Waikato Regional Council v Trinity Lands Limited [2020] NZDC 24380 (21 December 2020)

Last Updated: 5 January 2021

IN THE DISTRICT COURT AT TOKOROA I TE KŌTI-Ā-ROHE KI TOKOROA

CRI-2020-077-000333 VIA AVL [2020] NZDC 24380

WAIKATO REGIONAL COUNCIL Prosecutor

v

TRINITY LANDS LIMITED and ANDREW MACK ARCHER and DIRK ENGELBRECHT Defendants

Hearing:	9 September 2020
Appearances:	AL McConachy for the prosecutor M Hammond for Trinity Lands Limited and Andrew Archer N Beadle for Dirk Engelbrecht
Judgment:	21 December 2020

SENTENCE DECISION OF JUDGE MJL DICKEY

Introduction

[1] The defendants have pleaded guilty to one charge each that on 6 October 2019, effluent was discharged in circumstances where it may enter water at 488 State Highway 1, Tirau (the property). That is in contravention of s 15(1)(b) of the Resource Management Act 1991 (RMA).

WAIKATO REGIONAL COUNCIL v TRINITY LANDS LIMITED [2020] NZDC 24380 [21 December 2020]

[2] The maximum penalty for the offence against Trinity Lands is a fine not exceeding $600,000. The maximum penalty for the offence against Messrs Archer and Engelbrecht is a fine not exceeding $300,000 and up to two years imprisonment. The issues at sentencing were the appropriate starting point for a fine against the defendants. The prosecutor seeks starting points of around $65,000 for each of Messrs Archer and Engelbrecht, and a starting point of around $80,000 for the company. Mr Beadle for Mr Engelbrecht proposes a starting point of $50,000. Mr Hammond for Trinity Lands and Mr Archer proposes starting points of $60,000 and $40,000 respectively.

[3] Messrs Archer and Engelbrecht have also applied for a discharge without conviction.

Regulatory framework1

[4] The property is within the Waikato Region and is subject to the terms and conditions of the Waikato Regional Plan. The Farm relies upon permitted activity rule

3.5.5.1 in the Plan, which allows for the application of farm animal effluent onto land in certain circumstances.

[5] Farm animal effluent is a contaminant pursuant to s 2 of the RMA. There are no national environmental standards, other regulations, resource consents or rules in a regional plan or proposed regional plan that expressly allow for the discharge.

Background2

[6] Trinity Lands owns and operates 20 dairy farms. The dairy farm of interest in this matter is known as the Ronald Lion farm.

[7] Trinity Lands’ executive team includes a General Manager of Dairy Farms, Andrew Archer.

1 Agreed Summary of Facts, paragraphs 13-16.

2 Agreed Summary of Facts, paragraphs 17-42.

Management of the property3

[8] Mr Archer, as the General Manager of Dairy Farms, oversees all 20 dairy farms owned and operated by Trinity Lands. He is responsible for everything from the employment of the contract milkers for all farms, farm infrastructure including effluent infrastructure, cow herd numbers, providing supplement feed, and animal welfare.

[9] In addition, on approval of the forecasted budget, Mr Archer has the delegated authority for all financial decision-making for the day to day operation and improvements of the farming business at this property.

[10] Mr Dirk Engelbrecht, also known as Kobus Engelbrecht has been a contract milker for Trinity Lands since 1 June 2016. Under the current Contract Milking Agreement, Trinity Lands has contracted Mr Engelbrecht and Mrs Suzette Engelbrecht to manage the farm from 1 June 2019 for a period of two years. Mr Engelbrecht is responsible for the day to day management of the farm including herd and effluent management.

The effluent system4

[11] During the 2018/2019 season, the farm effluent system consisted of an unlined effluent pond, to which effluent was gravity fed directly from the cowshed. From there, an irrigator pump, suspended on floats within the pond, was used to pump the effluent to the travelling irrigator.

[12] Around April 2019, the company commenced the construction of a new effluent system on the property, incorporating a new lined effluent pond, sump and weeping wall.

[13] The lined effluent pond was completed by 20 May 2019 with a total working capacity of 2,303m3. The new sump was installed by the end of June, ready for the existing irrigator pump to be placed into the sump on 2 July 2019. The sump included

3 Agreed Summary of Facts, paragraphs 26-31.

4 Agreed Summary of Facts, paragraphs 32-33.

a float system providing the ability to automatically operate the irrigator pump based on the sump levels. The reported working volume of the sump is 27,000 litres.

[14] To enable the effluent to be gravity fed from the cowshed to the weeping wall, the old effluent pond required decommissioning, before becoming the site for the weeping wall. This was not commenced until the milking herd had been dried off in May 2019. Soon after the decommissioning of the pond, the combination of the wet soils from the old pond and the weather meant the construction of the weeping wall was delayed.

[15] At this time, the new effluent pond remained isolated from the sump due to no pipework having been installed to connect them.

[16] At the time of the discharge incident the operational effluent system only consisted of effluent gravity fed from the cowshed to the new sump, which was then pumped to the travelling irrigator. The sump had the capacity to hold approximately one day’s worth of effluent storage. The pump was set up to operate on a float system to help ensure the sump would not overflow. In order to manage this effectively, it required the irrigator to be monitored and moved regularly so there was always sufficient, appropriate land for an irrigator to complete a run whenever the high-level float was activated.

[17] Mr Archer expected Mr Engelbrecht to manage the effluent from the sump and make sure the sump was emptied daily.

The offending5

[18] On 6 October 2019, at around 1.30pm, the Council received a report from a member of the public advising of a green stream flowing into the Pokaiwhenua Stream (Stream). Being unable to access the Stream, compliance inspections were conducted at the Trinity Lands’ properties bordering the Stream.

5 Agreed Summary of Facts, paragraphs 43-52.

[19] On arrival at the property, Council officers observed the irrigator located in the paddock alongside the access road running through the Trinity Lands’ properties. Around the irrigator there were large dark rings of effluent and ponding on the surface of the pasture. The dark rings were approximately ten metres by ten metres.

