Wellington Regional Council v CPB HEB Joint Venture [2021] NZDC 12513 (22 June 2021)

Last Updated: 16 July 2021

IN THE DISTRICT COURT AT WELLINGTON I TE KŌTI-Ā-ROHE KI TE WHANGANUI-A-TARA

CRI-2019-096-004054

[2021] NZDC 12513

GREATER WELLINGTON REGIONAL COUNCIL

Prosecutor v

CPB HEB JOINT VENTURE Defendant

Hearing:	22 June 2021
Appearances:	A Britton for the Prosecutor H Harwood for the Defendant
Judgment:	22 June 2021

NOTES OF JUDGE B P DWYER ON SENTENCING

[1] CPB HEB Joint Venture (the Joint Venture or the Defendant) has pleaded guilty to four charges brought against it by Greater Wellington Regional Council (the Council). There are two charges of using land in a manner that contravened a regional rule when that use was not expressly allowed by s 20A of the Resource Management Act 1991 (charging documents ending 6143 and 6144). Then there are two charges of discharging a contaminant onto land in circumstances that may result in that contaminant entering water (charging documents ending 6141 and 6142).

[2] Section 24A of the Sentencing Act 2002 is not applicable. No suggestion has been made that the Defendant should be discharged without conviction so it is hereby convicted on all four charges accordingly.

GREATER WELLINGTON REGIONAL COUNCIL v CPB HEB JOINT VENTURE [2021] NZDC 12513 [22

June 2021]

[3] The Joint Venture was formed by its participants to undertake works as contractor on the Transmission Gully motorway project. The charges arose out of work which it did on the project through a sub-contractor between March and June 2019.

[4] In June of 2012 NZTA had obtained a comprehensive suite of resource consents allowing construction of the motorway. As contractor the Joint Venture was obliged to undertake the works for which it was responsible in strict compliance with the terms of those various consents and also (in the case of permitted activities) in accordance with the requirements of the Wellington Regional Plan and Porirua City District Plan.

[5] The works which are subject to these charges were undertaken in the Belmont Regional Park. Duck Creek and Cannons Creek run through the Park, together with various tributaries of those water bodies. Duck Creek, Cannons Creek and all of their tributaries are recognised in Schedule F1 of the proposed Wellington Region Natural Resources Plan. Both Creeks contain significant ecosystems with habitat for indigenous, threatened or at-risk fish species.

[6] Duck Creek flows directly into Pāuatahanui Inlet. Cannons Creek flows into the Onepoto Inlet via the Kenepuru and Porirua Streams.. These two water bodies form the largest estuary in the lower North Island. It is my understanding that Pāuatahanui Inlet on its own would have that distinction. The two estuaries are subject to a number of statutory recognitions, protections, and enhancement programmes. It is well recognised that their health is in gradual decline with the effects of sedimentation being at the forefront of that decline.

[7] Persons familiar with the findings of the Board of Inquiry into the Transmission Gully motorway will be aware that the effects of sedimentation brought about by works associated with that project were a matter of prime concern in the Board’s deliberations. I set these matters out up front as I consider them to be issues of particular significance in this sentencing.

[8] The offending arose as a result of access track widening and fencing works undertaken by the Joint Venture through a subcontractor acting on its behalf. The work was undertaken in reliance on permitted activity rules for such works contained in the Regional and District Plans. Among other things, the Plans set limits on cut heights and fill depth of earthworks, regulate displacement of soil and debris and set out the maximum permitted area of earthworks which may be undertaken without resource consent.

[9] The Joint Venture obtained a planning assessment of the proposed earthworks which concluded that the planned extent of track widening was within the scope of the permitted activity rules. However the summary of facts states that the actual extent of works exceeded the planned amount and, in turn, the amount allowed by the permitted activity rules. Accordingly the subsequent discharge of material from the earthworks into tributaries was not permitted by any regional rules nor by resource consents for the project.

[10] The summary of facts describes the offending as discovered by Council officers in Duck Creek and Cannons Creek on 29 May 2019 in these terms (and I am simply going to incorporate into the written sentencing notes paragraphs 19(a) to (g) of the summary of facts that relate to Duck Creek and paragraph 21(a) to (g) of the summary of facts as relating to Cannons Creek):

19. The inspection of the Duck Creek site was to assess compliance with the RMA. The Council inspectors observed:
    
    • (a) Approximately one kilometre of earthworks forming a track in the Duck Creek catchment within Belmont Regional Park, traversing both sides of the gully system containing the flowing tributary of Duck Creek (known as Duck 11). The existing track was 3m wide and was widened to approximately 4m but up to 7m in some places. The height of the cut was approximately between 2m and 4m.
      
