Northland Regional Council v Pittam DC Whangarei CRI-2011-272 [2011] NZDC 1937 (24 November 2011)

Last Updated: 26 September 2016

IN THE DISTRICT COURT AT WHANGAREI

CRI-2011-011-000272

NORTHLAND REGIONAL COUNCIL
Informant

V

WILLIAM JOHN PITTAM
Defendant

Hearing: 14 November 2011

(Heard at Whangarei)

Appearances: K de Silva for the Informant A Dooney for the Defendant

Judgment: 24 November 2011

RESERVED DECISION

Introduction

[1] On 14 September 2010, officers from the Northland District Council ("the Council") inspected a dairy farm owned by the Fox family at Katui Road, Donnelly's Crossing, approximately 35 kilometres northwest of Dargaville. During the inspection the officers became aware of two unauthorised discharges of effluent, the first of which was from an effluent storage tank, and the second which was from an effluent storage pond. As a result Mr Fox and Mr Pittam, Mr Fox's brother-in-law and the farm manager, were charged with contravening the provisions of the

NORTHLAND REGIONAL COUNCIL V W J PITTAM DC WHA CRI-2011-011-000272 [24 November 2011]

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Resource Management Act 1991 ("the RMA"),1 A number of charges were laid against both defendants, with Mr Fox pleading guilty to two and Mr Pittam pleading not guilty to six charges, three of which were laid as alternatives. Mr Pittam accepts that the offending occurred, but contended that Mr Williams, a farm worker for whom he was responsible, caused both unlawful discharges. Mr Pittam contended that he did not know and could not reasonably be expected to have known that the offending was being committed. Further Mr Pittam contended that once he became aware of the offending, he took all reasonable steps to remedy the effects of it. Accordingly, Mr Pittam contended that he has a defence to the charges and should not be convicted of them. This is the issue I need to determine.

Procedural Matters

[2] Before considering the actual charges it is important to record that Mr Fox, a codefendant who remains to be sentenced, was a witness for the prosecution. I was concerned that this was the case, particularly given the provisions of s73 of the Evidence Act 2006, which deals with the compellability of an associated defendant in criminal proceedings. Mr Hewison, counsel for Mr Fox, was present at the hearing and confirmed that Mr Fox wished to give evidence for the prosecution, and that he had been advised that he did not have to do so.
[2] The remaining evidence for the informant was provided by Mr Wright (an experienced enforcement officer employed by the Council) and what was referred to as an agreed summary of facts2, which included a bundle of documents. As it transpired, Mr Pittam did not agree with certain parts of the purportedly agreed summary of facts. The intention in seeking to have those matters not in dispute before the Court in this way was laudable, but created some difficulties for the informant due to Mr Pittam's stance on several issues. The correct process, which would have avoided these difficulties, would have been for the uncontentious evidence to have been admitted by agreement in accordance with s9 of the Evidence Act 2006 in a more formal way, which required the defendant himself to indicate his agreement to the facts sought to be admitted.

Sections 15(1)(b) and 338(1)(a). 2 dated 19 August 2011

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The charges

[4] The rules for animal effluent discharges are contained in s16 of the Regional Water and Soil Plan for Northland ("the plan"). Rule 16.1 of the plan allows discharges of animal effluent to land provided that the permitted activity criteria are met. The farm operated its effluent disposal system to meet the permitted activity criteria, but all agreed that the discharges alleged in the informations did not comply with rule 16.1.
[4] The informant alleges that:

• (a) CRNs -046 and 043

On 14 September 2010 Mr Pittam contravened s15(1)(b) of the RMA in that he discharged dairy farm effluent from an effluent storage pond onto land in circumstances which may have resulted in that effluent (a contaminant) entering water (being an unnamed tributary of the Waima River) or, in the alternative, he permitted such a contravention;

(a) CRNs -048 and 045

On 14 September 2010 Mr Pittam contravened s15(1)(b) of the RMA in that he discharged dairy farm effluent from an effluent storage tank onto land in circumstances which may have resulted in that effluent (a contaminant) entering water ( being an unnamed tributary of the Waima River) or, in the alternative, he permitted such a contravention;

