Northland Regional Council v Lammers [2015] NZDC 5728 (7 April 2015)

Last Updated: 10 August 2016

IN THE DISTRICT COURT AT WHANGAREI

CRI-2014-088-002462 [2015] NZDC 5728

NORTHLAND REGIONAL COUNCIL

Prosecutor

v

CLIM HENRIKES LAMMERS

_Defendant

Hearing:	7 April 2015
Appearances:	K de Silva for the Prosecutor R J B Fowler QC and C McGuinness for the Defendant
Judgment:	7 April 2015

_{NOTES OF JUDGE C J THOMPSON ON SENTENCING}

[1] Mr Lammers has entered pleas of guilty to two charges laid under the Resource Management Act 1991. First; that on 14 and 15 July he discharged a contaminant, that is sediment, into the Wairoa River and that on the same date he diverted water into that river.

[2] The two charges are intimately related of course. The sediment that would have been discharged was carried in the water that flowed off Mr Lammers’ land (speaking loosely in terms of ownership) into the river through the cuts that he had made in the stopbank.

[3] The stopbank was and is a part of the Hikurangi Swamp scheme which was first constructed in the 1970s and as is recorded in a judgment of Asher J I have been

_{referred to, the goal of the scheme was to reduce both flood frequency and duration}

NORTHLAND REGIONAL COUNCIL v CLIM HENRIKES LAMMERS [2015] NZDC 5728 []

and it was designed to provide flood protection to about 5600 hectares of what he

described as “highly productive agricultural land.”

[4] It was always accepted that the scheme would not be able to contain water in the event of extreme rainfall events when the river flows were in excess of the threshold of the design. The scheme was designed so that at times of heavy rain the water would flood into seven areas of land that are called “pockets” and would be in controlled portions going into those pockets and they would then, later, be pumped out of them by pumping stations back into the river flow.

[5] It was, as I understand it, always accepted that there could well be extreme events that would overtop the capacity of the scheme and it just would not be able to cope.

[6] I understand from the submissions, made very forcefully by Mr Fowler for Mr Lammers, that the owners in the pocket in which Mr Lammers farms, the Te Mata Pocket, regard themselves as disadvantaged because they seem to collect more than their fair share of water. That was indeed the background to the application for judicial review that was dealt with in Asher J’s judgment.

[7] I need to say now that I accept that they may well believe that, and I accept that they may well be right, but I of course am not in a position to decide that. What I can do though is accept that it was Mr Lammers’ subjective belief that he was in a position where his farm was being disadvantaged by the scheme, as it then stood. Whether that was actually so or not, I repeat, I cannot decide.

[8] At the time the Lammers family had two farms owned by a family trust. One was in the Te Mata Pocket. Another farm has since had to be sold under financial pressure and I will return to that shortly.

[9] The short point is that there was a very heavy rain event over the period of

8 to 12 July 2014 and the land which the scheme covered was severely affected by flooding. Aerial inspections by Council staff on 15 and 17 July showed that there were two cuts in the Te Mata Pocket stopbank.

[10] A ground inspection on 23 July showed that the cuts had been repaired - although not adequately as later inspection showed. They were later repaired by the Council and there is an issue perhaps about whether Mr Lammers might or might not be required to pay all or some of that cost.

[11] In a telephone conversation with a Council staff member, Ms Dacre, Mr Lammers was very forthright in acknowledging that he had made the cuts. He said that he had done so on the night of 14 July and that he had returned and increased the size of one of them in the morning of 15 July. He is to be given credit for that frankness which has flowed on to his acceptance of responsibility for these charges.

[12] In terms of the principal issues to be considered in dealing with Resource Management charges and the appropriate penalties for them, they are, first and second, (although often dealt with together) is the environment that was affected and the extent of damage or adverse effects on that environment.

[13] I make it clear that I accept that, as does Ms de Silva for the Council, that any damage that was caused by what Mr Lammers did with these cuts cannot be quantified, but there was certainly a potential that the flow of water through those cuts was going to carry additional sediment downstream and would certainly have the potential to prolong the period of flooding, and thus the damage to pastures and the like, downstream of the cuts.

[14] I repeat that I make no attempt to quantify that, nor does anybody else; it is not possible to say what it might have been. There is an argument that the affect of a cut made upstream in the stopbank system by Mr Brown, whose case I dealt with earlier this morning, might have in some way balanced the effects of that Mr Lammers may have caused.

[15] I have to say I think that is a very fine argument and I do not think that in the end it makes any substantive difference either way to what I regard as an appropriate outcome.

