Waikato Regional Council v J and J Watt Limited [2015] NZDC 4598 (5 March 2015)

Last Updated: 10 August 2016

IN THE DISTRICT COURT AT HAMILTON

CRI-2014-019-004673 [2015] NZDC 4598

WAIKATO REGIONAL COUNCIL

Informant

v

J AND J WATT LIMITED DEREK JAMES WATT PETER LAWRENCE WATT Defendants

Hearing:	5 March 2015
Appearances:	S Cameron for the Informant P Lang for the Defendants
Judgment:	05 March 2015

_{NOTES OF JUDGE C J THOMPSON ON SENTENCING}

[1] A company, J and J Watt Limited, has pleaded guilty to four charges, one being the breach of an abatement notice, and three being representative charges of disturbing a watercourse, a river and a wetland. Other charges laid against Mr Watt personally have been withdrawn as part of a plea arrangement.

[2] The charges arose in early 2014 on an approximately 92 hectare dairy farm on the boundary of Cambridge, relatively close to the banks of the Waikato River.

[3] The company had obtained a resource consent to divert a stream into recontoured land, on what was acknowledged to be an erosion-prone area of its farm, in a gully containing a relatively small wetland area. The aim of the exercise

_{eventually was to recontour the land around that wetland to produce easier and better}

WAIKATO REGIONAL COUNCIL v J AND J WATT LIMITED DEREK JAMES WATT PETER LAWRENCE WATT [2015] NZDC 4598 [05 March 2015]

grazing land for the farm operations, and there was also an expressed intention to enhance the wetland area and the surrounding stream.

[4] The stream diversion itself was undertaken - not exactly when it was originally intended to be done - but a little later than that, and it was done without issue. But before the subsequent recontouring work was undertaken, and at a time when the term of the resource consent was running close to expiry, work began on digging out or clearing drainage channels in the stream and creating tracks around the wetland area and around the stream, in some cases outside the area covered by the consent.

[5] No, or if there were any, completely inadequate sediment controls were put in place. The result was sedimentation in the stream which flows to the Waikato River about 700 metres away. It needs to be said that there is no evidence that that sedimentation did in fact reach the river, but for a time at least undoubtedly the sediment load in the stream must have been significantly increased. The council also, in speaking of effects of what was done, speaks of the loss of part of a locally significant wetland through the work and which it is not now practical to restore. Mr Lang for the defendant company takes issue with that, submitting that if there was any area of wetland lost, in net terms it was so small as to be insignificant. I cannot take that further on the basis of the information before me, but it is part of an overall situation that I will discuss when I come to dealing with effects in full.

[6] When the work that was done was discovered an abatement notice was issued. In part that was complied with but in part it was not, in the sense that after it was issued tracking work was done slightly away from the immediately affected area around the wetland and the stream but still within the area covered by the abatement notice. So to that extent the abatement notice was not complied with, although the practical effects of that work were not, it seems, significant.

[7] In thinking about an appropriate penalty one needs to start with the knowledge that for an incorporated defendant, that is a company, the maximum financial penalty for each of these charges is now set at $600,000: - in other words there is a theoretical maximum for these four charges of $2.4 million. That

demonstrates the seriousness with which this sort of offending is regarded by the legislature.

[8] Both counsel have referred, in very fulsome and helpful submissions, to the factors that I need to consider. In dealing with an appropriate penalty they are largely the factors set out in the well traversed case of Machinery Movers Ltd v Auckland Regional Council [1994] 1 NZLR 492 (HC) and I also of course need to take into account the purposes and principles of sentencing in the Sentencing Act 2002.

[9] In terms of the nature of the environment, I have already dealt with that I think, probably in sufficient detail. This was a low-lying gully area containing a relatively small wetland with streams flowing through it. The stream flowed to a major river subject, as is well known, to issues about sediment input - so to that extent the nature of the environment was a sensitive one.

[10] The effects in the short term, as I have said, would undoubtedly have been issues about sediment load although I emphasise again that we do not have any evidence of how far that might have gone. In the longer term the outcome is shown by reports, one from NIWA and others, produced to the Court, and I think that there is absolutely no reason why I cannot rely on them, to be that the longer term effects have been minor, at worst. Indeed comments in the reports are that this was not an ecological system of high quality at all and that the longer term effects of the work done on it are not regarded as significant.

[11] In terms of whether or not the offending was deliberate and the attitude of the defendant company, I have to say I am slightly mystified that the company, through Mr Watt, no doubt went to the council; sought and obtained an appropriate consent; described the work that was to be done and the outcome that was expected of it; got that consent - but then completely failed to take account of what the consent actually required by way of conditions in terms of sediment control and all those other issues that have already been traversed. How that came about frankly is something of a mystery to me looking at the situation from here, where we have people who are experienced farmers but who have simply carried on without fully reading the

resource consent or really complying with it. It was undoubtedly careless. Whether I would go so far as to say reckless is borderline but it was careless, inattentive and irresponsible, in my view. That said, once the true nature of things was brought to the attention of the defendant things did happen. Mitigation work and so on was put in place very promptly; reports from very esteemed people and organisations were obtained about the situation and what could be done about it, and things were put right to the extent that they could be. So that has to be given credit.

[12] In terms of whether a profit was made out of the offending directly, the answer has to be no. Long-term the purpose of this overall scheme was no doubt to improve management and the productivity of the farm but that was a longer-term issue involving the recontouring which was not done and, as I understand it, is still to be done. So although it was a business operation there was no direct profit out of what was done.

[13] As always in this sort of offending I think the significant issue is one of deterrence: - that it has to be made clear to people who operate in these environments that the rules are there for a good reason and if the rules are not complied with, then consequences can be significant.

[14] I considered the comparable cases referred to by both Mr Lang and Ms Cameron. As always it is pretty difficult to gain any direct specific help because facts and factors can vary so much, but one can get an overall picture of things.

[15] In reality the parties are not that far apart in terms of what they suggest would be an appropriate start point. Ms Cameron suggests a start point fine overall of something between $50,000 and $60,000, Mr Lang something between $30,000 and

$40,000.

[16] Having regard particularly to the issue of effects, and particularly to the attitude that has been displayed once the seriousness of the situation became apparent, I think that I can take a lower start point than might otherwise be appropriate - and I will take that as being $40,000. I should allow the company full recognition of its previously unblemished record and I will make an allowance of

10 percent for that. I should also make a full allowance for the prompt plea of guilty and the acceptance of responsibility and I will make an allowance of 25 percent for that. So, taking a start point of $40,000 and making those allowances the net total will be $26,000 and I will divide that equally between the four charges.

[17] So the outcome is that the company will be convicted and required to pay a fine of $6500 on each charge. There will be the mandatory order under s342

Resource Management Act 1991 that 90 percent of those fines is to be paid to the Regional Council and there will be an enforcement order in the terms of the draft presented to me by counsel today.

C J Thompson

District Court Judge/Environment Judge