Bay of Plenty Regional Council v Riverlock Farms Limited DC Tauranga CRI-2010-047-111 [2011] NZDC 1096 (14 July 2011)

Last Updated: 26 September 2016

IN THE DISTRICT COURT AT TAURANGA

CRI-2010-047-000111

BAY OF PLENTY REGIONAL COUNCIL
Informant

V

RIVERLOCK FARMS LIMITED
IAN MICHAEL BROWN
GEOFFREY THOMAS BROWN
BROOKLYN FARMS LIMITED
Defendants

Hearing: 14 July 2011

Appearances: AA Hopkinson for the Informant

M S McKechnie for the Defendants

Decision: 14 July 2011

SENTENCING NOTES OF JUDGE J A SMITH

Introduction

[1] Messrs Brown, you are directors of Riverlock Farms Limited. That company

appears today in respect of two charges:

(a) One is that it allowed dairy effluent from an effluent pond on to land

in circumstances where it may enter water;

BAY OF PLENTY REGIONAL COUNCIL V RIVERLOCK FARMS LIMITED DC TAU CRI-2010-047- 000111

(b) The second relates to the same date and the same inspection, but

relates to an irrigator discharging on to land in circumstances where it may enter water.

[2] For reasons I will explain in due course, I see these really as being a single
part of an escape event given that the pond was overflowing.
[3] The company has entered a plea of guilty to both charges, and accordingly
this Court is addressing the question of sentencing. Everyone agrees that the appropriate course is for the adoption of a fine. Nevertheless, for reasons I will explain in due course, I consider that an enforcement order should also be made relating to contingency plans for this farm.

Background

[4] The farm operates in Waioeka Road, Opotiki. It is relatively low-lying land
and discharges from farm drains into the Waioeka River. The farm has approximately 1400 cows on it, and both Ian and Geoffrey Brown are responsible for managing that farm. Riverlock holds a consent which does not permit overflowing of the pond or discharge of effluent where it may pond or enter a drain or river.
[5] The situation is that there was extremely heavy rain during the period July to
October 2010 that had a significant impact upon farming operations, particularly those on low-lying lands. I am satisfied that this would have had an impact upon the pond's capacity by obviously diluting the effluent and increasing the volume in the pond, and also making it significantly more difficult to apply that effluent given that the ground was water-logged.
[6] Nevertheless, this case, along with others I have heard today, points out to me
that farmers are not thinking about what will happen when there is a significant period of adverse weather during the milking season, and do not consider the full range of options available. As Mr McKechnie for you accepts, that hindsight shows that there are things that could have been done, but in the moment, if I can put it that way, there is a tendency to focus on the immediate rather than the important.

[7] To that end, I have concluded that it is appropriate for this Court to make an

enforcement order as follows:

(a) The company is to provide a report from a suitably qualified
person for contingency plans in the operation of the effluent irrigation system on this farm;
(b) That is to be supplied to the Regional Council within two months,
and if they are not satisfied with the adequacy of the report, or it is not provided, they may apply for further enforcement orders from this Court.
[8] It is my view that this will enable the farm in a more direct way to recognise
the risks that it faces, and the options that are available for it if there is, for example, equipment breakdown or intemperate weather. That being said, that is an issue that goes to the future rather than the offence that brings you before the Court today.
[9] When the rainfall was about double what is expected during this period, the
pond got to capacity, you were unable to keep applying, and we have the two offences, one being an overflow of the pond, the other being the application by irrigator which ponded. Mr Hopkinson argued that this was two separate offences. I, however, consider that it has the genesis in the one event, and essentially was simply an overflow by two measures, one is out of the pond directly, the other is through the irrigator. It was quite clear given the weather that any application by the irrigator was going to pond, but the failure to irrigate would mean that the pond simply overflowed directly.
[10] The effluent did go into nearby drains, and very high readings were given for that showing that the drain was essentially comprised of effluent.

Legal background

now agreed to be that in Thurston Thurston v Manawatu-Wanganui Regional

[11] I will now deal with the legal background. The leading case in this area is

Council', and this is said that the requirements of the Sentencing Act now replace those set out in Machinery Movers Limited v Auckland Regional Council2. Nevertheless, this Court can find it helpful to consider the criteria from Machinery Movers that are relevant. In particular, in this case:

(a) the nature of the environment affected;
(b) the damage to the environment inflicted
(c) the degree of deliberateness; and
(d) the attitude of the defendant.
[12] In relation to the environment, the Waioeka river area is an area of high significance. It involves species recognised both in terms of the plan and in terms of the recreational values as being an area for indigenous fish species and dark whitebait spawning. Importantly, and I accept as a fact in this case, there is no evidence that the overflow from the pond or the irrigator reached the river. If it had, the consequences in terms of the starting point and fine in this case would have been significantly greater. Nevertheless, given the herd of 1400 cows, the quantity of effluent involved was significant and would have had a long-term irrigation effect on the environment.
[13] There is no question that as directors of the company you have fully co-operated from an early stage. Initially this matter was called and there were a number of parties charged with offences. The pleas of guilty have been entered but not at the earliest opportunity. Nevertheless, a substantial discount for that plea should also be provided for.

HC Palmerston North, CRI-2001-454-000025, CRI-2009-454-000027, CRI-2009-454-000024, 27 August 2010, Miller J
2 [1994] 1 NZLR 492

Starting point

[14] The most substantive difference between counsel was as to whether or not this should be treated as two separate offences with separate starting points or as a single event. I have already noted that I consider that there is a single event. I take into account that it is at a greater scale involving a much larger farm than many others that we discussed. I do not believe there is any evidence of systemic failure within the farm, and I have already accepted that it did not reach the river. Nevertheless, there was a large quantity of very polluted effluent discharged to drains and it is probably simply luck that it did not reach the river.
[15] When I look at this in the context of cases overall, I accept Mr Hopkinson's submission that at 10 percent of the available fine, there is no particular reason that the figure should be less. The factor that makes $60,000 the starting point is that it is for a larger farm, and accordingly the systems need to be at a higher level given the scale of any effects. From that starting point, I acknowledge that the company has entered a plea of guilty and has co-operated. Although that was not entered at the first available stage, I think the co-operation that has occurred convinces me that the discount should still be 25 percent overall.
[16] I have also had drawn to my attention by Mr McKechnie that further irrigator equipment has been purchased, and the company has brought into use a second pond. I accept that that not only has benefits for the future but is a matter that shows an improvement to the operation of the farm and gives a higher safety margin for operation. There is no dollar for dollar provision for that, but I acknowledge that some $20,000 has been spent on a second irrigator and that some of that should be taken as a benefit for the purposes of this case.
[17] Accordingly, I would allow from the net figure the sum of $5000 as a recognition of the cost of $20,000 for the second irrigator. I do not consider the auto shut-off equipment should receive any benefit because that should have been in place prior to the last event.

the Bay of Plenty Regional Council.

;e

Outcome

[18] The end result is therefore that I will adopt a starting point of $60,000, allow a discount of $15,000 for an early plea, and a further $5,000 in recognition of the new equipment purchased. The end result being that the company is fined $40,000 together with Court costs of $130, solicitor's fee of $113. Of that fine, all but 10% is