[20] On closer inspection, Council officers noted that the soil was very wet and had been pugged recently. There was a strong dairy effluent odour present and obvious effluent accumulation on top of the soil. Council staff followed the effluent flow path along the sloped paddock towards a natural swale and down the slope to a nearby tributary. There was clear pugging and an accumulation of effluent and water in the holes visible down the length of the natural swale.

[21] During the inspection, the irrigator turned on and ran for between fifteen and twenty minutes. It remained stationary and its arms failed to turn for the period of operation. The effluent was observed pouring out the end of the nozzles with no fanning or distribution. The effluent accumulated on the ground prior to flowing down the natural swale towards the ponded tributary.

[22] Council officers noted that the irrigator was set on the slowest speed, which produces the highest effluent application rate, and that the travelling irrigator was in poor condition with the bearings of one of its rear wheels appearing to have collapsed.

[23] During the inspection, Mr Engelbrecht acknowledged the dark patches were the result of effluent solids accumulation when pumping, and that he had to irrigate in areas he would not normally irrigate due to soil saturation. He explained that this was due to the wet weather and minimal storage with only the sump available.

[24] Samples were collected from five different locations including from the ponding below the irrigator, partway down the natural swale, at the bottom of the natural swale, where the effluent entered the tributary and at the outflow point where the ponded tributary flows through the culvert.

Investigation6

[25] Mr Engelbrecht explained that sometime between Saturday (5 October) and Sunday morning he noticed silt on the ground at the location of the irrigator, and as a result he uncoupled the effluent pipeline from the irrigator and manually removed any remaining silt from the irrigator and the end of the pipeline to avoid blockages occurring. However, he did not move or inspect the irrigator until Sunday afternoon, claiming to have observed from a distance the irrigator operating correctly within that time.

[26] Mr Engelbrecht confirmed the irrigator had operated on the morning of 6 October, but could not confirm the time. The effluent contamination was observed entering the Pokaiwhenua Stream at 12.45pm. That same afternoon, around 3.00pm, Mr Engelbrecht noticed the irrigator had silted up again. He removed a section of the drag hose and re-connected the remaining pipeline to the irrigator before returning to the cow shed.

[27] Mr Engelbrecht then washed down the cow shed after a further milking of the colostrum cows, causing the irrigator to start up again. That was what was observed by Council officers. When he observed the irrigator standing still, Mr Engelbrecht returned to the sump to manually turn off the irrigator pump.

[28] The following day Mr Engelbrecht and Mr Archer examined the effluent system, and noticed the sump was a third full of silt. Mr Archer arranged for a temporary pipe to be placed between the sump and the new effluent pond for storage purposes, and to enable deferred irrigation. He further arranged for the sump to be cleaned out.

[29] On 8 October 2019, Mr Archer emailed a report to the Council regarding the over-application of effluent. The report accepted that Trinity Lands had over-applied effluent in two spots where the travelling irrigator was stopped due to the rotating arm becoming blocked. The report outlined that Mr Archer had reviewed the irrigator’s use. He conceded that he could have plumbed the operating system directly to the

6 Agreed Summary of Facts paragraphs 53-65.

pond as a temporary measure, but had not considered that as they were in the midst of finishing the new effluent system, and he was relying on Mr Engelbrecht to take extra care while making the transition.

[30] Mr Engelbrecht was formally interviewed on 12 February 2020. Having provided an overview of the effluent setup, he provided the following explanation:7

• Mr Archer directed him to manager [sic] the sump. It was not for him to hook up the pond, that was Mr Archer’s project and it is their physical property.
  
• The sump was sufficient to manage effluent through to September. However, with an increase of milking cows producing more effluent and A1 replacement cows being unfamiliar with the farm and milking shed, this created extra work and he was working 14-15 hour days. This meant he did not have the time to watch the sump to the same extent. He was still checking but didn’t spend the time he could have and would have previously spent there to stand and watch to make sure the sump emptied.
  
• Knew it was quite a wet paddock and close to a water stream, but it wasn’t winter rain anymore, so thought it would be alright. [sic]
  
• The incident was a result of a couple of factors including:
  
  • Milking getting longer, there was more effluent, and the irrigator needed to run longer;
    
  • Effluent being managed by a sump only system with limited effluent storage;
    
  • Silt build up in the sump had worn the pump impeller, but he didn’t notice this until after the incident.
    
• Understood how critical it was to manage their system.
• New effluent paddock was further from pump than previous paddock where it was working fine.
  
• There was always some effluent silt on the ground when it gets to the bottom of the sump, but not to the extent on that day.
  
• He was not responsible for the servicing of the irrigator, as this was done by South Waikato Water Solutions (“SWWS”). He felt the wheel bearing should have been replaced and the rain gun was not working right. Acknowledging he had not specifically called SWWS to service the irrigator at that point, but they had serviced it in July.
  

7 Agreed Summary of Facts, paragraph 62.

• Mr Engelbrecht said it was an unfortunate accident and acknowledged that part maybe due to his management as he should have noticed this earlier, but he said it wasn’t a problem earlier.
  

[31] South Waikato Water Solutions (SWWS) reported that, among others:8

• The irrigator was last inspected on 18 July 2019, when refitting the irrigator gun. This would have included a ‘once-over’ to ensure the equipment was in reasonable order, and no concerns were identified.
  
• Mr Engelbrecht had not requested assistance with the irrigator, or mentioned any concerns.
  

[32] Mr Archer was formally interviewed on 12 February 2020. He confirmed the details of the effluent system already outlined, and explained:9

• Mr Engelbrecht is responsible for the effluent management and was told to keep a good eye on the sump and empty the sump completely, so it didn’t build up.
  
• Mr Engelbrecht had the authority and contact information for SWWS if any irrigator issues arose. He also questioned why Mr Engelbrecht didn’t contact him earlier if there was a problem, as he is always available for these matters.
  
• Discussion groups held every three months which cover some compliance matters and in June/July they hold focused compliance sessions for all staff.
  
• Inspected the irrigator the following day and found it was not in great working order. The gun had slop in it, which can cause it to jam and stall, and the wheel bearings were in poor condition.
  
• The lack of pressure due to unknown pump wear, the mechanism in the rain gun not operating properly and poor maintenance was the likely cause of the incident, commenting that this is a potential fault in these irrigators.
  
• In hindsight, the sump was deficient to manage the effluent storage and he should have put a temporary line into the pond.
  