(a) CRNs -047 and -044

Between 7 September and 14 September 2010 Mr Pittam contravened s15(1)(b) of the RMA in that he discharged dairy farm effluent from an effluent storage tank onto land in circumstances which may have resulted in that effluent (a contaminant) entering water ( being an unnamed tributary of the Waima River) or, in the alternative, he permitted such a contravention;

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[6] Mr Pittam's liability arises because of the provisions of s340(1)(a) of the RMA, and the fact that he was the farm manager responsible for managing the effluent system and overseeing Mr Williams. Mr Williams was, accordingly, Mr Pittam's agent for these purposes. Despite this, s340(2) of the RMA provides that it is a "good defence" to a charge if a defendant proves that it is more probable than not that:

(a) he did not know and could not reasonably have been expected to have
known that the offence was to be or was being committed (s340(2)(a)(i)(A)), or he took all reasonable steps to prevent the commission of the offences (s340(2)(a)(i)(B)); and
(a) he took all reasonable steps to remedy any effects of the act or
omission giving rise to the offence (s340(2)(b)).

[7] In order to decide whether or not the defence has been made out, the offending itself needs to be understood. It is also important to see the offending against the background of the farm management systems that were in place on the farm (particularly the dairy effluent management system) and to understand the nature of the farming operation itself at the time of the offending.

What were the relevant management systems operating on the farm?

[8] The farm at Katui Road, Donnelly's Crossing, is one of a number of farms owned by the Fox family. Mr Fox lives on the farm as does Mr Pittam, and it is referred to as "the home farm". At the time of the offending, 280 cows were being milked on the home farm twice a day, but another herd was also being milked at the dairy shed in the morning. Due to calving, Mr Pittam's unchallenged evidence was that the morning milking most likely comprised one-and-a-half herds. The number of cows milked is relevant to the amount of dairy effluent from the shed that would have needed to be stored after each milking.

[9] The contour of the home farm is rolling to steep, and there are a number of small streams (unnamed tributaries) in the gullies on the farm. These tributaries flow to the Waima River.

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What was the effluent system on the farm?

[10] The effluent from the dairy shed on the home farm is reticulated to a concrete storage tank ("the storage tank") which has a volume of approximately 30m3. Mr Fox told the Court that after one milking the storage tank would be two-thirds to three-quarters full.3
[10] At the bottom of the tank is a hole which has an elbow and a gate valve attached to it, with an underground piping system attached to provide reticulation to the east and west parts of the farm. The underground piping system enables the effluent from the tank to flow downhill through the pipes. At the end of the underground piping system, another pipe or hose can then be attached by way of a valve to enable the effluent to be piped overland to various parts of the farm. The effluent is discharged to land via a pot-spreader, which is attached to the end of the pipe or hose, and this must be moved around various parts of the farm to avoid the overloading of effluent to land in breach of the permitted rule in the plan. It was common ground that the system itself required close monitoring to ensure that no blockage occurred in the pipes as it was accepted that the system was prone to block at various locations.
[10] The tank is an open dock tank, which means that when there is a blockage in the underground pipes or the hoses that disperse the effluent into the paddocks, the tank fills up and can overflow fairly quickly. The tank can be seen from the dairy shed, but Mr Fox said in evidence:

Q And the tank's easy to see from the milking shed?

A You have to leave the concrete and walk probably five or six metres

across and look in it. What it is, it's actually audible the difference yuo can hear whether the tank's empty or whether the tank is fill or filling.

Q But it's not a hard task to just sort of walk that distance and-

A No.

Q - have a look at a tank and —

A No.

3 Notes of Evidence, page 25, lines 15-26

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Q - of course the effluent would contrast with the white concrete so you

could see a spill from that distance?

A Oh I don't really know what you're referring to there.

Oh just that you could see it overflowing?

A You can see it overflowing, yes."4

[13] The reticulation system required daily movement because of the topography of the farm. This meant that the drag hoses attached to the underground piping system and to the pot-spreader would need to be moved every day.
[13] There was provision for an overflow from the tank via a formed dirt channel described as "impervious", which would take the overflow some 10-15 metres to a storage pond ("the storage pond").5 The volume of the storage pond is approximately 144m3. From time to time the storage pond would also fill, and when this occurred, the piping system from the storage pond would be attached to drag hoses and drained. This would need to happen about once a month,6 particularly during periods of heavy rainfall.
[13] Whilst not strictly relevant to this hearing, the agreed summary of facts referred to a number of previous occasions when Council inspections had resulted in problems with the effluent system being identified, including overflows of effluent from the storage tank and storage pond. There was no suggestion that Mr Pittam knew about these visits or the discharges identified during them.
[13] I agree with Mr Wright that the effluent system required careful management given its capacity limitations.7 Given the vagaries of farming, in my view more attention should have been paid to improving the system or its capacity before the farming operation was expanded by purchasing new properties.

