-examining the informant's witnesses, and the defendant's witnesses (the defendant himself, and Mr G A Fleming, a civil engineer with expertise in on-site wastewater), endeavoured to make much of the fact of weather conditions at the time being dry. However, the informant's witnesses stressed that a period of significant rainfall could have created the problems, for instance if a summer tropical cyclone had arrived, and even Mr Fleming reluctantly conceded that if there were to be a significant rainfall event in the circumstances photographed and described by other witnesses, the almost full to brimming over trench, as a matter of common sense, overflow into the drain. That seems to me to be correct, as a matter of almost unassailable logic.
[22] I have no difficulty in finding on the criminal standard that one of the permitted activity conditions in Rule O.5.5.1, namely that in (f), effluent should not pond on the land surface following application, was breached.
[22] I also accept the evidence of the informant's witnesses that the irrigator had stalled for a period of up to 2 days between the inspections of 4th and nth December

2007, and that the defendant was over-confident in believing the irrigator to be travelling down the paddock simply because he could see that its arms were turning.

[26] The defendant not having complied with the permitted activity rule, he must be found guilty of discharging a contaminant onto land in circumstances which might result in it entering water, and thereby guilty of an offence against the Act pursuant to Section OO8(1)(a).
[26] As something of a postscript, the defendant complained in evidence, and also through counsel, that one of the informant's officers had informed him on site that he would likely be liable to no more than an infringement notice and payment of an infringement fee. I am satisfied that whether or not such a representation was made, the discretion about whether to prosecute did not rest with that officer, but higher up in the organisation. It seems however appropriate to record that the informant's witness, Mr Dragten, conceded that the problem was an isolated incident and a comparably small area of over-application, and not one of the more serious effluent discharge cases he had come across. These concessions however do not go to liability, but may perhaps be revisited at the time of sentencing.

L J ewhook

District Court Judge/ Environment Judge