• Designed effluent system himself.
  
• When shown video of green stream and a map of the tributaries in the area, he said it was a logical conclusion it has come from a Trinity Lands property.
  

8 Agreed Summary of Facts, paragraph 63.

9 Agreed Summary of Facts, paragraph 64.

[33] The CEO of Trinity Lands was formally spoken to on 2 March 2020. In explanation, he stated:10

• The poor maintenance and lack of monitoring is not up to his expectation and could have contributed to the incident.
  
• Acknowledged the pump impeller wear would not have occurred quickly, and the deterioration should have been picked u through monitoring of the irrigator.
  
• He was not aware of the transitional effluent system, and believed the sump-only system was not sufficient, and the pond should have been hooked up.
  
• Trinity Lands has made significant investment into upgrading their effluent system between 2013 and 2020. Human error is still one of the biggest risks.
  

Sentencing principles

[34] Counsel agreed that the sentencing principles for offences under the Act are well established. A helpful summary of the matters to which the Court should have regard, and that have been identified as relevant to offending under the Act, are set out by the High Court in Thurston v Manawatu-Wanganui Regional Council.11 They include the offender’s culpability; any infrastructural or other precautions taken to prevent discharges; the vulnerability or ecological importance of the affected environment; the extent of the environmental damage, including any lasting or irreversible harm, and whether it was of a continuing nature or occurred over an extended period of time;12 deterrence; the offender’s capacity to pay a fine; disregard for abatement notices or Council requirements; cooperation and guilty pleas.

Environmental effects13

[35] All samples taken on 6 October 2019 revealed high levels of contaminants, consistent with farm (dairy) animal effluent.

10 Agreed Summary of Facts, paragraph 65.

11 Thurston v Manawatu Wanganui Regional Council, HC Palmerston North, CRI-2009-454-24, -25,

- 27, 27 August 2010 at [41].

12 Where no specific lasting harm can be identified, an allowance for harm may be made on the assumption that any given offence contributes to the cumulative effect of pollution generally.

13 Agreed Summary of Facts paragraphs 66-69 and reports from Robert James Dragten ‘Land Treatment of Farm Dairy Effluent’ dated 11 April 2018 (Appendix G); report from William Nisbet Vant ‘Potential Adverse Effects Of Dairy Shed Effluent In Rivers In The Waikato Region’ dated 25 July 2016 (Appendix H).

[36] The tributary flows through a couple of ponded areas and culverts before flowing freely towards the Pokaiwhenua Stream. The approximate distance between the point of discharge into the tributary and the stream is 1.4km.

[37] The Pokaiwhenua Stream is classed as contact recreation, fishery and indigenous fishery under the Plan. The Ministry for the Environment ‘Safe Recreational Water Contact Use Guideline for E.coli’ is <550 cfu/100ml. Although there is some distance between the sample locations and the Pokaiwhenua Stream, the samples in the tributary are between 180 and 29,090 times higher than the recommended guidelines.

[38] The sample results shown in the Agreed Summary of Facts were as follows:

Table 1 – Sample Result Summary

Date	Sample name and location	Faecal result cfu/100mL	E.Coli result cfu/100mL
6 Oct	Ponding – Near Irrigator	90,000,000	90,000,000
6 Oct	Ponding 2 – Ponding partway down natural swale	57,000,000	57,000,000
6 Oct	Ponding 3 – Ponding at bottom of natural swale near tributary	55,000,000	55,000,000
6 Oct	Discharge 1 – Point of entry to tributary	16,000,000	16,000,000
6 Oct	Discharge 2 – Outflow by culvert	120,000	100,000

[39] Ms McConachy submitted that the offending is serious, as evidenced by the high sampling results. She submitted that effluent was repeatedly being discharged direct to the tributary and flowing into the Pokaiwhenua Stream. She noted that the concentration and volume of effluent was such that the stream was observed by a member of the public to be “green”.

[40] Mr Hammond for the company and Mr Archer submitted that there was no proof of actual harm to any species or the environment in or beyond the confines of the Farm. Mr Beadle for Mr Englebrecht echoed that submission, and added that the evidence that the Pokaiwhenua Stream was contaminated by the discharge is limited to Council’s images and video footage, and does not include scientific evidence of the levels of contaminant in the Pokaiwhenua Stream; further, that the evidence is limited to within approximately 180m of the point of discharge onto land, by which time the

level of contamination had rapidly reduced; and that there was no evidence of any significant damage to the environment.

[41] I do not accept counsel’s minimisation of the effects of these types of effluent discharge. The Court is often called upon to address such submissions. The comments of the Court in West Coast Regional Council v Potae & van der Poel Limited14 are helpful, and I adopt them:

Both counsel referred, without elaboration, to the short term effects of effluent discharge; a submission which is frequently made in this type of offending. ... There will be effects that persist well after the visible traces of effluent are washed away. In Plateau the Court observed that the nature of this type of offending is such that harm done to the environment cannot be quantified in any empirical way; the effects on watercourses arising from pollutants derived from the dairy industry are insidious, cumulative and serious.

[42] The effects of farm dairy effluent on water quality are well known. Dairy effluent contains a range of contaminants that can have an adverse effect on surface water quality. The contaminants include biochemical oxygen demand, suspended solids, pathogenic (disease-causing) micro-organisms such as bacteria and viruses, and nutrients such as nitrogen in the form of ammonia and phosphorous.15

[43] Ponding and the saturation of soil with effluent creates hydraulic conditions that pose a high risk of the direct loss of untreated or partially treated effluent to groundwater. Research has shown the presence of “green” water at a depth of 1m on soil cores where dairy effluent has been ponded on the soil surface. That may result in pathogenic micro-organisms directly contaminating groundwater, posing a risk for groundwater drinking quality.16

[44] I determine that the adverse effects on the environment from the offending are moderately serious.