4 Notes of Evidence, page 10, lines 16-29
5 Notes of Evidence, page 25, lines 25-page 26, line 6
6 Notes of Evidence, page 45, lines 10-11
7 Notes of Evidence, page 35, lines 7-8

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How was the farm managed?

[17] Mr Fox, as the owner, naturally enough retained overall oversight of the management of the home farm. Mr Fox farmed the dry stock on the non-dairy areas of the farm and provided support, including relief milking or relief management as required. Mr Fox was responsible for the "hiring and firing" of staff, and any spending over $300 needed to be approved by him or his wife.
[17] Between 2001 and 2005 Mr Pittam was first relevantly employed by Mr Fox as a lower order sharemilker on a secondary farm at Hood Road, purchased by the Fox family in 2001. In 2005 the Fox family purchased another dairy farm adjoining the Hood Road property, which was amalgamated with it and operated with a manager and two staff. At this time Mr Pittam moved to the home farm which was managed by him with one part-time staff member, and initially assisted by Mr Fox. In 2010, Mr Pittam managed the home farm (including an additional dairy support farm which had been purchased) with the help of two assistants; Mr Williams and Mr Baanders.
[17] Mr Williams is a young man in his early twenties, who was employed by Mr Fox for about 4-5 years, but I gained the impression that as a result of this offending he was dismissed.8 Mr Baanders was employed by Mr Fox in March 2010, so that at the date of the offending he had been employed for only six months. It was subsequently revealed that Mr Baanders was only 15 years of age, and his responsibilities at that time were limited to milking the cows.
[17] There was a written employment contract between Mr and Mrs Fox and Mr Pittam9 which described Mr Pittam's position as that of farm manager. Mr Pittam was responsible to report to Mr Fox. His job description included "maintaining plant, fences, races, drains, effluent system and water supply, to a functional and tidy standard"10 and supervising Mr Williams and Mr Baanders. Mr Fox described

8 Notes of Evidence, page 14, lines 34-35
9 Exhibit 2
10 Job Description

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Mr Pittam's role as 'operating manager ... He was responsible for the day-to-day operating of the farm, of farm inputs ... organised by others ... '12

[21] Whilst accepting the limitations of the effluent system, Mr Fox's evidence was that Mr Pittam was responsible for managing it, but he accepted that this did not mean that Mr Pittam would do it all himself He told the Court he expected that Mr Pittam would delegate tasks, such as dragging the hose to the paddock for discharge and placing the pot-spreader, to one or other of the staff It was Mr Pittam's responsibility to tell the staff which paddock was to be used, but Mr Fox expected Mr Pittam to maintain an overview of what was happening.12
[21] Over the winter Mr Fox had instructed Mr Pittam that all effluent was to be spread on a specific area of the home farm where he intended to plant maize in the spring13. This was so that the nutrients from the effluent could be absorbed before the maize was planted.

The actual offending

[21] During the week of 7-14 September 2010, Mr and Mrs Fox went on holiday. Mr Pittam was still responsible for calving, although it was nearing the end of that period. Sometime during the month before he went on holiday, Mr Fox instructed Mr Pittam to lower the level of the storage pond, because he had noticed it was approaching the top, but he did not give Mr Pittam any explicit instructions on how he should do that because of the routine nature of the job, which involved bringing drag hoses to the pond and connecting the pot spreader to them.
[21] During the week Mr Fox went on holiday Mr Baanders was off work on sick leave. There was a slight difference about whether this happened before or after Mr Fox went on leave, but the determination of this point is not critical, as there was no dispute that Mr Baanders was off work for most of the week that Mr Fox was away. The result was that during the week Mr Fox was on leave, in the absence of Mr

II Notes of Evidence, page 11, lines 27-29 12 Notes of Evidence, page 5, lines 10-1613
Identified on the aerial photograph produced as Exhibit 3.

