Taranaki Regional Council v Bolton DC New Plymouth CRI-2011-043-1737 [2011] NZDC 894 (13 June 2011)

Last Updated: 26 September 2016

IN THE DISTRICT COURT AT NEW PLYMOUTH

CRI-2011-043-001737

TARANAKI REGIONAL COUNCIL
Informant

V

ROSS DAVID BOLTON
Defendant

Hearing: 13 June 2011

Appearances: K de Silva for the Informant W J Wright for the Defendant

Judgment: 13 June 2011

NOTES OF JUDGE B P DWYER ON SENTENCING

[1] Mr Bolton, you appear for sentence on two charges under• the Resource
Management Act 1991(the Act).
[1] The first, in summary, is that on 14 October 2010 at Egmont Village you
contravened s 15(1)(a) of the Act by discharging dairy effluent from a sand trap into an unnamed tributary of the Araheke Stream when that discharge was not allowed by a national environmental standard or other regulations, a rule in a regional plan or a resource consent (RM0367).
[1] The second charge, in summary, is that on 14 October 2010 at Egmont
Village you contravened s 15(1)(b) of the Act by discharging dairy effluent from a wash tank and race onto land in circumstances which may have resulted in that

effluent entering the Araheke Stream, again when the discharge was not allowed by the instruments I have referred to previously (RM0368).

[4] You have pleaded guilty to both charges and you are hereby convicted of both
accordingly.
[4] You and your wife milk about 920 cows on your 157. hectare property at
Egmont Village. You hold a resource consent allowing the discharge of treated dairy effluent from an oxidation pond into the Waiwhakaiho River and spray irrigation of untreated effluent onto land.
[4] The offending in this case was discovered in the course of the annual
inspection of your effluent system by a Regional Council officer on 14 October 2010. Upon arrival at the farm the Council officer observed that untreated dairy effluent was discharging from two different sources into a tributary of the Araheke Stream.
[4] Firstly, the effluent was discharging from an overflow pipe in a sand trap near
the farm's feed pad. The overflow pipe was discharging directly into the stream. Secondly, effluent from the dairy shed wash tank and from the entry/exit race to the shed was flowing over land, a distance of about 180 metres towards the stream, which indicates that there was a fair volume of effluent involved without trying to quantify that in any way.
[4] The Araheke Stream flows to the middle reaches of the river some seven
kilometres downstream. The Regional Plan describes the river catchment as having high natural, ecological and amenity values. It is a highly valued angling river. A report from Mr G. Bedford (the Council's director of environmental quality) summarised the results of analysis of five samples collected from the stream at the time of the offending. The report notes the importance of headwater streams such as the Araheke Stream in maintaining biodiversity. They are an important habitat for a wide range of plant and animal life and I note that you have recognised that by the riparian planting which you have undertaken.

• [9] The report concluded...The adverse effect of a discharge high in suspended
  solids, turbidity, organic loading and ammonia on such an environment would be significant. It would have rendered conditions in the tributary below the point of discharge from the pipe for the most part toxic and at the very best significantly impacted.
• [10] Mr Wright, on your behalf, accepts that the effects would have been significant on 14 October but notes that Mr Bedford's report states that rain on 17 October would have flushed the stream clean. You do not get any credit for that act of nature but I accept that the effects of the discharge were short-lived. That is often the case with dairy effluent discharges. The Court frequently notes that the matter of concern, as you may have heard me say earlier today, is the effect of numerous discharges, any one of which may only have a temporary effect but put together have on-going effects on water quality. I note again that this is one of two separate occurrences of dairy effluent discharges in this catchment which are before the Court today and the Court has heard previous cases involving discharges in this catchment.
• [10] Ms de Silva, for the Council, contends that the discharges in question involved gross negligence. It is submitted on your behalf that this was a genuine emergency situation. What is significant however, is your acknowledgement that the discharges were foreseeable.
• [10] It is apparent that the cause of the problem was an electrical failure to the farm effluent pump on the day in question, which led to a backlog of effluent and overloading of the system that day. You advised that this was remedied by manually diverting effluent to the farm effluent ponds and by blocking the overflow pipe and that the Council officer just happened to arrive at the wrong time before things were put right. You have said that the overflow pipe was installed on advice from the Council which was aware that it was in place. I note that the Council said that such an arrangement is common to enable rainwater overflow but that the pipe needs to be blocked or capped during the dairy season.