14 West Coast Regional Council v Potae & van der Poel Limited DC Greymouth CRI-2009-009-17910, 20 April 2010 at [49].

15 Agreed Summary of Facts, Appendix G, Report of RJ Dragten, paragraph 3.

16 Agreed Summary of Facts, Appendix G, Report of RJ Dragten, paragraphs 14 and 15.

Culpability

[45] Ms McConachy referred to the different levels of seriousness set out in Waikato Regional Council v GA & BG Chick Ltd,17 which provides some assistance in assessing and distinguishing between different levels of offending relating to unlawful discharges of dairy farm effluent Three levels are described: least serious, moderately serious and more than moderately serious. They reflect intention, whether the offending was one off or recurring, whether it demonstrated carelessness or systemic failures and the extent of adverse effects. Ms McConachy submitted the Chick levels remain relevant but the corresponding level of penalty must now be higher than the levels suggested in that case.

[46] Ms McConachy submitted that the offending involved careless management of effluent and ignorance of the relevant rules by all parties. She submitted that the existing infrastructure was inadequate at the time of the offending and while the effluent management system was in the process of being upgraded. She also pointed to there being no documented farm protocols or procedures in respect of the operation and management of the effluent system.

[47] Ms McConachy highlighted Mr Archer’s concession that he could have plumbed the operating system directly to the pond as a temporary measure and his acknowledgement that the sump was deficient to manage the effluent storage.

[48] Counsel also highlighted Mr Engelbrecht’s admission that he was careless in failing to monitor the sump level and failing to manage the travelling irrigator; he had not requested assistance with the irrigator or mentioned any concerns regarding the gun mechanism, the bearings and the seals.

[49] Ms McConachy addressed the culpability of each defendant in some detail.

17 Waikato Regional Council v GA & BG Chick Ltd (2007) 14 ELRNZ 291 (DC)

Mr Engelbrecht

[50] Ms McConachy submitted that his culpability falls within the middle of Level 2 of Chick. She submitted that his behaviour should be categorised as highly careless, and that the offending demonstrates ignorance of the relevant rules. In summary:

• Mr Engelbrecht is responsible for the day-to-day management of the Farm.
  
• He is contracted to employ sufficient labour to operate the Farm, including herd and effluent management.
  
• The discharges were highly likely to continue occurring had a member of the public not notified the Council.
  
• He observed that the travelling irrigator was having mechanical issues but chose not to service it. The offending therefore was entirely foreseeable.
  

[51] Ms McConachy acknowledged that there was also a system failure that contributed to the offending, which is not a factor that Mr Engelbrecht could control.

[52] Mr Beadle submitted that Mr Engelbrecht’s level of culpability is low, as in respect of his involvement the event was an isolated incident arising from a systemic failure, and not due to a failure in his own management of the effluent system. That is as against the prosecutor’s assessment of his culpability as being highly careless. In addition, prolonged wet conditions and increased shed effluent production contributed to the event. Mr Beadle submitted the event was not deliberate from the perspective of any of the defendants, nor did it demonstrate ignorance of the relevant rules. As to the management system, he submitted this was a discharge following a mechanical failure in circumstances where:

• The company was required to provide and maintain any effluent system.
  
• The company implemented an interim effluent system whilst in the process of upgrading its previous system.
  
• The constraints of the interim system were such that, even when managed properly it created significant pressures on Mr Engelbrecht and,

unbeknownst to him, the mechanical components of the system. In particular, the only effluent storage was the sump; because of storage and the limitations Mr Engelbrecht was required to irrigate throughout each day, every day, there was no contingency in the event that effluent could not be pumped from the sump.

[53] Mr Beadle submitted that those constraints created extreme conditions in which the system’s machinery operated, and were the primary cause of the effluent pump failing. He submitted the failure was unforeseeable.

[54] He also submitted that Mr Engelbrecht had previously managed and operated effluent without any issue prior to the interim effluent system’s installation. With the introduction of the interim effluent system, Mr Engelbrecht did, because he was required to, change his practices to accommodate the need to manage and operate a significantly more demanding system. Up to and including the time of the offending, Mr Engelbrecht’s practice was to monitor and observe the irrigator operating from time to time. Mr Beadle submitted that it was not possible nor reasonable to require him to do so for the entire duration of the irrigator’s operation. This is because the volumes to be irrigated required irrigation all day, every day, in addition to the other tasks to which he was required to attend. Mr Archer told the prosecutor that he relied on Mr Engelbrecht to empty the sump daily. However, Mr Engelbrecht said he was unaware of that expectation, which in any event was wholly impractical given the time and resources available.

[55] Mr Beadle submitted that, following the offending, the company fast-tracked completion of its effluent system upgrade. The upgraded system has largely reduced the difficulties Mr Engelbrecht previously faced when operating the interim effluent system. There is now sufficient storage to contain more than one day’s worth of effluent so he has back up storage he did not have before.

[56] It is important that all those operating and managing effluent management disposal systems take their responsibilities seriously. The effects on the environment from effluent discharges are well established. Mr Engelbrecht’s responsibilities with regard to managing the effluent system on a day-to-day basis are clear and outlined in

the contract milking agreement. However, what is also clear is that the system he came to know and operate was changed by the company. While it was in the course of change an interim disposal system was put in place that required far greater attention to both monitoring of irrigation and monitoring and maintenance of equipment. It is not entirely appropriate to attribute all responsibility for the operation and management of that interim effluent system to Mr Engelbrecht. I take note of the fact that he could have advised Mr Archer at any time of his concerns, and also that he had recourse to SSWS to assist with irrigator and sump maintenance.

[57] I find that, ultimately, the discharge occurred as a result of the ‘interim system’ failing – in the sense that the equipment silted up and caused the irrigator to stop moving. Mr Engelbrecht could have taken more care to ensure the system was coping with the changed demands placed on it, but I acknowledge that the changed system was placing greater demands on him too – which meant he was not as observant of issues arising as he might otherwise have been. I place his culpability within Level 1 and 2 of Chick.

Mr Archer

[58] Ms McConachy submitted that Mr Archer’s culpability falls within the middle of Level 2 of Chick. She submitted that his behaviour should be categorised as careless, and that the offending can be classed as comprising operational and management failures. She submitted that the infrastructure in place during the upgrade was inadequate to manage effluent. The offending also demonstrated ignorance of the relevant rules. In support of that submission, she submitted:

• The offending was entirely foreseeable. Mr Archer conceded that there were steps he could have taken to prevent the offending, such as plumbing the operating system directly to the pond as a temporary measure;
  
• Mr Archer is the general manager of dairy farms for the company, overseeing their 20 dairy farms. He was responsible for the improvements to the farm’s infrastructure and directions given to staff, including Mr Engelbrecht.