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Baanders Mr Pittam was at work for up to 16 hours a day, doing the work of possibly two and a half people.14

[25] Mr Pittam told the Court that Mr Williams was unable to reliably collect the correct cows with the correct calves, so he delegated Mr Williams to responsibilities he thought he was capable of, "which was basically moving the irrigators and milking the cows."15 Mr Pittam left Mr Williams to do the jobs that he should have been able to do, and took on the remainder of the work himself.16
[25] Moving the irrigators was a task that Mr Williams had done many times before in the preceding eighteen months to two years before the date of the offending." The evidence established that Mr Fox had initially shown Mr Williams how to use the effluent system. When Mr Williams had first been delegated this particular task, Mr Pittam had checked up on him afterward to ensure that everything was in order.
[25] In the week of 7 September Mr Pittam told the Court that, for well over an hour, he walked around with Mr Williams going over to the area that was to be irrigated and explaining to Mr Williams where he wanted him to move the irrigators. He said "I rode around the system with Mr Williams. I also — it was more of showing him where to put the pot-spreader for the next few days, and where to bring the pipes to, so it was a check, and also you know showing him what to do for the next few days so he 'd be — he'd be right. He'd know exactly where to shift it to on every day, the pipes were spread out and he knew where the pipes were, and he knew where the pipes had to go."8 Mr Pittam also told the Court that the area he had chosen for Mr Williams to place the pot-spreader was at the top of the area Mr Fox had asked him to use, which was "the furtherest I could get the pipes away from the streams."19
[25] Mr Pittam told the Court that during this week he also checked the storage tank to make sure that it wasn't overflowing, believing that, if there was a problem with

14 Notes of Evidence, page 58, lines I, 2
15 Notes of Evidence, page 39, paragraphs 24-28
16 Notes of Evidence, page 57, lines 32-35
17 Notes of Evidence, pages 56 lines 31-34 — page 57 lines 1-5
18 Notes of Evidence, page 52, lines 2-9
19 Notes of Evidence, page 52, lines 29-31

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the effluent system, it would have typically shown up in the top tank.2° He also checked the pond from outside the dairy shed every day.21 In addition, Mr Pittam asked Mr Williams every day if there were any problems with the effluent, and the answer was always no.

[29] It is also important to note that during this week, being the springtime, it rained heavily.22

The inspection on 14 September 2010

[29] On 14 September three Council officers came to inspect the home farm. Mr Dacre arrived at approximately 11.00am, and was followed by Mr Wright and Ms Eagle at about 1.30pm. From the tanker track, Mr Wright observed that effluent was discharging from the storage pond (referred to as "discharge A") and from the storage tank (referred to as "discharge B"). In order to clearly identify these two discharges, a copy of the aerial map that was produced23 and is attached to this decision.
[29] The pot spreader was found in a paddock some distance away from discharges A and B. The purportedly agreed summary of facts at paragraph 38 referred to the pot-spreader not being connected to the end of the irrigation hose. Mr Pittam challenged this, and referred to photograph 32 in Exhibit 1, which shows the pot-spreader to be connected to a pipe. I accept Mr Pittam's evidence that photograph 32 shows the pot-spreader to be connected, however this difference is immaterial, because all agree that the discharges were in fact the result of a failure to connect hoses to pipes, rather than a failure to connect hoses or pipes to the pot-spreader.

Discharge A- from the storage pond

[29] The discharge did not occur near the pond, but some 90 metres24 away from it at the point where an open hose ought to have been connected to another overland hose and/or the pot-spreader. There is no suggestion that anyone apart from Mr

20 Notes of Evidence, page 54, lines 17-21
21 Notes of Evidence, page 39, lines 7-16
22 Notes of Evidence, page 45, lines 11-12
23 Exhibit 1, tab F
24 Calculated with reference to the scale which appears on the aerial map at Exhibit 1, Tab F

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Williams was responsible for connecting the hose, as he had been instructed to do by Mr Pittam. The effluent had then flowed overland for at least 60 metres to an unnamed tributary of the Waima River (referred to as "Tributary 3"). At the point of discharge onto the paddock, the effluent appears to be thickly ponded.25 Mr Wright referred to this discharge as a "black slick on the ridge"26 which was "patently obvious" to him when he drove to the top of the tanker road.27