[13] It appears to me that the main point of what we have discussed is that if the discharges were foreseeable, they were preventable and systems should have been in place accordingly. They were not. Electrical and pump failures are not uncommon. Works have now been put in place to prevent a recurrence. I consider that there is some element of negligence in not having appropriate systems in place to prevent a foreseeable discharge in the first place.
[13] You contend that previous council inspections had not raised those deficiencies but ultimate responsibility for that must lie with you as the person most familiar with the system and operating it on a daily basis.
[13] You have no previous convictions. However, you have been issued with inspection reports on two previous occasions in 2004 and 2007, requiring improvements and management of the effluent system. An abatement notice was issued following the second inspection report. I do not understand there to be any argument that you complied with the inspection reports and the abatement notice.
[13] You appear to accept the Council's contention that you were not co-operative at the time of offending and put that down to the pressure of the situation and frustration with what you regarded as impracticable suggestions made by the enforcement officer.
[13] There is no dispute that you have subsequently remedied the problems which allowed the two discharges in this case, at a cost of approximately $35,000. Arguably that is work which should have been done to avoid foreseeable discharges in the first place.
[13] Mr Wright advises that you have undertaken a programme of riparian planting involving expenditure in the order of $19,000 plus over the last five years and that you are presently in the process of dedicating seven hectares of bush to the

QEII Trust. I agree with the suggestion that that indicates a responsible
environmental approach on your part generally.

[19] In considering the appropriate fine to be imposed on you, regard must be had to the fact that the maximum financial penalty for an individual offending under the Resource Management Act for any one offence is $300,000. That is obviously for the most serious offending but demonstrates that environmental offending is regarded seriously by Parliament and carries substantial penalties.
[19] Dairy effluent offending happens with sufficient regularity that there has been a whole body of case law developed around it. This regularity of offending, albeit by a very small number of farmers (1 think there are something like 2,000 dairy farmers in the Taranaki region) highlights the need for there to be a deterrent element in dairy farm offending to discourage others from offending.
[19] Both Ms de Silva and Mr Wright have referred to the Chick case (Waikato Regional Council v GA & GB Chick Ltd, (2007) 14 ELRNZ 291 (DC)) which endeavoured to analyse the types of dairy offending by their levels of seriousness. They have both concluded that your offending fell into the moderately serious band which has previously attracted fines of between $15,000 and $30,000 at the time of that case. There has since been an increase in the level of penalty by Parliament and an increase in the level of fines imposed by the Court.
[19] Ms de Silva submits that a starting point for penalty considerations in this case ought to be the sum of $50,000 for two offences. Mr Wright submits that is too high and suggests a figure of $30,000 is appropriate.
[19] I concur with Mr Wright's view that $50,000 is too high a starting point. think that is particularly the case when a global approach to the sentencing is taken.
[19] Although there were two separately identified discharges, both arose from the same underlying cause, namely electrical failure and problems with the effluent pump which lead to two separate effluent outbreaks. I consider that factor distinguishes this offending from cases such as Yates (Yates v Taranaki Regional Council 14/5/10, MacKenzie J, HC New Plymouth CR1-2010-443-008) in 2010 where there were separate discharges from separate sources identified at the same time.

[25] I disagree with Mr Wright's submission that this discharge is at the lower end of the moderately serious band. There are two aggravating factors against that proposition:

(a) The foreseeability of the discharges reflecting a high degree of
carelessness; and
(a) The fact that one of the discharges was directly into a sensitive water
body, however short-lived the effects may have been;

and these factors in my view put the offending towards the higher end of level 2.

[26] I consider that the appropriate starting point for offending in your case should be the sum of $35,000.

[27] I have noted your substantial contribution to riparian planting and the fact that these are your first offences. In my view those factors are counter-balanced by your previous inspection reports and the issue of an abatement notice.

[28] I note that there is no suggestion that there was any profit element in the offending and I note that the Council does not dispute your contention that this discharge persisted only for a short period on the day in question. That is significant. If I had concluded that this discharge had persisted over a longer period, I would have considered a significantly higher starting point.

[29] Allowing an appropriate discount for your prompt guilty pleas, I determine that your overall penalty ought to be the sum of $23,000, apportioned equally between the two offences.

[30] Accordingly, on the charge of discharging dairy effluent into water (CRN 0367) you are fined the sum of $11,500.
[31] On the charge of discharging dairy effluent onto land in circumstances which

[32] In each ease, you will pay solicitor costs as per the Costs in Criminal Cases Regulations, fixed by the Registrar if need be, and Court costs of $132.89.

BP I
Environment Court Judge