• He made the decision to commence works on upgrading the effluent system coming into winter without an adequate contingency plan being put in place for the management of effluent if works were delayed.
  
  • The discharges were highly likely to continue occurring had a member of the public not notified the Council.
    

[59] For Mr Archer, Mr Hammond maintained that his level of fault was neither deliberate nor reckless, and can appropriately be assessed as a careless one-off oversight. He submitted that, had Mr Archer been aware that there were any problems with the direct application, he would have directed Mr Engelbrecht to put the effluent directly into the pond. Mr Hammond stated that Mr Archer and Mr Engelbrecht each take responsibility for their respective roles in the offending. He said they have done this by their contrite and willing interviews, their acceptance of the Summary of Facts and their early guilty pleas. As context for the submissions that followed, he said there was no attempt to apportion blame by one or the other, but that some factual context is necessary. He submitted:

• The new pond had been completed in April, and with very dry conditions maintained at the end of the milking season, Mr Archer saw the opportunity to completely remove the old pond – this was a large undertaking.
  
• He arranged to bund the site while the pond was being decommissioned and excavated. Once that was complete the weeping wall was ready to be sited and poured and the bund was removed.
  
• He accepts that he could have put in place a contingency to irrigating directly on the paddock, that is he could have put a temporary by-pass line directly into the pond from the sump. His reason for not doing so was that they were so close to getting the system fully operational that he didn’t consider that as an option. That is because the permanent line to the pond was going to be wrapped around the weeping wall, and he only needed one week of fine weather to install it.

• He fully expected that Mr Engelbrecht was applying effluent in an environmentally safe manner, and that if he had had any problems he would contact Mr Archer or SWWS.
  
  • He expected that the irrigator would be maintained in good working order; the sump would be de-sludged to maintain its pumping ability (the effluent vacuum tank was on the farm in May-June, and was an option to clear the sump); the effluent would have been pumped directly to the pond if needed as the pond was complete; the company has a mobile back-up pumping system that could be used to empty the sump if the pump failed.
    
  • Mr Engelbrecht had received instructions on effluent discharge management – he had been part of the group compliance training days; the company has a wall chart on the set up and operation of travelling irrigators, and when he began, Mr Archer interviewed Mr Engelbrecht on his knowledge of effluent management.
    

[60] Finally, reference was made to relevant aspects from Mr Engelbrecht’s interviews as follows:

• Mr Engelbrecht had the responsibility for managing the effluent disposal system, as set out in the contract milking agreement.
  
• At the time of the offending, Mr Engelbrecht was working extensive hours, which meant he did not have time to watch the sump to the same extent as he would have otherwise had. He was aware that the paddock in which the spreader was operating was quite wet and close to a water system.
  
• He understood how critical it was to manage the system.
  
• The irrigator was not being maintained in good working order despite Mr Engelbrecht having access to professionals to fix the irrigator.
  
• Mr Engelbrecht did not come to Mr Archer requesting assistance with the irrigator.

[61] The prosecutor describes Mr Archer’s behaviour as careless. Mr Hammond categorises it as a careless one-off oversight.

[62] It is to be remembered that the company, through Mr Archer, initiated the construction of a new effluent system for the property in April 2019 as part of its planned upgrade across a number of its properties. There were no particular compliance issues leading to this initiative save that the Council had previously raised concerns about sealing of the effluent pond and the feed/standoff pad.18

[63] It is clear that, while the new pond was completed by May 2019 and a new sump installed by the end of June, the previous system by which effluent was managed on the farm was not operational. At the time of the offending, the effluent system only consisted of effluent gravity-fed from the cow shed to the new sump, which was then pumped to the travelling irrigator. The sump had the capacity to hold approximately one day’s worth of effluent storage. That is to be contrasted with the previous system that operated with an unlined effluent pond, but which, I infer, had capacity to store effluent so that irrigation was not required every day.

[64] Despite there being a significant change in the way in which effluent management was undertaken, Mr Archer expected Mr Engelbrecht to manage the effluent from the sump and make sure it was emptied daily. Mr Archer stated that the discharge occurred because Mr Engelbrecht had not properly maintained the irrigator and sump, although it is acknowledged that Mr Archer could have installed a suitable contingency.

[65] While I acknowledge that Mr Engelbrecht could have taken steps to more regularly check the state of the irrigator and the sump, I do not accept that he should bear the lion’s share of responsibility for what occurred. The fact remains that the effluent management system was undergoing significant change, and for a period of time the existing system was decommissioned and a new approach to effluent management required. It was more labour intensive and placed greater demands on equipment than the previous system. I find that Mr Archer should have exercised more care in the way in which he programmed the replacement of the effluent management

18 Summary of Facts, paragraphs 22 & 23.

system, and in the way in which he expected effluent discharges to be managed whilst the existing system was decommissioned and the new system installed. I regard the failures as both management and operational failures, for which all defendants bear responsibility. I place Mr Archer’s culpability within Level 1 and 2 of Chick.

Trinity Lands

[66] Ms McConachy submitted that the company’s offending falls within the middle of Level 2 of Chick. She submitted that the company’s behaviour should be categorised as careless. There were operational and management failures on the farm. The infrastructure in place during the upgrade was inadequate to manage effluent. As landowner, the company is responsible for the offending that occurred on the farm. In support of her submissions, she pointed to:

• The offending was entirely foreseeable due to the reasons outlined in respect of Mr Archer and Mr Engelbrecht.
  
• The company is responsible for the actions of Mr Archer and Mr Engelbrecht. The offending resulted from operational and management failures at the farm.
  
• The company faces a higher maximum penalty than the individuals.
  
• The discharges were highly likely to continue occurring had a member of the public not notified the Council.
  

[67] For Trinity, Mr Hammond submitted that the offending falls in the lower end of Level 2 of Chick. He described the offending as moderately serious. Mr Hammond outlined that over the last nine years, under Mr Archer’s supervision, Trinity has substantially upgraded permanent reticulation to increase areas on most farms; that this farm has gone from less than 20 irrigable hectares to 40 irrigable hectares.