[33] Photographs 13 and 1428 are the only two photographs in the agreed bundle of documents which show the discharge. Photograph 13 graphically reveals what could be described as "a slick" or thick circular surface area of effluent, but it is not immediately obvious from photograph 14. Discharge A does not appear to me to be clearly visible in Photograph 14. Photograph 14 was not taken by Mr Wright, although he thought that it had either been taken from the tanker track or from the race below the tank depicted in the aerial map. Mr Wright maintained, nonetheless, that this discharge was clearly visible from the tanker track, and whilst he personally took photographs from that point, none were included in the evidence.29
[33] Mr Pittam's evidence was that he did not see this discharge from the dairy shed, and he explained that the topography is such that a small rise would prevent the discharge being visible from the tanker track in general. In cross-examination, Mr Pittam's accepted that there "may be a spot you could see discharge A from ... if you knew exactly what to look for and where to look, you may have seen discharge A between the gap in the trees or something like that, but only i f you knew where to look. "30
[33] Essentially, Mr Pittam's evidence was that Mr Wright knew where to look because he was not the first on the scene and inferentially he had been alerted by somebody else to the discharges.31 I will return to this point shortly.

25 Photograph 13
26 Notes of Evidence, page 36, lines 12-14, 20
27 Notes of Evidence, page 37, lines 13-14
28 Exhibit 1, tab E
29 Notes of Evidence, page 37, lines 20-29 3° Notes of Evidence, page 48, lines 17-22 31 Notes of Evidence, page 49, lines 5-7

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Timeframe over which offending occurred

[36] There is reference in the purportedly agreed summary of facts to this discharge having occurred between 20 August and 14 September 2010. I disregard the reference to 20 August, given that the informations themselves allege offending between 7 and 14 September, and Ms de Silva was unable to provide any further evidence to establish how these dates had been established apart from with reference to Mr Fox's holiday. I am not satisfied that the evidence establishes that the offending occurred as far back as 20 August, although it must have occurred on more than one occasion between 7 and 14 September.

Overflow of effluent from the effluent storage pond onto land

[36] The agreed summary of facts refers at paragraphs 35-37 to effluent which had overflowed from the storage pond onto land. Photographs 15, 16 and 17 also show thick muddy areas of effluent situated over the embankment of the pond. Informations have not been laid for this overflow, and I accordingly disregard it.

Discharge B —from the storage tank

[36] The discharge from the storage tank occurred some 90 metres from the tank.32 Mr Fox described this with reference to photograph 333 as follows:

Photograph 3 shows the pipe that is from the collection tank, and that is a flexible piece of hose, and under the pool of effluent, are two rigid pipes fitted with cam-lock connections so that the flexible pipe is intended to be connected to one of those two in-ground pipes or alternatively, to be connected to a drag hose ... to spread effluent from the area surrounding that location.

... that is, a single hose connection that can be connected to either of two fixed hoses or it can be fixed to an on-the-surface hose ... brought onto location to reticulate from that point.34

[36] Instead of being connected, the flat hose had been disconnected, with the result that the effluent from the underground pipe formed the small pool of effluent already

32 Ascertained by applying the scale to map 1, Exhibit 1, tab F
33 Exhibit 1, tab F
34 Notes of Evidence, page 14, lines 1-10

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referred to, and had flowed overland some 70m down to another tributary (referred to as "Tributary 1 of the Waima River"). The photographs show a considerable effluent discharge with effluent visibly ponding on the land and eroding a channel. In one photograph35 a piece of white pipe was beside the channel which appeared to have been used to unblock the open hose.

