Southland Regional Council v Belling DC Invercargill CRI-2010-025-4368 [2011] NZDC 881 (10 June 2011)

Last Updated: 26 September 2016

IN THE DISTRICT COURT

AT INVERCARGILL

CRI-2010-025-004368 CRI-2010-025-004366

BETWEEN SOUTHLAND REGIONAL COUNCIL

Informant

AND KEVIN BELLING and

RHONDA RAYMOND-WILLIAMS Defendants

Hearing: 10 June 2011

Appearances: B Slowley for the informant K Belling appears in person

C Smith for defendant Raymond-Williams

Judgment: 10 June 2011

SENTENCING NOTES OF JUDGE J E BORTHWICK

[1] Kevin Belling and Rhonda Raymond-Williams, you have each pleaded guilty
to four offences laid under s 15(1)(a) and (b) and s 338 of the Resource Management Act 1991, and having pleaded guilty you are hereby convicted.
[1] The penalties that apply to each of these offences is a fine of up to $300,000
and in addition you are exposed to a term of imprisonment of up to two years. All parties are of the view that a fine is an appropriate outcome. I agree and the sole issue for determination was the starting point of the fine.
[1] While some of the details in the summary of facts were challenged by Mr
Belling having canvassed them, it is my view that these do not affect the starting point for a fine. In respect of Mr Belling I gave an indication of the starting point of $75,000 for the offences other than those concerning the dumping of cattle beasts and all parties were happy to proceed on this basis.

The summary of facts

[4] The defendant, Rhonda Raymond-Williams, owns a dairy farm located at
Waituna, approximately 30 kilometres east of Invercargill. The property carries a

dairy herd of up to 599 cows. Resource consent was granted to
Ms Raymond-Williams authorising the discharge of dairy shed effluent provided that it does not enter into any surface watercourse (condition 3); or within 20 metres of any property boundary (condition 5); and that there is no surface run-off, overland flow, pond or contamination of water as a result of its application to pasture (condition 8).

[4] Ms Raymond-Williams is married to the defendant, Kevin Belling.
Mr Belling says that he is .responsible for the day-to-day management of the farm. While Ms Raymond-Williams has limited involvement in the farm she is the family's primary caregiver. The defendants have three young children under the age of 15. Ms Raymond-Williams says that she did not have any direct involvement with the events that have lead to the prosecution and that her culpability is significantly less than that of her husband. Mr Belling agrees and says likewise. This is important because your different roles must be individually considered when determining the starting point for the fines.
[4] I turn next to the four events that are the subject matter of the charges.

Travelling irrigator (CRN 10025501039 & 10025501047) 15 September 2010

[7]- The defendants each face a single charge arising out of the ponding of

effluent around a travelling irrigator in circumstances which may have resulted in contaminants, namely effluent, entering water.

[8] The summary records that the paddock was saturated with effluent and that

effluent was running down a slope into a low lying swale. While the summary states that the swale discharges into a tributary of the Waituna Stream, Mr Belling says that this is incorrect. This . discrepancy was extensively canvassed and with the

agreement of the informant and the defendants, the charge is dealt with on the basis that it did not directly enter the Waituna Stream, but rather the discharge of effluent was onto land in circumstances where it may have entered water.

Rubbish Hole (CRN 1002551040 & 1002551048) 16 September 2010

[9] On this day carcasses of several dead cows were discovered dumped in the
gravel pit. The photographs attached to the summary show that the pit is full of water. The information alleges that contaminants from the carcasses would have entered water; I am told groundwater as opposed to surface water.

Discharge from a race (CRN 100255041 & 1002551049)

16 September 2010 •

[10] On the same date effluent from a drainage shed had discharged through a hole in a nib wall which had been constructed to contain the same. The hole had been cut for pipework to be inserted. While those pipes were present on the site the work had yet to be done. The effluent had discharged through the nib wall on to land in circumstances where it may have entered water, however, there is no allegation that it directly enter a waterway.