[68] Further, Mr Hammond submitted that Trinity Lands has invested more than $5 million in effluent system upgrades, transitioning 16 dairy farms to a new effluent system. It has also built 16 new lined ponds and 12 large concrete weeping walls for solids separation.

[69] In all the circumstances, I find the company to have been careless insofar as it must bear the responsibility for the acts of its employees. Further, I note that at the time of the offending the company did not have in place documented farm protocols or procedures in respect of the operation and management of the effluent system. I place its culpability between Levels 1 and 2 of Chick.

Starting point

[70] I am required to take into account the general desirability of consistency with appropriate sentencing levels in respect of similar offending, among others. Counsel cited a number of cases in support of their respective submissions.

[71] Ms McConachy outlined the increasing concern about the incidents of dairy effluent offending, and the need for deterrence. She pointed to the recent comments made by the Court in Nagra Farms19 to the effect that the starting points typically adopted for dairy effluent offending need to be elevated to better relate to the maximum penalty available.

[72] Further, Ms McConachy submitted that the High Court in Calford20 observed that, in fixing the penalty for various defendants that are charged with the same offending, it is not appropriate to simply identify an overall penalty for the offending and then divide it between the defendants. This is not a case where charges were laid against both corporate entities that carry out the farming business and the shareholder/directors who actually undertake the farming work and manage the business. Mr Archer and Mr Engelbrecht are not involved in the ownership of Trinity Lands. Any fines imposed will come out of different pockets. I was also referred to Trent v Canterbury Regional Council21 where the Court held that a fine that is appropriate for an individual defendant is not to be reduced simply because other offenders were involved or because a corporate entity was also involved.

19 Waikato Regional Council v Nagra Farms Limited & Singh [2019] NZDC 2382, paragraphs [79]- [80].

20 Calford Holdings Ltd v Waikato Regional Council [2009] NZHC 616; [2009] NZRMA 563 (HC), paragraph [34].

21 Trent v Canterbury Regional Council [2020] NZHC 767, paragraph [49]-[50].

[73] Ms McConachy referred me to a number of cases in support of her suggested starting point of $65,000 for each of Mr Archer and Mr Engelbrecht and $80,000 for Trinity Lands.22 The cases covered a range of starting points, from $55,000 to

$85,000. Mr Hammond also cited a number of cases in support of his submission as to starting point.23 The range of starting points in the cases cited by Mr Hammond was between $9,000 and $70,000. He argued that a starting point for the company of

$60,000 is appropriate, and for Mr Archer a starting point of $40,000.

[74] Mr Beadle addressed the cases cited by Ms McConachy. In relation to an appropriate starting point, he submitted that the Court should adopt a similar view to the Court in Watt,24 which adopted a starting point of $35,000 for the sharemilker and

$60,000 for the farm owner in respect of a discharge which occurred following a failed coupling on a travelling irrigator. He submitted that a starting point of $50,000 for Mr Engelbrecht is appropriate given the increased emphasis on deterrence since Watt was decided. Mr Beadle referred to other cases which he submitted were relevant.25 The additional cases cited by Mr Beadle were largely in support of Mr Engelbrecht’s application for discharge.

[75] None of the cases I was referred to are on all fours with this case. However, certain of them involved a combination of management and infrastructure failings, and to that end are of assistance. In DJK Limited26 the offending fell within the upper level of Level 2 of Chick, with the Court finding that there were management (oversight of staff) and infrastructure (insufficient length of hosing) issues – a starting point of

22 Bay of Plenty Regional Council v DJK Limited [2020] NZDC 7710, Waikato Regional Council v Were Te Kumi Ltd [2019] NZDC 12580; Waikato Regional Council v Graze Limited, [2019] NZDC 15963, Watt v Southland Regional Council [2012] NZHC 3062, Waikato Regional Council v Rymanda Farms Limited [2016] NZDC 15056, Waikato Regional Council v Blacker, [2018] NZDC 16180 and Waikato Regional Council v H & S Chisholm Farms Limited [2018] NZDC 2594.

23 Bay of Plenty Regional Council v DJK Limited [2020] NZDC 7710, Waikato Regional Council v Vinka Farms Limited [2020] NZDC 2896, Otago Regional Council v Greg Cowley Limited [2019] NZDC 13639, Waikato Regional Council v On Da Edge Farms Limited, [2019] NZDC 12214, Taranaki Regional Council, v Farm Ventures Ltd, [2019] NZDC 10803, Southland Regional Council v Gladvale Farms Limited, [2018] NZDC 25071, Bay of Plenty Regional Council v Ruki, [2019] NZDC 13701 and [2020] NZHC 669 and Southland Regional Council v McPherson [2017] NZDC 27751.

24 See above n 18.

25 Waikato Regional Council v Cazjal Farm Limited & T Olson [2017] NZDC 12226, Southland Regional Council v Nigel Elder & Weedon Creek Cattle Company Limited [2018] NZDC 3218, Taranaki Regional Council v Lilley & Duffey DC New Plymouth CRI-2010-043-003887, CRI-2010- 021-000473, 14 December 2010 and Waikato Regional Council v Bertling [2009] NZDC 16796.

26 Bay of Plenty Regional Council v DJK Limited, see above n 18.

$65,000 was adopted. In Gladvale,27 a starting point of $60,000 was adopted in respect of a discharge of effluent resulting from infrastructure and management failures.

[76] When regard is had to all the circumstances of this case, it is clear that the effluent management system, prior to its upgrade, was operating satisfactorily. A difficulty arose with the completion of the upgrade. There was a period of time between construction of the new effluent pond and commissioning that new system, when effluent management at the farm came under pressure. That pressure was largely placed on Mr Engelbrecht, requiring a greater level of monitoring the state of the sump and irrigator and surveillance of the irrigator. Those systems did not cope with the extra load on them, resulting in the discharge which is the subject of these charges.

[77] The parties do not need to be reminded that the matter of the appropriate disposal of effluent is a serious one. There are many cases where offending arises as a result of failings in the infrastructure and/or failings in the way in which that infrastructure is managed. Some of those incidents are unforeseeable, despite best endeavours to guard against discharges. Others are clearly foreseeable and the result of owners and/or operators taking risks. It is clear that, in this case, all involved had the best of intentions with regard to effluent management, but those intentions did not translate into safe practices.

