Tasman District Council v Riley DC Nelson CRI-2009-042-2921 [2010] NZDC 84 (25 January 2010)

Last Updated: 26 September 2016

IN THE DISTRICT COURT AT NELSON

CRI-2009-042-002921

TASMAN DISTRICT COUNCIL
Informant

V

PATRICIA NANCY RILEY
Defendant

Hearing: 25 January 2010

Appearances: J Ironside for the Informant W Heal for the Defendant

Judgment: 25 January 2010

NOTES OF JUDGE B P DWYER ON SENTENCING

[1] Mrs Riley, you have pleaded guilty to two charges under the Resource Management Act. The first contends that on or about 13 February 2009 you contravened s 15(1)(b) of that Act by discharging dairy shed effluent onto land when that effluent may have entered water. Secondly, you are charged that on 2 March 2009 you contravened s 15(1)(a) of the Resource Management Act by discharging dairy effluent directly into water.
[2] You have pleaded guilty to both charges and I hereby convict you
accordingly.

• [3] You operate a dairy farm in Golden Bay. It is a modest dairy farm
  comprising about 40 hectares, on which somewhere in the order of 90 cows are being milked this season. The Onehau River, which Mr Heal describes as a medium-sized stream, runs in close proximity to your cowshed and effluent ponds. The two charges arise out of incidents where dairy shed waste flowed out of the effluent sump into a farm drain and then into the Onehau river in one instance, that is the February 2009 offence, and directly through a pipe into the river, that is the 2 March offence in the second instance.
• [3] Sampling after the March incident showed E. coli levels in the river
  downstream of the discharge six times higher than upstream levels and exceeding the Ministry for Environment and Ministry of Health action guideline levels. Nitrogen and phosphorus levels exceeded water quality guidelines for protection of river systems and human health. The river apparently has a diverse freshwater fish community. You dispute that it is used for swimming, obviously it would not be so useable, if discharges of the type you acknowledge making, continue.
• [3] The most disturbing feature of the offending relates to what I regard as the
  deliberateness of it and your attitude to it. The summary of facts provided by the Council includes details of correspondence going back to December 1983 relating to discharges to the stream from your dairy effluent system. There is an ongoing litany of correspondence, queries, reminders and threats requiring you to properly maintain and operate the system. Abatement notices were issued by the Council in 2001 and 2006 and two infringement notices were issued in March 2007.
• [3] I have read the documents contained in the summary of facts with a sense of
  disbelief. I do not understand why the Council did not prosecute you many years ago, when it was clear that abatement notices were not being complied with. Although you have no previous convictions, this history of abatement notices and infringement notices establishes an appalling environmental history.
• [3] Mr Heal points to the fact that you are now 75 years old, not in good health
  and that you have failing eyesight. You are unable to concentrate and to understand

the Council into the too hard basket. The fact of the matter is that you do not need to be able to understand legal documents to know when you are polluting a stream or river, and that you ought not do so. You have simply carried on farming and polluting in a manner which ceased to be acceptable in this country many years ago. If you are unable to change your ways for the reasons identified by Mr Heal, then you should leave the dairy industry.

[8] Mr Heal advises that you have recently taken advice from a respected local
farmer which has led to improvements in your effluent systems, and I note the Council has confirmed that these improvements have been made, but they are dependent on the human operator factor. The Council is hopeful that the work which you have undertaken will prevent unauthorised discharges in the future. The history of the last 25 years gives me no confidence that your performance will improve, but the Council is hopeful that it might improve if the system is operated properly.
[8] I have given considerable thought to the appropriate penalty to be imposed on
you for this offending. You have pleaded guilty to two separate offences which are clearly part of an ongoing pattern of dirty dairying which you have undertaken over a long period of years. Although the two offences are related in that respect, they are also separate offences in the sense that one involved an indirect discharge by way of overflow from a sump, and one, a direct discharge of untreated effluent by way of pipe to the river.
[9] In terms of this latter discharge in March 2009, a Council officer had directed you to block the overflow pipe in February 2009 and you had not done so. It is difficult to characterise that offending as anything other than deliberate. The Council submits that this particular incident demonstrates a high degree of defiance and a particular want of care. No explanation to the contrary has been offered. I agree with the Council's view.
[9] I now turn to the issue of appropriate penalty. The Council has referred me to Waikato Regional Council v GA & BG Chick Ltd (2007) 14 ELRNZ 291 where the Court endeavoured to categorise dairy effluent offending in various levels of seriousness, and to identify the range of penalties which have been imposed for

offences falling within the various levels. Chick was not an attempt to set tariffs but was a flexible guideline which the Judge used in that case.

