Auckland Council - AKC Environment v Vsn der Poel [2017] NZDC 17201 (2 August 2017)

Last Updated: 9 July 2018

IN THE DISTRICT COURT AT PUKEKOHE

CRI-2017-057-000399

[2017] NZDC 17201

AUCKLAND COUNCIL – AKC ENVIRONMENT

Prosecutor v

WILLIAM VAN DER POEL Defendant

Hearing:	2 August 2017
Appearances:	C Nortje for the Prosecutor B Ravelich for the Defendant
Judgment:	2 August 2017

NOTES OF JUDGE G T WINTER ON SENTENCING

[1] Mr William Van Der Poel is the family member charged with and operating a family owned poultry farm consisting of a bird cage layer chicken flock for the supply of eggs to the wholesale market. The operation consists of four poultry sheds of which only two were being used, at the time relevant to this prosecution. Each shed has a floor area of approximately 756 square metres and is designed to hold approximately 2000 chickens. At the relevant time there were about 1950 chickens in each of the two sheds.

[2] Naturally, with this older style of poultry farm chicken manure accumulates on the concrete floor and below the bird cages. Usually the manure is removed manually with mechanical equipment to push the manure to the end of the shed for pick up and loading onto trucks for off-site disposal.

AUCKLAND COUNCIL – AKC ENVIRONMENT v WILLIAM VAN DER POEL [2017] NZDC 17201 [2

August 2017]

[3] These prosecutions brought under clause 6(1)(a) of Part 2 Auckland Council Property Maintenance and Nuisance Bylaw 2015 provide that a person must not allow any material or thing to be accumulated or stored on any private property under their control in a manner that causes or may cause a nuisance. That bylaw, when read alongside s 239 Local Government Act 2002, sees an offence created where someone is liable on conviction to the penalties set out in s 242(4) who breaches a bylaw made under that part of the Act.

[4] In this case Mr Van Der Poel, the son of the original sole director of the poultry farming company, was at all relevant times a farm manager and in control of the property, so it falls on him to shoulder the burden of the charges concerning the chicken manure accumulated on the property under his control in a manner that would cause a nuisance. This is an offence that carries with it a maximum penalty of a fine not exceeding $20,000.

[5] The nuisance said to be created by this accumulation of chicken manure is that it attracted breeding flies and consequently increased the number of flies at neighbouring properties.

[6] During 2004, the Ministry of Primary Industries, acting under the Animal Product Act 1999, registered a risk management programme for the poultry farm. That described, amongst other things, required standards for vermin and pest control. The implementation of the programme and plans were audited by the Ministry of Primary Industries. That resulted in the poultry farm preparing what can only be considered a planned preventative maintenance list for cleaning of the poultry sheds. That included daily checks of the hens, dead bird removal, rodent bait application and of relevance to the guilty pleas entered by Mr Van Der Poel to these two charges, manure removal every three months.

[7] The family situation concerning the control of management of the poultry business has not been a happy one. I am advised that, as is sometimes common with family businesses, Mr William Van Der Poel’s father found it difficult to relinquish full control of the operation and therefore made it difficult for his son, the defendant,

to run the business efficiently and in a financially viable way. That has been compounded by a lack of capital for the company.

[8] The nub of the prosecution is that because of the storage of manure fly numbers were not being minimised as far as practical due to inadequate fly control measures. The fly population caused an extreme nuisance to neighbours.

[9] In that regard, I have read the victim impact statements. That describes the impact on neighbour lifestyle concerning the inability of neighbours to open windows or doors during heavy fly breeding seasons with the occasions when doors were opened seeing an inundation of flies throughout the household. Practically, the families have had the expense of deploying fly spray and other fly control procedures in their houses, but they were left with the disgusting job of having to sweep up lots of dead flies. They constantly found flies in their food and at times even in their fridge and pantries. Putting it simply, the victims describe a constant battle to keep the flies out. They describe the emotional effect as being the gross feeling that comes with having to share their house with flies, causing stress and frustration by their loss of power and the inability of the Auckland Council to actually stop the situation.

[10] In that regard, having reviewed all of the documents I find the Auckland Council has gone a long way to trying to mediate and mitigate this fly nuisance. There is correspondence available to the Court, for example from 27 November 2012, informing the defendant of fly complaints and reminding him of his obligations to remedy that nuisance. In May of 2014 Environmental Health officers inspected the property due to neighbourly complaints and found a large number of flies present inside and outside the chicken sheds, which they determined caused not only a public health nuisance, but also required them to tell the defendant that he needed to abate the nuisance. There were further complaints during 2015 and further visits and inspections with suggestions for further preventative measures to curb the fly population.

[11] During the period 25 January to 29 January 2016 numerous complaints were received about an increase in the number of flies at neighbouring properties. Again, Environmental Health officers conducted a site visit and found accumulated manure

was stockpiled on the property and that the defendant had delayed removal of manure from the farm. He was accordingly sent a letter dated 29 January and told to put in place fly control measures, which included removing of accumulated chicken manure in the sheds at least twice monthly and not stockpile it on the property. The defendant was clearly told that if these measures were not carried out in a timely and consistent method legal action would be considered.