Travelling Irrigator (CRN 10025501042 & 10025501050) 20 October 2010

[11] On 20 October 2010 the travelling irrigator had stalled but nevertheless continued to operate. Contrary to a condition of the resource consent effluent was being sprayed within 20 metres of the property boundary and onto a road verge. There was considerable ponding of effluent in a paddock both near the stalled irrigator and in a swale over which the irrigator had travelled. In addition there was effluent leaking out a hole in the effluent line which would have been obvious when the irrigator was operating.

• [12] The summary of facts records that the property is very wet, and has an extensive tile drain system which is relied on for drainage. Further, the land is not managed to take into account the fact that there are areas on the property that hold

water permanently. •

Deliberateness and Attitude of the offenders

[12] On five of the last seven inspections of this property by the Regional Council, it found areas of significant non compliance with conditions of the consent. On the remaining two inspections the property gained a marginal pass. An abatement notice was issued on 17 December 2009 to cease discharge of effluent to land in circumstances where it may enter water. In 2004 Ms Raymond-Williams was convicted of an offence under the Resource Management Act, which offence was also in relation to the discharge of dairy shed effluent on to land which in that case entered a tributary of the Waituna Creek.
[12] Mr Belling says, by way of explanation, that the dairy farm has 14 days' effluent storage and this was in place before he and Ms Raymond-Williams took over the property 10 years ago. Unless irrigation takes places, he advises the storage pond would overflow and if that were to happen there would be more serious environmental consequences as effluent would enter the Waituna Lagoon via discharge into one of its tributaries. He says that given the ground conditions and the type of irrigator in use ponding is inevitable.
[12] Mr Belling and Ms Raymond-Williams are now having to confront the

limitations of the farm infrastructure and no doubt this is at considerable cost. Mr Belling says that these incidents are not as a result for a callous disregard of the environment but are caused by a system which has struggled to cope with a changing environmental standards and conditions.

[12] Finally Mr Belling also says the informant should have issued an abatement notice in relation to the dumping of cattle. I observe that prosecutorial decisions of the Regional Council are a matter for it and the court does not interfere with them.

[17] The informant submits that the offending was not deliberate in the sense that Ms Raymond-Williams or Mr Belling set out to commit an offence that it nonetheless was occasioned by a real want of care.

Nature of the environment

[17] The property is located near to the Waituna Stream and Currant Creek which flow into the Waituna Lagoon. The Waituna Stream is a significant brown trout hatchery and habitat. The lagoon into which it flows, along with the Awarua Wetlands, are a designated wetland of international significance (it is a Ramsar site). This 15,000 hectare wetland is managed by the Department of Conservation. It includes one of the largest remaining wetland complexes in New Zealand. These wetlands are recognised as an important area for their biological diversity and cultural values. Ngai Tahu traditionally utilize the wetlands as a food source and for other resources. These values are set out in the statutory acknowledgement under the Ngai Tahu Claims Settlement Act 1998. The wetlands designation as a Ramsar wetland recognises its international importance.

Harm done to the environment

[17] In terms of the harm done to the environment, the informant submits that this • is not the most serious offending of its type in Southland and its concerns are directed towards the gradual degradation of the Waituna Lagoon as a result of increasing levels of nitrogen and phosphorus through groundwater infiltration and surface water flows. These concerns are well-founded.
[17] I am proceeding in sentencing today on the basis that with the exception of the dumped carcasses into a pit, that the discharges were on to land in circumstances which may have resulted in contaminants entering water.
[17] The harm done to the environment is often greater if there is a direct discharge into the waterway and this will bear in the starting point for a fine. However, given that there is a high water table in parts of this farm, that the discharge on 15 September 2010 was into a swale, and the farm's proximity to other

large water bodies in this area, the probability that there has been infiltration of contaminants into these water bodies is high, albeit the extent of harm cannot be quantified. I understood Mr Belling to accept this.

