Southland Regional Council v Te Anau Bulk Haulage Limited DC Invercargill CRI-2011-025-2520 [2011] NZDC 2031 (5 December 2011)

Last Updated: 26 September 2016

IN THE DISTRICT COURT AT INVERCARGILL

CRI-2011-025-002520

BETWEEN SOUTHLAND REGIONAL COUNCIL

Informant

AND TE ANAU BULK HAULAGE LIMITED

Defendant

Hearing: 5 December 2011

Appearances: B Slowley for the Informant

K L McHugh for the Defendant

Judgment: 5 December 2011

NOTES OF JUDGE B P DWYER ON SENTENCING

[I] Te Anau Bulk Haulage Limited has pleaded guilty to four charges under the

Resource Management Act 1991. The charges are that:

• On 31 May 2011 the company discharged a contaminant, namely stock effluent from a stock truck and trailer on to land in circumstances which may have resulted in that contaminant entering water.
• On 31 May 2011 the company discharged a contaminant, namely stock effluent from a stock truck and trailer on to land in circumstances which may have resulted in that contaminant entering water.
• On 1 June 2011 the company discharged a contaminant, namely stock effluent from a stock truck and trailer on to land in circumstances which may have resulted in that contaminant entering water.

SOUTHLAND REGIONAL COUNCIL V TE ANAU BULK HAULAGE LIMITED NZEnvC INV CRI-2011-025-002520 [5 December 201I]

• On 1 June 2011 the company discharged a contaminant, namely stock effluent from a stock truck and trailer on to land in circumstances which may have resulted in that contaminant entering water.

It is hereby convicted on each charge accordingly.

[2] An unusual feature of the offending was that the four offences occurred over
two consecutive days. However there is an even more unusual feature. The contaminant involved in each case was stock effluent from dairy cows. However unlike the stock effluent offending which commonly comes before the Court the discharge in this case was not from operation of a dairy farm or, as occasionally happens, from transport wash-down facilities. The offending discharges were from trucks being operated by the defendant company which either were or had been carrying dairy cows from one farm to another. In each case the discharges of effluent were on to the roads over which the trucks were travelling.
[2] The Council contends that the roads in question are served by efficient
roadside drainage systems which would pick up the effluent as it was washed off the roads and would or might convey that effluent to watercourses. The defendant accepted that proposition and has pleaded guilty to the charges.
[2] I am advised by counsel that this prosecution is apparently the first occasion
on which charges have been laid summarily for such offending in New Zealand. Previously in Southland, at least, such offending has been dealt with by infringement notices.

[51 The offences in question happened on 31 May and 1 June 2011. Those are

the dates on which many Southland sharemilkers and farmers shift their herds on to new properties for the forthcoming dairy season. Large numbers of cows are transported at this time on what is known as gypsy day.

[6] Of the four offences, on two occasions the truck and trailer units involved

were not carrying cows and on two occasions they were. However, even when the

seen to be discharging on to the road. One of the truck and trailers concerned did not have effluent storage tanks so that the only carrying capacity for effluent was what can be contained in the trays on the truck's and trailer's decks. I note that Ms McHugh said that you thought that would have been adequate capacity.

[7] In each occasion on the two days when the trucks were stopped there were
noticeable discharges of effluent from the vehicles on to the ground, On one occasion the truck's dump valve was open.
[7] This offending involves a controversial issue in Southland and possibly other
dairy regions in New Zealand. The Council advises that the discharge of stock effluent on to roads in this region has been a problem for some time. Ms McHugh describes it as an issue rather than a problem. (I think the difference is probably a very fine point.)
[7] There is an industry Code of Practice for the Minimisation of Stock Effluent
Spillage From Trucks on to Roads. The Code was drawn up by a working group which included farmer, transport industry, transport authority and local government representatives. Compliance with the Code is voluntary and it has apparently had little success in Southland, unlike some other parts of the country. I was provided with a copy of the Code. Its success requires the co-operation of a number of parties.
[8] Farmers are required to stand their stock off pasture or feed for some hours before transporting. Apparently many are reluctant to do so. I am told that a scheme requiring farmers to sign a declaration that stock had been stood off collapsed a year or so ago.
[8] The Code envisages that effluent will be disposed of by facilities at receiving points such as farms, freezing works or saleyards. Frequently there are no such facilities and often there are practical difficulties.

