Bay of Plenty Regional Council v Kaituna Pastoral Farms Limited DC Tauranga CRI-2011-070-792 [2011] NZDC 1282 (10 August 2011)

Last Updated: 26 September 2016

IN THE DISTRICT COURT AT TAURANGA

CRI-2011-070-000792

BAY OF PLENTY REGIONAL COUNCIL
Informant

v

KAITUNA PASTORAL FARMS LIMITED
Defendant

Hearing: 14 July 2011

Appearances: A Hopkinson for the Informant T McGill for the Defendant

Date: 10 August 2011

SENTENCING NOTES OF JUDGE J A SMITH

[1] Mr Titchmarsh you appear today as the director of Kaituna Farms Limited, in
respect of a single charge of discharging effluent onto land in circumstances where it may enter water.

Background

[1] The background is relatively straight forward. The council officers attended
the property on 14 October 2010 and found that the irrigator had been ponding. The irrigator was also discharging only through one nozzle. They also noted that it was flowing along a swale drain and into a farm drain.

BAY OF PLENTY REGIONAL COUNCIL v KAITUNA PASTORAL FARMS LTD DC TAU CRI-2011-070- 000792 [14 July 2011]

[3] This farm is on low-lying land on Kaituna Road, Te Puke, this is land that

was originally swamp and was drained through a series of engineering operations by the creation of artificial drains lowering the water levels in the land it is influenced by the Kaituna River and flood gates are installed to help control water levels. Nevertheless, in very rainy periods, such as this period in 2010, the land is waterlogged with the ground water levels high.

[4] It is clear in this case that there had been a history of problems in respect of

the site. There is an argument between the parties as to whether any previous problems related to the particular issues of ponding of effluent but I accept that similar issues at least have been raised and concerns expressed by the Council.

Legal Criteria

[5] We come now to discuss the legal criteria. The leading case of direct

relevance is Thurston v Manawatu-Wanganui Regional Council1. The Sentencing Act provisions have overtaken those previously set out in Machinery Movers2. In Thurston, the Court noted the Act emphasised the polluter should be forced to internalise the cost of pollution through the imposition of penalties. Nevertheless, the criteria from Machinery Movers can be helpful in assessing the various factors that go towards the principles of the Sentencing Act. These are:

(a) The nature of the environment affected;
(a) The extent of the damage inflicted;
(a) The degree of deliberateness; and
(a) The attitude of the defendant.

[6] Other factors also that are relevant in this case include the financial worth or

ability to pay of the defendant, which is a matter raised by the prosecution.

HC Palmerston North, CRI-2001-454-000025, CRI-2009-454-000027, CRI-2009-454-000024, 27 August 2010, Miller J

2 Machinery Movers Limited v Auckland Regional Council [1994] 1 NZLR 492

[7] I also acknowledge that there is no strict sentencing bands, although, again it
can be useful to typify the type of offence within the range of effluent discharge offences that occur in New Zealand.

Environment and extent of damage

[7] The environment in this case affected is a fanning environment it has been
artificially modified. The farm drains do contain organic material, much of which is well beyond contact recreation or other standards. In this case these contaminants were quite high both up and down stream of the point of discharge. Nevertheless, these drains do discharge into the Kaituna River and this has caused considerable distress both to local Iwi and for water quality issues in the area.
[7] However, in the circumstances of this case, one must say that the
environment has already been significantly modified by the general drainage and farming activities that are conducted. Nevertheless, each individual discharge compounds the ongoing effects on the drainage system and thus on the Kaituna River.
[9] I also note that there has been an increase in the fines and this has been reflected in the significant uplift in fine outcomes in the last few years. The 560 milk cows on the farm has increased from the 400 on the property in 2001 when the original discharge consent was granted.