[78] In the circumstances I consider that an appropriate starting point for the company is $70,000, for Mr Archer $50,000 and for Mr Engelbrecht $45,000.

[79] While the events leading to the offending are somewhat unusual, this case serves as a timely reminder to those in management that they need to be extremely proactive in looking at alternative ways to guard against system failures.

Aggravating and mitigating factors

[80] Ms McConachy advised that neither Mr Archer nor Mr Engelbrecht had any relevant history. Trinity Lands, however, has received two formal warnings relating

27 Southland Regional Council v Gladvale Farms Limited, see above n 19.

to other properties and a farm manager on another farm was warned in respect of over- irrigation.

[81] Mr Hammond sought discounts for the defendants’ early guilty pleas, cooperation with the Council’s enquiries, prompt remediation, good character and restorative justice proposal (Trinity Lands). He also emphasised Trinity Land’s and Mr Archer’s remorse for the offending and drew my attention to Trinity Land’s record of support for the community, including support for the environment.

[82] I was provided with details of Trinity’s community grants and donations. That list is extensive. Mr Hammond also advised of a plan to undertake wetland restoration works on the farm costing $44,300. There will be obvious benefits from those works

– including extraction of nitrate and provision of habitat for native and wetland bird species. He referred to the Court’s observations in DJK Limited. In that case the Court addressed discounts that may be allowed for restorative justice outcomes; that 5–10 percent could be available.

[83] Mr Hammond submitted that a discount above 10 percent should be applied here because it involves a direct environmental enhancement to the property.

[84] Ms McConachy observed that no set timeframe was proposed for the works, and that the environmental benefit is linked to the property. In response, Mr Hammond stated that it was an ‘unconditional commitment that will happen over time’.

[85] Mr Hammond also advised that Trinity has invested more than $5 million in effluent system upgrades, transitioning 16 dairy farms to a new effluent system. Trinity will invest a further $1 million this year, including $500,000 on advanced technology to a centralised monitoring system with automated shut down capability to eliminate the risk of human error.

[86] Taking into account these matters, a discount of eight percent is appropriate to recognise the company’s good character and proposed remediation works. While the company has some compliance history, none of it resulted in prosecution. Finally, a discount of 25 percent for the company’s early guilty plea is appropriate.

[87] It is appropriate to allow a 25 percent discount for Mr Archer’s early guilty plea. It is also appropriate to recognise his cooperation with the Council and prompt steps taken to ensure that the problem which led to the discharge would not re-occur. Mr Hammond gave an extensive summary of Mr Archer’s career accomplishments and the nature of his charitable works. He is clearly a person of good character. In all those circumstances, a further discount of eight percent is appropriate.

[88] For Mr Engelbrecht, it is appropriate to allow a discount of five percent for his good character and 25 percent for an early guilty plea.

Applications for discharge without conviction

[89] Applications for discharge without conviction were made on behalf of Mr Archer and Mr Engelbrecht. Ms McConachy advised me that the Council was neutral on the applications for discharge, and was content to leave the matter to the Court’s discretion.

[90] Sections 106 and 107 of the Sentencing Act apply.

[91] The established three stage analysis for discharge without conviction is: first, the gravity of the offending (taking into account all aggravating and mitigating factors of the offending and the offender); secondly, what are the direct and indirect consequences of a conviction on the defendant; and, thirdly, an assessment of whether those consequences are out of all proportion to the gravity of the offending. Overall, the Court retains a discretion to grant or refuse the application after considering those matters.

[92] I address each application in turn.

Mr Archer

Gravity of the offending

[93] I have found that Mr Archer could have exercised more care in the way in which he managed the replacement of the effluent pond infrastructure, and in the expectations he placed on Mr Engelbrecht to manage a delicately balanced and limited

effluent system. I consider, however, that Mr Archer’s culpability must be considered in light of the steps that had been taken prior to the offending to upgrade the effluent system. As is evidenced by the starting point I have adopted, this offending cannot be seen as inconsequential or minor. It is, however, at the lower end of offending of this kind. I have also found that the discharge would have had moderately serious adverse effects on the environment. I take note of Mr Archer’s cooperation with the Council and prompt steps to ensure there was not a further discharge.

Direct and indirect consequences of the offending

[94] Mr Hammond described the essence of the application, being that a conviction would have very severe repercussions on Mr Archer’s career; he is in the business of a dairy farm advisor and providing advice and management solutions to dairy farming; he has formal training in soil sciences, animal management systems and animal nutrition; he has qualifications in farm business management and a graduate diploma, with distinction, in rural studies; he has extensive knowledge and practice developing formal, sustainable farm management plans, and so far has completed 30 in conjunction with Dairy NZ; he annually prepares and produces nutrient budgets for 25-30 farms using FM Overseer; he has practice and knowledge in working with engineers in putting in place water control devices, building bunds and calculating catchment runoff, among others.

[95] In the very near future he plans to register with and become a certified Farm Environment Planner, preparing FEPs for compliance with the rules for healthy rivers PC1 plan change being implemented by the Council. Mr Hammond submitted that a conviction under the Act would severely affect both his reputation as a credible farm adviser, and almost certainly disqualify him from registering with the Regional Council as a farm environmental planner.

[96] I was also advised of Mr Archer’s charitable work in both South America and Australia supporting prison ministries and developing dairy farms in subsistence communities to enable further education and development in Bolivia in partnership with locals there. He has also trained locals in New Zealand-type farming systems. That requires his intermittent travel to the Americas and it was submitted that, with recent travel changes and restrictions with more travel routes through the USA, it will

be extremely difficult for him to travel through multiple borders. He now has immediate family who have lived and are to live in South America.

Proportionality

[97] In support of his application, Mr Hammond referred me to Bay of Plenty Regional Council v DJK Limited & Kehely,28 and Waikato Regional Council v Fullerton & Fullerton.29 I was not particularly assisted by those cases as each case depends on its own facts. At the hearing, Mr Hammond reiterated that Mr Archer’s career will be seriously and detrimentally impacted by a conviction; there will be an impact on him that is disproportionate to his culpability for and gravity of the offending. He noted that there is a corporate entity who will be paying the fine.

