Taranaki Regional Council v Wood DC New Plymouth CRI-2011-043-1739 [2011] NZDC 895 (13 June 2011)

Last Updated: 26 September 2016

IN THE DISTRICT COURT AT NEW PLYMOUTH

CRI-2011-043-001739

TARANAKI REGIONAL COUNCIL
Informant

V

PHILIP JOHN WOOD
Defendant

Hearing: 13 June 2011

Appearances: K de Silva for the Informant

S W Hughes QC for the Defendant

Judgment: 13 June 2011

NOTES OF JUDGE B P DWYER ON SENTENCING

[1] Mr Wood, you have pleaded guilty to one charge of contravening s 15(1)(b)
Resource Management Act 1991 (the Act), by intermittently discharging dairy effluent onto land between 8 October and 22 October 2010 in circumstances which may have resulted in contaminants entering water. I hereby convict you on that charge accordingly.
[1] You are the sharemilker on a 48 hectare farm at Kent Road in New Plymouth.
At the time of the offending approximately 110 cows were being milked by you on the farm. This offending was discovered during the Regional Council's annual inspection of the farm on 22 October• 2010.

[3] The farm has a resource consent allowing untreated dairy effluent to be spray
irrigated to land. The October 2010 inspection found that untreated effluent was seeping from a pottle in the spraying system and ponding on the land. An effluent pond approximately 15 x 32 metres and 120 millimetres deep had been formed. The Council officer estimated that the pottle had not been shifted for at least two weeks. The effluent flowed over land for about 180 metres onto a race and then into an adjacent paddock.
[3] The Council's water resources officer (Mr A Jaramillo) provided a detailed
report into the discharge and concluded that it was highly likely that the effluent would have contaminated shallow groundwater beneath the land. You have pleaded guilty to the charge, thereby accepting that proposition.
[3] The groundwater in this vicinity contributes to a tributary of the
Mangamahoe Stream which in turn flows into the middle reaches of the Waiwhakaiho River. These waters are classified in the Regional Plan as a river catchment with high natural, ecological and amenity values which are also highly rated for aesthetic and scenic values. The Regional Plan notes that the tributaries of the river provide important native fish habitat.

[61 As is often the case in dairy effluent discharges such as this, it is impossible
to know what effect the discharge had on receiving waters. This particular discharge persisted for a period of up to two weeks. I note that you dispute the exact period over which the discharge persisted. I accept there is uncertainty about that. However, the discharge allowed the accumulation of effluent to pond over an area of 450 to 500 square metres at a depth of 120 millimetres and to flow for 180 metres or so which indicates that a fairly substantial discharge that took place, whatever the period was.

[7] In this case though, the fact that damage to the primary river system or to the
underground water itself cannot be quantified does not mean that what occurred can be treated as trivial. Mr• Jaramillo's report notes the adverse effects of even very small quantities of nitrates (which are a significant component of dairy effluent) on groundwater systems.

[8] This Court has identified time and time again that the matter so often at issue
in dairy effluent cases is the cumulative effect of numerous discharges, any one of which considered in isolation might have a negligible and purely temporary effect on receiving waters but when considered cumulatively on an on-going basis, there is an insidious long term effect. In that respect, I note that today I am dealing with two separate defendants each charged with separate discharge offences within the same catchment and I recall previously dealing with other offences in this catchment.
[8] The Regional Council contends that in your case the discharge was the result
of gross negligence. In support of that proposition, it states that the pottle had not been shifted for two weeks when it should have been shifted everyday. You do not challenge the Council's contention that the need to regularly shift the pottle had been brought to your attention on a number of occasions previously.
[9] You dispute the two week estimate but you are unable to say when the pottle was last moved, which in itself says something about the inadequacy of your effluent management practices at the time of the offending. You acknowledge that the pottle would have been in that position for at least one week and that it should have been moved more often.
[9] What cannot be disputed is that there was evidence of ponding and flow of effluent which would have been easily seen on even the most casual inspection of the system. I concur with the Regional Council's description of your offending as being grossly negligent.
[9] You have no previous convictions for dairy effluent offending. You have expressed remorse for the offending and the Council accepts that is genuine.
[9] Ms Hughes advises the steps which you have taken to improve your effluent system although I note that the failure which led to the discharge in this case was primarily a management failure rather than a systems failure. It does not matter how good your system is if you do not operate it properly.

[14] You have pleaded guilty to this charge at the first available opportunity. In your case Ms Hughes points to particular health circumstances which led to this offending and the Council has accepted that you were unwell at the time of the offending and that this may have contributed to the offence in this case.
[14] Turning now to the appropriate penalty. I think it is accepted that a monetary penalty is appropriate. The maximum penalty for offending by an individual under the Resource Management Act is $300,000. No one suggests that your offence was of the gravity which requires a penalty of that amount, but the amount of any possible fine indicates how seriously Parliament treats environmental offending.
[14] Regrettably, dairy effluent offending has become a subculture of its own in resource management law. Although only a tiny minority of dairy farmers come before the Court, dairy offending happens sufficiently often for patterns of sentencing to have emerged. I concur with Ms de Silva that your offending falls into the second level of seriousness identified in the Chick case (Waikato Regional Council v GA & BG Chick Ltd (2007) 14 ELRNZ 291 (DC)) to which Ms Hughes has referred, namely:

offending [which] reflects unintentional but careless discharges usually of a recurring nature over a period of time . .

[14] In Chick it was recognised that such offending has attracted penalties, generally between $15,000 and $30,000 per offence. Those amounts are not tariffs but are indications of the band of penalties imposed and have now been overtaken by the passage of time, on-going dairy offending and legislative change.
[14] I consider that the appropriate starting point for penalty consideration in your case is the sum of $30,000. That reflects that your offending is a one-off offence in the moderately serious band, the unknown but cumulative effect on receiving waters and significantly the very high degree of negligence involved in the offending. I accept that there was no financial advantage to you in this offending.

[19] In determining final penalty I accept that your particular circumstances of ill health contributed to the offending in this case. The Council acknowledges that there ought to be a compassionate aspect to your fine, having regard to that.
[19] I give you appropriate credit for your acknowledged remorse. I would allow a .30 percent reduction from starting point considerations to reflect those factors, namely your ill health and remorse. You are entitled to a further reduction in penalty to reflect your prompt guilty plea and that must be somewhere in the order of 25 to 33 percent of the appropriate penalty.
[19] Taking all of those factors into account I determine that the ultimate penalty outcome in your case is that you will be fined the sum of $13,500.
[19] In a dition you will pay solicitors costs as per the Costs in Criminal Cases Regulations, fixed by the Registrar if need be, and Court costs of $132.89.

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B1Vwyer .

En .onment Court Judge