[16] There was one formal victim impact statement provided by the Council from a farmer who operates downstream. His view was that the scheme generally was based on a fairness and equality of effect on the properties that were subject to the scheme. It turns out that that farmer was a member of a group that were involved in the judicial review proceedings I have already referred to, and thus he may not be an entirely objective observer, possibly. Perhaps so, but it is of significance that there are other reports in the press and otherwise, contemporaneous with events, that show that he was far from alone in sharing that view and it is a view that is completely understandable. I take account of what he said, I do not put huge weight on it - but what he says is simply commonsense, frankly.

[17] There was also an effect, as I have already mentioned, on the Whangarei District Council which is the owner and operator of the scheme. The external cost for repairs was said to be of the order of $25,000; no arrangement has yet been made about that, and it may or may not be dealt with in the future. I simply put that aside.

[18] In terms of deliberateness and attitude and attempts to comply; I think from what I have said that it will already be apparent that there is no doubt that Mr Lammers set out to do exactly what he did - in that sense it was deliberate.

[19] He knew what he was doing, he knew that it was not, “permitted,” in terms of the legality of the situation of the Resource Consent and so on. He may have felt some personal justification, perhaps, under the extreme pressure that he was subjected to at the time, but he knew what he was doing was not permitted by the law, in fact was directly contrary to it.

[20] In terms of his attitude; I think I have already dealt with that. He was a man who was under pressure, he saw his farm being badly affected, he was under huge financial pressure (and I will return to that) that pushed him to do what he did, although he knew that it was not justified in terms of law.

[21] He did make some attempts to repair the damage as I have mentioned but that needed to be redone. Still, he should be given some credit for that. He did not make any profit directly out of what was done and he did not intend to do so. What he was

attempting to do was to reduce or minimise the loss that he knew was going to arise if that pasture stayed under water for any length of time, and possible damage to infrastructure and so on.

[22] As it turns out it seems that there was significant pasture damage in the area and it needed to be re-sown later so what he did was not successful. In terms of any previous skirmishes with the law Mr Lammers has had, there is what might be regarded as a poor record of compliance. In general terms he has been the subject of

11 infringement notices and three abatement notices over relatively recent years and

I will return to what I regard is the significance of that shortly.

[23] One of the significant factors is always deterrence in dealing with these offences. I accept that insofar as personal deterrence is concerned Mr Lammers, one hopes, has realised that attempts of this kind, no matter what justification might be thought to exist under the pressure of the moment, is simply not worthwhile and will be followed by consequences should it ever be repeated. I do not think I need to impose anything more than an appropriate penalty to emphasise that to him.

[24] General deterrence is an issue that I am conscious of. I think it needs to be made very clear to people that they cannot attempt to shift their troubles onto others without consequence, and without significant response, if such events should happen again. It can be probably taken for granted that the penalties will be more severe than I intend to impose on Mr Lammers; or that I imposed on Mr Brown earlier today.

[25] In terms of figures, the maximum penalties available for these two charges for an individual are $300,000 in respect of each charge so there is a very high maximum - and that reflects the significance of the offending as set by the legislature.

[26] Ms de Silva has suggested that I should take a start point for those charges in the region of $130,000 on the basis that the cuts were more extensive than those made by Mr Brown and that the potential damage could therefore be more significant.

[27] I thought about that and I think that I need not go anywhere near that far. Mr Brown had a separate penalty imposed for his breach of the abatement notice which was a very express warning that he was not to do as he decided to do. That does not apply to Mr Lammers and that issue can be put aside.

[28] I think that I should take a start point similar to Mr Brown of $60,000 in respect of the charges. I think that, were I tempted to impose an uplift to reflect his poor compliance record, that can be offset and probably more than offset by Mr Lammers’ parlous financial position.

[29] As I have already mentioned he is under considerable pressure. He is operating, as I understand from what was said by by Mr McGuinness and Mr Fowler, effectively under a form of receivership. One of the farms has had to be sold under pressure from the bank, and was sold in the end at what is regarded as an undervalue, simply to try to clear some of his very significant debt.

[30] I think that any uplift that I might otherwise impose can be more than offset by taking account of his very tight, to put it mildly, financial position. He should be given full credit, as is acknowledged, for his guilty plea and I will give him that full credit of 25 percent.

[31] The end result is that I think that the appropriate outcome is that on each of the charges he will be fined $22,500. There will be an order under s 342 of the Resource Management Act that 90 percent of those fines is to be paid to the Council. In terms of payment of the fines; his financial position can also be taken account of in any arrangements made with the Registrar. He will be required to pay solicitor’s fees on the scale in the Costs in Criminal Cases Act 1967 and Regulations, and there will be an order for Court Costs for the two charges to which he has pleaded guilty.

C J Thompson

District Court Judge/Environment Judge