[98] In the event that Mr Archer is discharged without conviction, Mr Hammond advised me of Mr Archer’s offer to pay a contribution to the Council’s costs of investigation and prosecution. The Council’s costs total $24,464.00.

[99] I acknowledge that it is recognised that a conviction for effluent discharge offending may have a direct impact on a worker’s ability to obtain employment in the dairy industry. I received no evidence as to potential loss of employment or contracts. Also, I received no evidence that any travel plans will be impacted by a conviction. I accept, however, that as a dairy farm advisor Mr Archer’s credibility may be damaged by a conviction. I have no evidence to support the claim that his ability to become a certified Farm Environment Planner may be affected by a conviction.

[100] At its heart, the consequence most feared by Mr Archer is the damage to his reputation and career, best described as the stigma of conviction. I accept that is a real or potential consequence I am obliged to take into account. I have noted that Mr Archer is a person of good character with many career accomplishments and considerable charitable works. I have also noted that, as a dairy farm advisor, he provides advice and management solutions to dairy farms. His reputation in this field is important to him. The question is whether the stigma of a conviction and the blot

28 Bay of Plenty Regional Council v DJK Limited & Kehely [2020] NZDC 7710

29 Waikato Regional Council v Fullerton & Fullerton [2019] NZDC 23720

on his good character is out of all proportion to the seriousness of his offending (which I have characterised as being at a relatively low level) – given the context in which it occurred.

[101] In all the circumstances, including the context of the offending, I conclude that the consequences of a conviction will be out of all proportion to the gravity of the offending. I am satisfied that it is appropriate for me to exercise my discretion under s 107 of the Sentencing Act. I determine that Mr Archer should contribute $5,000 to the Council’s costs. I emphasise that this outcome is unique to this case.

Mr Engelbrecht

Gravity of the offending

[102] I have already found that Mr Engelbrecht could have taken more care in the way in which he operated the effluent system, but that the problem of managing the system while the new system was being commissioned was largely thrust upon him and not of his making. I have found the adverse effects of the discharge on the environment to be moderately serious.

Direct and indirect consequences of the offending

[103] Mr Beadle advised me that Mr Engelbrecht is 46 years old and has spent 13 years in the dairy industry. He does not hold any other specific qualifications in any other industry profession; he does not have his own herd, farmland or equipment. He submitted that Mr Engelbrecht is dependent on work within the industry to support himself and is also responsible for the employment of his wife and daughter. He notes that Mr Engelbrecht’s current contract expires in June 2021 and submitted that, if his contract was not renewed he would be reliant on his reputation to gain alternative work.

[104] Mr Beadle submitted that a balance must be struck between the adverse consequences of a conviction on a worker’s ability to obtain a future career in the dairy industry and an employer’s entitlement to know whether a worker has been

significantly deficient in his duties.30 He submitted that Mr Engelbrecht was not deficient in his duties but rather a victim of systemic failure.

[105] Mr Beadle added that Mr Engelbrecht would be required to disclose his conviction to future employers or business partners, this would be a significant disadvantage and is likely to create major difficulties in obtaining work; that it is possible that the conviction would prevent him from securing an interview for a future role such that he would not have the opportunity to explain the background of his offending and the constraints within which he was working. Mr Beadle relied on the evidence of David Boydell Miller, a farm consultant involved in the recruitments of contract milkers and shareholders. He submitted that Mr Miller’s affidavit spoke to the difficulties that Mr Engelbrecht is likely to face when applying for positions in the future. Mr Miller addressed the recruitment process typically followed by his company and the limits which may be placed on those with previous convictions – in terms of not being shortlisted for a position. The only exception would be if they personally knew the candidate, or if some time had passed since the conviction.

Proportionality

[106] On balance, Mr Beadle submitted that the above direct or indirect consequences from a conviction are disproportionate to his culpability for, and the gravity of, the offending. He submitted that I should place weight on the fact that systemic issues heavily contributed to the offending; the offending resulted in low environmental impact; he has an otherwise clean record and good reputation; and he has been charged in his personal capacity as opposed to EZ Farming Limited being charged as the operator. In that final regard, I note that the milking contract with which I was provided was between Trinity Lands and K & S Engelbrecht. There was no other party to the contract. I note also that my findings on the effects of the offending differ from those of Mr Beadle.

30 Southland Regional Council v Nigel Elder & Wendon Creek Cattle Company Limited above n 21.

[107] Finally, he acknowledged that deterrence from offending is important, however he submitted that it is not appropriate for Mr Engelbrecht to be convicted as an example to deter others due to the accidental nature of the discharge and the extent to which systemic issues with the effluent system contributed to its occurrence.

[108] In the event that the Court discharges Mr Engelbrecht without conviction, Mr Beadle indicated that Mr Engelbrecht offered to pay such contribution towards the Council’s costs of investigation and prosecution as the Court considers appropriate.

[109] I conclude that it is appropriate to discharge Mr Engelbrecht without conviction, largely because the problem that led to the offending was not entirely of his own making. I also note that his personal circumstances are such that not only he, but his wife and daughter may suffer from events not entirely within his control. For that reason, I determine it is appropriate that he be discharged without conviction and that he contribute to the costs of the Council’s investigation and prosecution in the amount of $2,500.00.

Outcome

[110] Mr Archer is discharged without conviction and ordered to pay $5,000 towards the Council’s costs in this matter.

[111] Mr Engelbrecht is discharged without conviction and ordered to pay $2,500 towards the Council’s costs in this matter.

[112] Pursuant to s 81(1)(b) Summary Proceedings Act 1957 I direct the Registrar to determine whether to enter into an arrangement with Mr Archer and Mr Engelbrecht for payment of the contribution to Council’s prosecution costs over a period of time, should either of them request such an arrangement within 28 days.

[113] Trinity Lands Limited is convicted and fined the sum of $46,900.

[114] I direct that 90 percent of the fine is to be paid to the Council pursuant to s 342 of the RMA.

Judge MJL Dickey

District Court Judge

Date of authentication: 21/12/2020

In an electronic form, authenticated pursuant to Rule 2.2(2)(b) Criminal Procedure Rules 2012.