[12] The Code envisages that trucks and trailers will have holding tanks to contain effluent, Some, as was the case with one of the trucks here, do not. I note Ms McHugh's advice that the bulk of your fleet does have holding tanks.
[13] Finally it is envisaged that there may be effluent disposal facilities provided
by local authorities, which happens in some parts of the country. The Council contends that it is not practicable to provide such facilities in Southland because of the complex roading system and that in any event it should not be the ratepayers' obligation to provide effluent facilities but rather the transport industry's.
[12] I appreciate that this is a complex issue whose solution requires co-operation from a number of parties. It will not be solved by the Court today.
[12] There is, however, a comparatively simple underlying legal principle. That is that it is an offence under the Resource Management Act to discharge contaminants to land in a situation where they might enter water. The road transport industry is subject to that law the same as everyone else, even acknowledging the practical difficulties which it faces. The defendant, in this case, has acknowledged by its guilty plea that the effluent from its trucks may have entered water via the road drainage system.
[12] The Court must identify the appropriate penalty having regard to the normal principles applicable to Resource Management offending and the provisions of the Sentencing Act 2002. There is clearly some element of test case about these proceedings or at least this is the first and a novel case in terms of prosecution.
[12] Both counsel have referred to the provisions of s 7 Sentencing Act which provides that the purposes of sentencing include holding the offender accountable for harm done to the community, promoting a sense of responsibility for that harm, providing for reparation, denouncing the offending and deterring the defendant and others from similar offending,

[18] An important issue in this case is identifying the seriousness of the offending. Among other things, that requires identifying the environment affected by the offending and the extent of damage to that environment.
[18] In this case the Council observes that routes used by the defendant's trucks in this offending were close to or crossed three major rivers — the Waiau, Oreti and Aparima. Other than that the Council is unable to offer any proof that effluent from the defendant's trucks actually made its way to these waterbodies and if so what damage it did.
[18] Because the volume of effluent would have been limited, it is fair to recognise that any one of the discharges considered in isolation probably had little, if any, affect on water quality in those waterbodies it may have entered. At worst it would have been minimal. That is not uncommon in environmental offending where individual discharges may each be seen as causing little harm. However, such offending is insidious in nature and must be considered in conjunction with all of the other sources of pollution which collectively contribute to degradation of the quality of our waterbodies.
[18] That said, I accept that the discharges had no proven effect on receiving waters. That factor leads me to the view that these offences are at the least serious end of the offending scale. I do not characterise the offending as trivial, however, for three reasons:

• Firstly, there were four offences in a two day period;
• Secondly, the offending is part of a wider situation of transport operators discharging effluent from vehicles on to road;
• Thirdly, that in at least one instance there is an issue of deliberateness or extreme carelessness in that a dump valve was left open.

[22] The maximum fine for offending under the Resource Management Act for a company is $600,000. On the other hand, the Council has in the past dealt with these offences by infringement fees of $750.
[22] I will be taking a global approach to sentencing in this case. I will identify a starting point penalty to be apportioned between the four offences, each of which individually appears to warrant similar penalties. I consider that the overall starting point for my considerations should be $12,000.
[23] The company has no previous convictions. It has one previous infringement
offence in 2002. I am advised that it has now put effluent tanks into the one truck and/or trailer which previously did not have tanks at a cost, as I understand it, of about $11,000 for a truck and trailer unit. I am also advised that the company has taken major steps and has committed itself to a significant cost in providing wash-down facilities for its trucks. These facilities will also be available, I am told, to other truck operators when they are established.
[22] In determining the company's final penalty I have allowed a reduction from starting point of one third to reflect those factors. The company pleaded guilty promptly to the offences and should receive a further reduction in penalty from that reduced point of 25 percent to reflect that. That gives a final penalty outcome of $6,000 to be apportioned between the four offences.
[22] Having regard to all of the above I determine as follows:

• On the charge of discharging a contaminant on 31 May 2011 (CRN 0667) the company is fined $1,500.
• On the further charge of discharging a contaminant on 31 May 2011 (CRN 0668) the company is fined $1,500.
• On the charge of discharging a contaminant on 1 June 2011 (CRN 0669) the company is fined $1,500.

• On the further charge of discharging a contaminant on 1 June 2011 (CRN 0670) the company is fined $1,500.

In each case it will pay solicitors costs of $113 and Court costs $132.89. In each case I direct that the fines, less 10 percent Crown deduction, are to be paid to Southland Regional Council.

Dwyer
District Court Judge /