[12] Mr Ironside, for the Council, submits that some of your offending might fall within level 1 or level 2 of Chick in terms of seriousness. Some of it, in my view, clearly falls within level 3, the most serious level of dairy offending.
[12] Arguably the February offence might be regarded as a one-off failure at the least serious level of offending. Reaching that conclusion, however, requires me to ignore the previous history of abatement notices and infringement notices.
[12] The March 2009 offending cannot be categorised in that way. It involved a discharge of untreated dairy effluent via a pipe, directly to the river. You had been told by the Council to close off the pipe and you had not done so. It is difficult to characterise this offending as anything other than deliberate; or if not deliberate, demonstrating a real want of care and a total disregard for the effects of your activities on the environment. That is why I have referred to the offending as being at the most serious level.
[12] The Council has submitted that an appropriate starting point for my penalty considerations is in the range of $18,000 to $20,000 for the first offence and $30,000 to $35,000 for the second. Mr Heal has referred to your financial situation and the fact that, to use the common expression, you are asset rich and cash poor. That is unfortunately the case for many marginal dairy units. However, with respect, I consider that Mr Heal's views in this regard are unrealistic and fail to recognise that these prosecutions are the inevitable outcome of years of bad practice, as established by the issue of abatement and infringement notices. I consider that the need for deterrence is a strong factor in your case, to ensure that your farming practices change, if you are to remain in the dairy industry.
[12] I have determined to take a global or overall approach to your sentencing which recognises that the two separate offences, although technically of a different nature, reflect an ongoing systemic failure to properly manage your dairy effluent. In view of the finding which I have made as to the serious nature of the second

offence, I have determined that my starting point for penalty consideration ought be the amount of $35,000, apportioned between the two separate offences, having regard to their relative degrees of seriousness.

[17] You have entered prompt guilty pleas and final penalty will be reduced accordingly. You are a first offender, but one with a very poor environmental history and an apparent inability or unwillingness to appreciate the environmental standards now required of dairy farmers. You are in a poor income situation, but in light of the information now to hand about your financial position, it is clear that you have an equity in the farming operation well in excess of $1 million, and you are accordingly able to arrange your affairs to meet a fine of the amount I will impose.
[17] Taking all of those matters into account, I impose the following penalties:

1. On the charge of contravening s 15(1)(b) of the Resource
   Management Act, on or about 13 February 2009, you are fined the sum of $8000. You will pay solicitor costs as per the Costs in Criminal Cases Regulations, fixed by the Registrar if need be. You will pay Court costs of $130. You will pay the Cawthron Institute sampling costs identified in the Council submission.
1. On the charge of contravening s 15(1)(a) of the Resource
   Management Act, on 2 March 2009, you are fined the sum of $15,000. You will pay solicitors costs as per the Costs in Criminal Cases Regulations, fixed by the Registrar if need be, and Court costs of $130. Half of the Cawthron Institute sampling fees requested by the Council shall be apportioned to these proceedings.
1. In each case, pursuant to s 342 of the Resource Management Act, I
   direct that the fines, less 10 percent Crown deduction, be paid to Tasman District Council.

[191 In addition, I make the enforcement orders sought by the Council in these terms.

1. The Court orders under s 314(1)(b)(i) and (1)(da) and s 339(5) that
   you provide Tasman District Council, within one month of the making of this order, a farm management plan, prepared by a person suitably qualified or experienced in the operation of dairy farm effluent disposal systems, that sets out the steps to be taken to ensure that the management and disposal of effluent at your farm property at 87 Onehau Road, Puramahoi, Golden Bay, be carried out in a manner that complies with the Tasman Resource Management Plan and any relevant resource consent.
1. The farm management plan shall include the steps to be taken to
   ensure the proper operation of the storm water management system at the dairy farm, and cleaning and disposal of effluent from the concrete entrance to the dairy farm.
1. The farm management plan shall be made available to any person
   operating the farm dairy, including wash-down operations, and shall be reviewed no later than January in each year.
1. Tasman District Council shall be advised of any changes to the
   farm management plan and shall be provided with a copy of the farm management plan no later than 1 February each year.
1. This order shall cease to have effect if you cease to have any legal or
   beneficial interest in the farm property.

B P Dwyer
District Court Judge/Environment Judge