Southland Regional Council v Taylor DC Invercargill CRI-2011-025-2807 [2011] NZDC 2032 (5 December 2011)

Last Updated: 26 September 2016

IN THE DISTRICT COURT AT INVERCARGILL

CRI-2011-025-002807

BETWEEN SOUTHLAND REGIONAL COUNCIL

Informant

AND GEORGE LINDSAY TAYLOR

Defendant

Hearing: 5 December 2011

Appearances: B Slowley for the Informant M Morris for the Defendant

Judgment: 5 December 2011

NOTES OF JUDGE B P DWYER ON SENTENCING

[1] Mr Taylor, you appear for sentence on one charge under the Resource
Management Act 1991. It is that on 7 July 2011 you discharged wintering pad effluent on to land in circumstances where the effluent entered water. You pleaded guilty to this charge and you are hereby convicted.
[1] You are a beef and sheep farmer in Eastern Southland. In July this year a
Council inspector visited the farm in response to a complaint about a discoloured waterway in the vicinity. The inspector found that effluent from a concrete wintering pad was draining into an adjacent paddock where it entered a channel to a nearby stream. The stream is part of the Mokoreta River catchment and the Mokoreta is in turn a tributary of the Mataura River.
[1] Water in the stream was sampled. Water quality below the point of discharge
had demonstrably deteriorated when compared with that above. It is clear from the analysis of the water that there was contamination by the discharge but that the level of contaminant was considerably less than that of the usual dairy shed effluent discharges which come before the Court. The discharge was likely to have had little

SOUTHLAND REGIONAL COUNCIL V TAYLOR NZEnvC INV C121-2011-025-002807 [5 December 2011]

short-term or immediate acute effects on stream ecology, but because it had obviously been ongoing for a considerable period of time would have enhanced nuisance weed and periphyton growth which would impact on medium to longer term ecology.

[4] The Council accepts that there was no effect (or no identified effect) on major
waterways. The Council describes the offending as naive and careless, something which Mr Morris disputes on your behalf. Primarily, it was contended by Mr Morris that the visible discharge to the stream was clear. I accept the Council's view of the matter. It is apparent that there was no system of collection and management of the wintering pad effluent in place and that it was draining to the stream. The fact that the discharge was clear does not mean that it was clean.
[4] Both Mr Slowley and Mr Morris have referred to the provisions of the
Sentencing Act 2002 and the other sentencing factors to which I must have regard in fixing your penalty. I am not going to repeat them here as counsel are largely in agreement. The point of disagreement between them relates to the starting point which I must fix for penalty considerations and even then the point of disagreement between them is narrow and relates to the scale of seriousness of the offending.
[4] In my view the offending falls at the least serious end of the scale because of
its limited effects but cannot be described as minor or trivial. My reasons for that conclusion are firstly the limited short-term effect on the stream and lack of effect on major waterways. Those factors however must be tempered with the reservation that one-off discharges commonly have only limited effects when considered in isolation. However, it is the cumulative effect of numerous such discharges which is the real issue. Secondly, I note that the discharge in question was of considerably less strength than the normal dairy shed effluent with which the Court deals. Thirdly, I note the ongoing nature of the discharge which was allowed to continue intermittently for an unknown period of time. Then there is what I have identified as a degree of carelessness on your part in that the discharge was visible albeit you say that it was clear. Finally I note that the Council incurred investigation costs in the order of $2000.

[7] Taking all of those matters into account and bearing in mind that the
maximum fine applicable to an individual for Resource Management offending is the sum of $300,000, I have determined that the appropriate penalty starting point for• consideration in this case is the sum of $15,000. In reaching that conclusion I have had regard to the Robertson' case referred to by counsel where a total fine of $300 was imposed. However there are distinct differences between that case and this. Firstly Robertson involved a discharge to land only and a discharge by a smaller number of cows in that case would have been permitted. Judge Smith concluded that the offending was sufficiently minor to be at the infringement fee level of seriousness and imposed a fine to reflect that. That is not the situation in this case.
[7] You are a first offender and there is no suggestion of a poor environmental
record established by inspection notices or the like. The fact that you have now established a pumping system to drain the wintering pad shows remorse for the offending but in reality simply brings the system into compliance as it always should have been. You are entitled to a reduction in penalty from starting point of 25 percent to reflect your prompt guilty plea.
[7] Giving appropriate credit for all of those factors 1 determine that you are
fined the sum of $10,000. You will pay solicitors costs of $113 and Court costs $132.89. The fine, less 10 percent Crown deduction, is to be paid to Southland Regional Council.

B P Dwyer
District Court Judge