[40] Once again there is no suggestion that anyone apart from Mr Williams was responsible for disconnecting the hose. Nonetheless, Mr Williams told the officers that he was not aware of this discharge, and this was referred to in paragraph 41 of the agreed summary of facts. Mr Dooney objected to this being included on the basis that it was hearsay. Ms de Silva countered with the argument that the draft summary of facts had been circulated and agreed to by counsel. For the purposes of this hearing, I disregard paragraph 41. The statement is indeed hearsay, and given the way that the hearing has progressed in relation to both discharges, my view is that Mr Williams could well have been charged with similar offences to those faced by Mr Fox and Mr Pittam.
[40] Mr Wright's evidence was that discharge point B was visible to him when he drove up the tanker track from Katui Road. He was unable to refer specifically to the part of the tanker track where he saw the discharge because it was not shown on the aerial map produced. Mr Wright said that he had not been informed of the exact position of this discharge before but, as he had been on the farm previously, he knew where the main lines from the storage tank ran. He described what he saw as "the sheeted effluent was laying on the land there, was 70 metres long and quite wide as well, ... it wasn't that difficult to spot when I drove up the tanker track".36 He said that this "sheet of effluent" was in plain view from several points on the tanker track.
[40] Mr Pittam did not see the effluent at discharge B. Further, he did not believe there was "any way you could see that"37 from the tanker track. In cross-examination, he maintained his stance that there was "definitely nowhere you can see discharge B from".38

35 Exhibit 1, Tab E, Photograph 22
36 Notes of Evidence, page 36, lines 7-9
37 Notes of Evidence, page 40, lines 16-19
38 Notes of Evidence, page 48, lines 17-19

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[43] Samples were taken from the stream, which reveal contamination from the effluent discharge.

What is the basis of the informant's case against Mr Pittam?

[44] The informant contended that Mr Pittam has not proved that it is more probable than not that he did not know and could not reasonably be expected to have known that the offence was to be, or was being, committed, or that he took all reasonable steps to prevent the commission of the offence because:

(a) both discharges A and B were visible from places where he could
have seen them;
(a) inferentially, he could have seen that the tank was filling by
physically checking it;
(a) Mr Pittam as farm manager did not adequately supervise Mr Williams
as he did not physically check that Mr Williams had done what he was asked to do. Had this level of supervision been undertaken, the informant submitted that Mr Pittam would have become aware that Mr Williams had failed to follow his instructions.

Did, or could Mr Pinar,: reasonably be expected to have seen the discharges?

[45] I accept that Mr Pittam did not see the discharges, and the case for the informant was not advanced on the basis that Mr Pittam was lying about this. At the heart of the informant's case was whether or not Mr Pittam could reasonably have been expected to have seen the discharges.

[46] I accept that Mr Wright saw both the discharges from the tanker track, but in the case of discharge A, this was with the knowledge already provided to him about where this discharge was. This was not, however, the case with discharge B. There was a direct conflict between Mr Wright and Mr Pittam as to whether discharge B could in fact have been seen from the tanker track. Mr Pittam was adamant that it could not have been, and Mr Wright was equally as adamant that he did see it, and could do so from several points along the track. I do not disbelieve either party; I accept that Mr Wright saw discharge B as he contended, and equally I accept that Mr

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Pittam did not see it. Nonetheless, I am left with a degree of unease about how much information Mr Wright had about both discharges before he came to the property. The evidence establishes that Mr Dacre was first to attend the farm, and Mr Dacre did not give evidence before me. Accordingly, there is no evidence before me that Mr Dacre was able to easily see the discharges from the tanker track without knowing they were there. In fact, there is no evidence about the nature of the investigation undertaken by Mr Dacre when he first arrived at the farm. Accordingly, there is nothing independent to essentially "back up" the question of how visible discharge B was from the tanker track.

[47] I am mindful that it is for the defendant to prove that it is more probable than not that he could not reasonably be expected to have seen the discharges. In relation to discharge A I am satisfied that this is the case, and in relation to discharge B, because of the absence of any evidence from Mr Dacre I prefer the evidence of Mr Pittam, with the result that I find that it was not reasonable for him to be expected to have seen the discharges from the tanker track.

Should Mr Pittam have checked the tank?

[47] As already outlined, Mr Pittam contended that he checked the storage tank to make sure that it wasn't overflowing, and inferentially he did this from the dairy shed every day. Photographs 1 and 239 show the storage tank to be completely empty. In fact, the inside of the storage tank appears to be clean. The photographs were taken on the day of the inspection, and photograph 1 shows the tank to be situated part way down a hill. Mr Fox's evidence was that, from the dairy shed, if you left the concrete and walked probably 5-6 metres, you could "look in it."40 This is consistent with the scale provided in the aerial photograph,41 but whilst Mr Fox said that if you did this you could "look in" the storage tank, given the context of his evidence slightly after that, I am not sure whether or not he was referring to looking at the tank and seeing it overflowing or whether from that distance a clear view of an empty tank could be ascertained.