Starting point for a fine

[22] Ms Raymond-Williams and Mr Belling you are dairying in an area which has a high water table and is near a wetland of particular ecological importance. The environment in which you farm is difficult and challenging. Nevertheless you have accepted these constraints by deciding to farm on this property and by accepting the conditions of the resource consent which authorise your activities. One way to manage these constraints is by making an appropriate level of investment in your infrastructure. While Regional Council offers advice on these matters it is not its responsibility to tell you how to manage your property, because what is required for each farm will differ.
[22] I find in this case that the offending, if not deliberate, was occasioned by a real want of care on the part of Mr Belling. Mr Belling, you acknowledge your infrastructure was inadequate to avoid unlawful discharges and that you could not comply with the conditions of consent. Further, this offending takes place against a background where there has been a history of non compliance with the conditions of the consent. That said, the offending is of moderate seriousness. It is not the worst of its kind, but the informant is rightly concerned about the cumulative effects of unlawful discharges. That there is such an effect is evidenced by the gradual degradation of the Waituna Lagoon as a result of past discharges. But you are not being sentenced today on the basis that you are solely responsible for this. This is not what is suggested by the informant.
[22] When deciding upon the starting point I am required to assess the culpability of each of you and to impose a penalty that reflects the gravity of your individual offending (Ca!ford Holdings and another• v Waikato Regional Council),

Ms Raymond-Williams

[25] This is important because Ms Raymond-Williams, while you accept liability, you have relied on your husband to manage the property. Ms Raymond-Williams, I am satisfied that in your personal circumstances, given the injuries that you suffered in a motor vehicle accident and its ongoing impact on your life, your culpability is much less than that of your husband. Had you not had a previous conviction I would have convicted and discharged you without further penalty, instead I will impose a fine on each of the offences, the starting point for each will be $1800.

Mr• Belling

[25] In respect of Mr Belling, the informant originally sought a starting point for $50,000 for the offences involving the travelling irrigator; $50,000 for the hole in the nib wall and $30,000 for depositing contaminants into water, namely the stock carcasses. The total starting point for a fine sought by the informant was $180,000.
[25] In the recent decision of Southland Regional Council v Taiisker Farms which was similar offending but over a considerably longer period, I set the starting point there for $110,000, It was a global starting point for a fine. I will do the same here, save in relation to the dumping of the stock which is unlike the other offending. Otherwise this offending arises out of poor management of dairy shed effluent.
[25] Given the matters above for those offences concerning the discharge of dairy shed effluent I set the starting point for a fine at $75,000. In respect of the dumping of the cattle beasts, I have very little information by which to make an informed decision. I can see from photographs there appear to be three cattle beasts in water. I have no idea about their state of decomposition but I accept (as does the the defendant and the informant) that there must have been contamination. However, the starting point seems high to me and I set it at $10,000.
[25] I acknowledge, Mr Belling and Ms Raymond-Williams, the steps that you are now taking to upgrade your infrastructure on the property. You have replaced the

travelling irrigator with pods. It is your intention to construct a much larger storage pond. However, I do not regard this going to mitigation because, in my view, you should have had this infrastructure in place at the commencement of the dairy season, I am not told how much you invested in the pods but I take this into account in arriving at the eventual fine.

[30] Mr Belling, many of the factors you put forward in mitigation unfortunately see them as aggravating. I am concerned that you do not see them the same way; but in any event I have taken those into account in the starting point for the fine.

[31] You are both entitled to discount for your early guilty pleas of 25 percent. have considered your financial statements. There is nothing to suggest that you cannot afford a fine; indeed your assets are substantial.

[32] Mr Belling, your eventual fine is $60,000 to be made up as follows:

(a) in relation to CRN 047, 15 October, ponding in association with the
use of the travelling irrigator, you are fined $20,000;
(a) in relation to CRN 049, 16 October, regarding the discharge of
contaminants through a hole in the nib wall, you are fined $7500;

(e) in relation to CRN 048, 16 September, dealing with the depositing of

stock carcasses into water, you are fined $7500;

(d) in respect to CRN 047, 20 October, ponding in association with the

use of a travelling irrigator, you are fined $25,000.

[33] Ms Raymond-Williams, is convicted and fined $1500 in relation to each offence.

[34] You are both ordered to pay solicitors costs of $113 and court costs of $132.89. Ninety percent of the fines are to be paid to the informant. I make no order for the informant's costs because I have taken these into account in setting the level of the fine.

/

Borthwick

istrict Court Judge