[12] As a result of numerous complaints, again the property was inspected on 2 June 2016. A similar fly population was encountered and active in and about the sheds and property and again chicken manure was being stockpiled. The defendant was present at that inspection. He advised that the chicken manure would be removed from the chicken sheds five or so days later and from the property approximately seven days later.

[13] As a result of that visit a Health Nuisance Notice was sent requiring abatement of the nuisance. A further inspection on 9 June revealed that the chicken manure had not been removed from the chicken sheds and had not been taken from the property. A copy of a letter detailing that inspection was sent to the defendant and so it was that he now faces the two prosecutions.

[14] In CRN 0100 he is charged that in November 2016 he allowed that chicken manure to accumulate, which caused a nuisance, and similarly in CRN ending 099 for an earlier period in October of 2016 committing a similar breach of the bylaw. He has pleaded guilty to both of those charges. I am grateful to his counsel, the duty lawyer, for taking full instructions from him.

[15] The bylaw and the ability to prosecute is so new that the learned prosecutor in her submission concedes that there is little by way of precedent for sentencing purposes. I too have reviewed the relevant legislation and considered the interrelationship between the Resource Management Act and the effective Nuisance Bylaws. The difficulty with that kind of comparison is it is very frail at the margins of difference between the purposes required for breach of an abatement notice under the RMA involving as they do elements of wilfulness and contravention of an effective Court order and simple bylaw prosecutions for penalties relating to nuisance.

[16] In preparation for the sentencing today, I have had reference to the United Kingdom sentencing guidelines for nuisance and pollution. The guideline suggests that the culpability and harm categories described in their guide are on a sliding scale. The specific suggestions for guiding sentence in the UK are, of course, not analogous with the instant offences before the Court upon which the defendant has pleaded guilty. However, the principles, in my view, are very helpful and guide the approach to sentencing for nuisance offending in New Zealand.

[17] First of all there is a need to establish culpability and harm. Culpability can either be:

• (a) deliberate where the offender has intentionally breached or flagrantly disregarded the law,
  
• (b) reckless where there is actual foresight of wilful blindness to risks of offending, but risks are nevertheless taken,
  
• (c) negligent where offences are committed through acts or omissions which a person exercising reasonable care would not commit, or
  
• (d) low or no culpability offending committed with little or no fault, for example, by genuine accident creating a nuisance.
  

[18] In this case because of the depth of the interaction by the Auckland Council with the defendant I am satisfied that this was culpability at the highest level. Despite visits from environmental and health officers, despite correspondence requesting remedy and abatement there was a pattern of the defendant making some attempts to remove the accumulated manure, but some months later council officers found stockpiled manure again.

[19] In terms of the harm this is difficult to assess on these nuisance prosecutions, particularly here where Madam Prosecutor rightly concedes that there is no proof of risks to public health as a result of the undoubted extreme increase in fly population. It may be wise in future prosecutions for the council to consider providing the Court

with some additional public health information on nuisance offending, since that, clearly, is information required to assess harm.

[20] That said, I am satisfied that the increase in the fly population was noxious, widespread and pervasive with the persistent breaches of cleaning programmes over a long period of time causing an adverse effect on the neighbours quality of life and amenity value. That much, at least, is clear from their victim impact statements.

[21] I have considered the aggravating factors to be a history of non-compliance with warnings by the council, the location of the offending nuisance being nearby to housing, such that fly populations could drift across boundaries and detrimentally affect the lives of folk living nearby, the fact that there were repeated incidents of offending over an extended period of time and the evidence of neighbourly impact.

[22] Against that, I balance out the fact that there are no previous convictions by the defendant, that he has shown a degree of remorse, that he has demonstrated evidence of steps taken to remedy the problem.

[23] In particular, I note today he has supplied the Court evidence of the purchase of machinery to aid in the disposal of manure from the property. I also take into account his otherwise good character and as a special factor reducing the seriousness of the offending and reflecting a personal mitigation I am satisfied that, really, by dint of family hierarchy he has to bear the burden of the prosecution against him.

[24] This is first offending and that must adjudge the scale of the fine that is appropriate. I am satisfied that a starting point for the fine would be $1600 for a first offender. There would need to be deductions because of character and some efforts taken to remedy the problem, which would see the fine reduced to $1000. Thereafter, there would be an equivalent R v Hessell1 discount because of early plea and co- operation leaving an end fine of $750. There would need to be a standard order for costs of $130. It applies to the defendant or anyone else who carries with them an offence into our Court system. That is a concurrent fine across both offences reflecting what is, in effect, an ongoing course of conduct.

1 R v Hessell [2010] NZSC 135

[25] I have given thought to making an emotional harm or reparation payment, but in the circumstances I have decided that that sort of compensation is best left to Civil remedy for breach of the bylaw.

[26] Mr Van Der Poel, you can make arrangements with the registrar to pay the fine and costs.

[27] Counsel, because I have given the sentencing decision on a difficult matter orally and in open Court I reserve the right to perfect the judgment once it has been transcribed.

G T Winter

District Court Judge