39 Exhibit 1, Tab E
40 Notes of Evidence, page 10, line 17 41 Exhibit 1, Tab F

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[49] Mr Fox also referred to being able to hear whether the tank was empty, full or filling up, but there are no details about when it could be heard, although presumably this would be after washdown once the effluent from the dairy shed occurred. It is more probable in my view that Mr Pittam checked the tank after washdown, in which case there would be nothing to hear.
[49] I am on balance satisfied that Mr Pittam's check of the tank was reasonable, and that he was not required to go and physically look in it in order to check it. I have reached this view because the evidence establishes that the small capacity of the storage tank meant that, after one milking, it would be at least three-quarters full, and that filled to this capacity it would be obvious from the dairy shed. If Mr Pittam was able to see contents in the tank from the dairy shed, then he would know that action needed to be taken. If he could not see the effluent in the tank, in my view it was reasonable for him to assume that the system was working.

Was Mr Pittam's supervision of Mr Williams adequate?

[49] The informant's case has been advanced on the basis that Mr Pittam could reasonably have been expected to have known about the discharges, given his responsibilities as farm manager, and his purported failure to adequately supervise Mr Williams. If Mr Pittam's supervision was inadequate, then he could reasonably have been expected to have known that the offences were to be, or were being, committed.
[49] The question is whether Mr Pittam should have physically checked that Mr Williams had attached the pot-spreader to the hoses and spread the effluent in the places he had been instructed to do so. Ms de Silva submitted that it would have only taken 15 minutes for Mr Pittam to check on Mr Williams, but the evidence on this was less than clear. Initially in cross-examination, Mr Pittam said that a round trip from the dairy shed to the area he instructed Mr Williams to apply the effluent to would have taken "probably fifteen minutes."42 Then Mr Pittam said that it would have taken him a round trip of approximately ten to fifteen minutes to drive from the dairy shed to discharge area A, depending on whether he had to open gates or not.43

42 Notes of Evidence, page 47, lines 18-20
43 Notes of Evidence, page 47, lines 23-27

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Mr Pittam also said that it would have probably take him a ten minute round trip from the dairy shed to discharge area B.44 He confirmed this round trip to be about fifteen minutes further on in Miss de Silva's cross-examination of him.45 Overall, the exact time required to check both discharge areas was unclear. It could be anywhere between fifteen and thirty minutes, depending on whether or not the round trip referred to included both discharge areas A and B, or whether it meant separate round trips taking in first discharge area A, with another round trip taking in discharge area B. I am left with the impression that it is more probable than not that each trip would have taken between ten and fifteen minutes, rather than one round trip encompassing both discharge areas taking fifteen minutes.

[53] Whether or not such a trip to check on Mr Williams was reasonable to expect, depends on the factual context. I am satisfied that Mr Pittam was working very long hours, such that an additional fifteen to thirty minutes to actually check on Mr Williams was potentially unreasonable. An absolute answer to this, however, depends on whether or not there was any reason to suspect that Mr Williams would have behaved in the way it seems he did.
[53] Mr Pittam said that he did not believe he needed to directly supervise Mr Williams, as he had no reason to suspect that Mr Williams would not have connected the hose (resulting in discharge A) or actively disconnected the hose ( resulting in discharge B), because this had not been something that Mr Williams had ever done before. Mr Pittam accepted that he was required to oversee the effluent management system, but to his mind that supervision extended to checking the storage tank (which he did), keeping an eye out for the level of the storage pond (which he also did), and checking with Mr Williams every day by asking him whether he had completed what he had been instructed to do. Mr Pittam referred to the long hours he was working because Mr Baanders was sick and furthermore he was so busy with other matters on the farm that he would not have had time to do it. Mr Pittam said "I didn't have time to follow Mr Williams around looking over his shoulder."46

44 Notes of Evidence, page 47, lines 28, 29
45 Notes of Evidence, page 53, lines 28,29
46 Notes of Evidence, page 54, lines 31-32