Circumstances of offending

[10] This affects both the extent of damage inflicted and the question of deliberateness. The land is low lying and there had been a significant period of rain fall. The difficulty is that there are systemic problems with the operation of this effluent system which are recorded in a number of reports from the council, meetings, and abatement notices relating to various matters. In particular, and fundamentally, the problem is that this farm needs to recognise that it is operating in an environment which is significantly influenced by rainfall and tidal levels and

swale bunding in response to discussions with the Council, but these were not completed at the time of offending. In addition, I consider at the very least the effluent irrigator should have had an alarm system and/or an automatic switch off I suspect the irrigator should be checked every 10 - 15 minutes. In other cases I would consider it to be reasonable to check it every 20 - 30 minutes in such an area. The consequences if the farmer is not prepared to do that is farming may not be able to continue.

[12] I am putting you on fair warning, Mr Titchmarsh, if there is a repetition of this type of offending the Court will look at significantly more stringent prosecution outcomes including enforcement orders.

[13] For current purposes I consider as a minimum the Court should require an enforcement order as follows:

(a) That the company obtain a report from an appropriately
qualified person, relating to contingency measures for the application of effluent in circumstances of equipment failure and adverse weather.
(a) That report is to be supplied to the regional council to their
satisfaction within two months of today's date.
(b) If the council are not satisfied with the report or do not receive the
report they may apply for further enforcement orders from this Court.

Starting Point

[14] This offending relates to essentially a systemic failure and although the outcomes in this case are not serious, they add to an ongoing derogation of an already derogated environment. The systemic failure in my view is serious and significant warnings have been given to the company. I also note that the director

clearly be alerted to his obligations under the Act in respect of all activities in which he is involved.

[15] The question is how is this to be addressed in terms of the various approaches required under R v Hessell3 . Mr Hopkinson suggests that an appropriate starting point in this case is $60,000. I have concluded that there were some steps have been undertaken to improve the farm and that there was also a period of significant inclement weather prior to the inspection. In those circumstances I consider that there should be a modest reduction the starting point to reflect those circumstances. Nevertheless the starting point must reflect the systemic failure to address effluent application overall. I have concluded the starting point should be $45,000.

Uplift

[15] Mr Hopkinson argues strongly that this is an appropriate case for an uplift of the starting point due to the fact that the company is one of a group of some four farms in New Zealand in which Mr Titchmarsh is either the sole director or a controlling director.
[15] He points to the Hawkes Bay Regional Council v Stockade Farms Limited"' a previous prosecution. In response Mr McGill produces a letter from the Regional Council showing that there has been significant improvement with Stockade pastoral farms by July 2011 and that they say that full compliance has been achieved. They also go on to commend Mr Titchmarsh for his efforts in that regard.
[15] In the circumstances I do consider that some uplift is appropriate. but I consider Mr Hopkinson's suggestion of 50% to be too large. In the circumstances, I consider a modest uplift in that starting point of 20% is appropriate or $9,000 giving us a starting point in respect of the matter of $54,000.

3 [2009] NZCA 450

4 CRI 2008-081-000096 (No. 2) 30 January 2009, Thompson J

Mitigation

[19] From this the maximum discount for an early guilty plea is 25% and Mr McGill and others correctly point out that the Court of Appeal did not preclude the prospect of a further 5% for remorse.
[19] In that regard I have concluded that there are factors of the way in which this matter has been argued, that do not clearly demonstrate to me that the company is remorseful for its actions, but rather, feels that it has been picked upon.
[19] I want to make it quite clear that the levels of involvement by the Council in the past show what I would call extreme tolerance of actions. I am surprised that prosecution has not occurred earlier. Certainly if significant improvement does not occur rapidly then the prospect of farming on this land may need to be reconsidered. I want to make that very clear; I do not want you to be in any doubt, Mr Titchmarsh, as to the seriousness of this issue from the Courts perspective.

Outcome

[19] Accordingly, I am only prepared to allow a discount from that figure of 25% which is for the early guilty plea, $13,500.
[19] Accordingly the company is convicted and fined $40,500 together with solicitors costs of $113.00 and court costs of $130.00. In reaching those conclusions I have specifically taken into account the order for the compliance report. In my view that order relates to the ongoing operation of the farm, given the seriousness of the situation rather than directly a penalty for what has occurred on this occasion. Without such a report I must say that I have expressed some doubt as to how this farm could be operated at this stocking level, given the problems that have occurred in the past.

[24] Accordingly, no allowance for that has been taken into account in the