Tasman District Council v Douglas DC Nelson CRI-2009-042-1258 [2010] NZDC 85 (25 January 2010)

Last Updated: 26 September 2016

IN THE DISTRICT COURT AT NELSON

CRI-2009-042-001258

TASMAN DISTRICT COUNCIL
Informant

REGINALD RALPH DOUGLAS
Defendant

Hearing: 25 January 2010

Appearances: J Ironside for the Informant A Bamford for the Defendant

Judgment: 25 January 2010

NOTES OF JUDGE B P DWYER ON SENTENCING

[1] Mr Douglas, you have pleaded guilty to one charge under s 338(1)(a) of the
Resource Management Act of discharging a contaminant, namely dairy shed effluent, onto land in a manner which contravened a rule in the regional plan, and you are hereby convicted accordingly.
[1] The offence arises out of operation of your dairy farm in Golden Bay. It
involved the discharge of dairy effluent which had ponded in a paddock and drained down an embankment, along a raceway, and into the Onehau River. The stream of effluent was seen by a Council enforcement officer, so it should have been readily apparent to you also.

• [3] I am advised by counsel for the Council that the Onehau River is of sufficient
  size to be used for recreation and that shellfish gathering occurs in the estuary at the river mouth, approximately 3 kilometres downstream from your property. The river was flowing at quite a high rate on the occasion of the offending but samples taken showed that water quality guidelines were exceeded by the discharge, including E. coli levels.
• [3] You are one of two farmers facing charges relating to discharges relating to
  this particular river in Court today. That highlights the situation to which this Court frequently refers, of multiple (and in some case comparatively minor) discharges to water, having a cumulative effect on water bodies because of the number of those discharges.
• [3] The Council has accepted that this particular discharge occurred through
  neglect, rather than deliberateness, and that once the discharge was pointed out to you, it was stopped. However, it is apparent that you have had a poor attitude towards your obligations to properly manage your farm effluent. The Council has had to issue abatement notices in relation to effluent management in May 2005, December 2006 and November 2008, and I note that those abatement notices related to various aspects of the effluent system.
• [3] The offending for which you have been convicted was discovered in the
  course of the Council checking compliance with the November 2008 abatement notice. The offending in this case appears to be of a somewhat different nature to that which gave rise to the abatement notices, as those incidents related to management of effluent sumps and ponds, rather than discharge to paddocks, as is the case in this offending. However, your past history displays, at best, a lack of commitment to satisfactory effluent management as part of your farming practises.
• [3] You have no previous convictions for dairy effluent offending, but that fact
  must be tempered by the fact that you have been the recipient of three abatement notices. The contents of the abatement notices were not challenged by appeal, and

a regrettably common fact that dairy farming offenders have often been subject to abatement and other enforcement proceedings before their ultimate prosecution.

[8] I note that one of the purposes of sentencing is to deter both the offender and
others from future offending. This purpose is significant for the small percentage of dairy farmers who appear reluctant to, or who have not changed, their dairy waste practises.
[8] I now turn to the issue of appropriate penalty. I refer to Waikato Regional
Council v GA & BG Chick Ltd (2007) 14 ELRNZ 291 where the Court endeavoured to categorise dairy effluent offending at various levels of seriousness and to identify the range of penalties which the Court has imposed for offences falling within the various levels. Chick was not an attempt to set tariffs and was to be a flexible guideline which the Judge used in that case, but it does provide a useful guide in assessing the seriousness of any particular offending.
[9] Mr Ironside for the council submits that your offending falls within level 1 identified in Chick in terms of its seriousness. That level was described as reflecting unintentional one-off incidents occurring as the result of systemic failure and reflecting little or no effect on the environment. This level of offending has generally attracted fines ranging from nothing to $15,000. Level 2, as identified, reflects unintentional but careless discharges, usually of a recurring nature over a period of time, or involving malfunction of parts of effluent systems, with no more than a moderate effect on the environment.
[9] The offending in your case has characteristics of both levels. When I take into account the recurring management failures over a period of time, the different nature of the incident on this occasion, and the moderate but identifiable effect on the water body in question, I consider that the starting point for my penalty considerations ought be the sum of $15,000, reflecting offending somewhere on the cusp between levels 1 and 2 of Chick.
[9] That brings me to the matter raised by both Mr Ironside and Mr Bamford as

which reflect the terms of an enforcement order previously made by consent. I am advised that you have spent something in the order of $40,000 to establish a weeping wall effluent system, a new storage pond and K-line sprinklers. Additionally, you are in the course of establishing a bridge crossing to ensure that your dairy herd no longer crosses through the Onehau River. This is a separate matter to these proceedings but I note the bridge will cost you somewhere in the order of $70,000. Your counsel submits that this considerable expenditure is such that no further financial penalty ought be imposed on you.

[13] Mr Bamford suggests that such an outcome is specifically contemplated by s 339(5) of the Resource Management Act. However, that provision does not create any presumption that a fine will not be imposed if an enforcement order has been made. What it says is that the Court may make an enforcement order instead of, or in addition to, the imposition of the fine. There is a discretion either way.
[13] Clearly the fact that an enforcement order has been made by consent, and has involved you in substantial expenditure, is something to which I need to have regard in determining your penalty, however, in this instance I do not conclude that it ought lead to the avoidance of a fine altogether.
[13] The upgrade of your effluent system has simply brought the system into the condition in which it ought to have been in the first place. Inadequacies in that system led to the issue of abatement notices in 2005, 2006 and 2008, and the fact that the notices were not appealed must lead to the conclusion that they were validly issued. In view of that long history of non-compliance with effluent management obligations, I consider that it is inappropriate not to impose a fine. However, I will make some allowance for your recent endeavours in the final penalty outcome.
[13] As I have indicated, I consider that the starting point for my penalty considerations ought be the sum of $15,000. You have entered a prompt guilty plea to the charge and you will receive a reduction of one third of the starting point accordingly. You are a first offender but you do not have an unblemished environmental record as established by the issue of the abatement notices. You have

however, indicated a willingness to improve your performance and incurred substantial costs (the relevant costs being $40,000) in doing so.

[17] Having regard to all of those factors, you are fined the sum of $8,000. You will pay solicitor costs in accordance with the Costs in Criminal Case Regulations, fixed by the Registrar if need be, and Court costs of $130. You will pay service costs, $247.27, and sampling costs, $1539.17.

[18] In acco less 10 perceCourt	with s 342, Resource Management Act, I direct that the fine, deduction, is to be paid to the Tasman District Council.

B P Dwyer /
District Co Judge/Environment Judge