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[55] I accept that Mr Pittam had no reason to check on Mr Williams because nothing like this had happened before. In fact, Mr Pittam's unchallenged evidence was that in relation to discharge B the hose had been actively disconnected, which meant that the problem was not immediately detectable because the storage tank did not overflow.47
[55] It was also clear that Mr Pittam had experienced difficulties in the past with Mr Williams' complying with his instructions, but these were mostly related to poor time-keeping and what Mr Pittam described as "shirking."48 There were no complaints about his management of the effluent system.49 Mr Fox confirmed that Mr Pittam had complained to him about Mr Williams, and could not recall whether any of these complaints related to the management of the effluent system. I am left, therefore, with Mr Pittam's evidence on this point, which was unchallenged and which I accept. Had there been evidence that Mr Williams had previously been irresponsible with management of the effluent system or failed to follow instructions in relation to it, it would have been reasonable to expect Mr Pittam to check the placement of the pot spreader. I am satisfied that Mr Pittam's supervision of Mr Williams at the time, knowing what he did, was reasonable.
[55] I am satisfied that Mr Pittam has proved that it is more probable than not that he did not know, and could not reasonably have been expected to have known, that the offences were to be or were being committed.
[55] I am further satisfied that Mr Pittam took all reasonable steps to prevent the commission of the offence.

Did Mr Pittam take all reasonable steps to remedy any effects of the act or omission giving rise to the offences?

[55] Mr Pittam's evidence was that as soon as he became aware of the effluent discharges he reconnected the hoses, so that there would be no further discharges from either discharge points A or B. Ms de Silva submitted that Mr Pittam was required to scrape the effluent off the ground or construct a bund to stop discharge B

47 Notes of Evidence, page 54, lines 18-24
48 Notes of Evidence, page 55, lines 30-33
49 Notes of Evidence, page 56, lines 5-7

19

from flowing into the tributary, in order to have taken all reasonable steps to remedy the effects of the offending.

[60] I do not accept that such steps were required to be taken by Mr Pittam. Whilst being described as a farm manager, he did not have any significant financial oversight or ability to incur the costs that may have been involved in removing the effluent or constructing a bund. As well, Mr Pittam's unchallenged evidence was that it would have been impossible to scrape the effluent off the ground at that time of the year, because it was "totally wet".50 In relation to the suggestion that bunding ought to have been undertaken, I am satisfied that this is a matter which would have required Mr Fox's input.
[60] In addition, neither Mr Wright nor any other Council officers suggested that such a step should be taken. Ms de Silva submitted that the Council was not required to do this, referring to the defence in s340 which requires the defendant to prove this element. I agree that the onus of proof is on the defendant, but I was not made aware of any other occasion where a defendant in such circumstances has been required to remove ponded effluent in the way suggested. In addition, the evidence in relation to discharge A was that at the time it was brought to Mr Pittam's attention, that effluent was not flowing, inferentially down the hillside, into tributary

₃51

[60] I am satisfied Mr Pittam took all reasonable steps to remedy the effects of the offending. Given that Mr Fox returned from holiday on 14 September, the day when the Council inspected, the steps required to be taken by Mr Pittam were somewhat obviated by this fact. Mr Fox told the Court that after the offending was drawn to his attention he personally ensured that the system was operating every day, and moved to expedite the de-sludging of the pond. Mr Fox then took steps to improve the reticulation system that had been started but not finished, giving, as he said, "more options and more area." He replaced the section of flat hose with a proprietary changeover fitting with the result that effluent reticulation is easier and

50 Notes of Evidence, page 59, lines 13-15
51 Notes of Evidence, page 59, line 33 — page 60, line 1

20

less inclined to block. In addition, Mr Fox constructed a pond and installed a stone trap which has relieved the need for his staff to deal with effluent every day. 52

[63] I am satisfied that the defendant has proved this element of the statutory defence to the requisite standard.

Result

[63] I am satisfied that the defence has been successfully made out, and that Mr Pittam has proved the requisite elements of the defence set out in s340 in relation to all of the charges. The analysis I have undertaken indicates that both the actual contravention and permitting contravention charges have been successfully defended.
[63] The charges against Mr Pittam are dismissed.
[63] Given that cases such as this are regularly used as precedents, I record that the facts of this case are relatively unusual, and it should not be gleaned from this decision that farm managers can necessarily escape liability because they did not know a particular offence was occurring. Each case will depend on its own facts, particularly as it relates to the degree of management oversight that may be required.

M Harland
District Court Judge

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