    • (b) The excavated material from the earthworks had been side- cast over the steep slopes of the catchment. In areas, side-cast material was placed on slopes in excess of 80 metres above the stream. At other points in the gully that contained Duck 11, the side-cast extended down into the bed and flowing channel of Duck 11. Rock, soil and sediment consistent with the excavated material was located in the bed of the Duck 11

directly below excavated cuts. This area is identified in the aerial image below:

(c) A small section (approximately 20 metres in width, 30 metres in length) of the side- cast material on the southern facing slope had coconut matting applied, partially covering the loose side-cast material. There was patchy hay cover on the remaining side-cast material, but the cut faces above the track and the track itself had no stabilisation measures or sediment controls in place.

(d) A small stream that appeared as an ephemeral upslope of the track, which day-lighted immediately upslope of the track on the northern section of the works, ran across the track and down the slope into Duck 11. No obvious work had been done to protect the stream crossing, which had been disturbed by vehicle crossing (by both CPB HEB JV and the Council). Side-cast material could be seen in the tributary stream channel below the track. Mr McLean walked down the gully and observed the stream further down was running clear, but coarse material could be seen above and in the channel.

(e) Adjacent to the Duck 11 track crossing, side-cast material was deposited below the track. Most of the material was unstabilised. Some larger rocks had rolled further down the slope and some were in the tributary bed. Otherwise, the main flow appeared relatively unimpeded and water was running clear.

(f) On the southern side of the gully, quantities of side-cast material were deposited below the track. On this side of the gully, there were minor sub- surface/ephemeral flows exposed across this side of the track. Hydroseed had been applied to the side-cast material on this side of the track in places, but material had mobilised in places post-application. No other stabilisation or mitigation measures were in place.

(g) A staff member of the CPB HEB JV, Kory Wright, was encountered when the Council inspectors were making their way off the Duck Creek site. Mr Wright informed the council inspectors that, two days prior, he had taken over the role of supervisor of the Mitigation Planting/Landscaping team for the CPB HEB JV. He further informed that this was the third attempt at stabilisation of the side-cast material. A crew was coming to apply further coconut matting to stabilise the higher risk slopes on the eastern part of the track.

(image omitted)

21. While onsite assessing the Duck Creek tracking works, Mr Paterson informed Mr McLean that CPB HEB JV had also carried out tracking works by in the Cannons Creek catchment of Belmont Regional Park.

Consequently, on 29 May 2019, the Cannons Creek site was also inspected for RMA compliance. Mr McLean, Mr Olson and Ms Fenn observed:

(a) The existing farm track had been modified and excavated material side-cast over the slopes of the catchment. Again, in places, the side-cast material had entered the bed of an intermittently flowing tributary. At the time of the inspection the tributary was flowing.

(b) The majority of the side-cast material was unstabilised, with hay placed on some of the material. The coverage was insufficient at the time. No further sediment control measures were in place to prevent further discharge of sediment from the side-cast material into tributaries of Cannons Creek.

(c) The track itself, and the cut faces above it, had no stabilisation or sediment control measures in place.

(d) Farm fencing was not in place and stock still had access to where works had occurred, which was contributing to the disturbance of the side-cast material as stock was standing on it and eating any hay placed.

(e) Side-cast material from the slope above the true right side of a flowing tributary had entered the tributary, smothering approximately 100m of stream in length. Further material was located in the channel for an additional 20-50m downstream of the smothered section, which appeared to have washed down from the smothered section.

(f) There was unstabilised side-cast material on the slope above the true left side of the tributary that had mobilised down the bank and also entered the tributary.

(g) The material in the tributary consisted of fine sediment as well as dirt and various sized rocks, consistent with the side-cast material. Upstream and downstream of the smothered section the stream was flowing steadily, and some flow was observed in the void spaces between the materials. The water was running clear above and below the impacted sections at the time which is typical of the lighter sediment and material already washed down.

[11] Council officers undertook further site visits on 31 May, 5 June and 28 June 2019 and found ongoing issues as a result of the disturbance.

[12] Ecologists undertook an assessment of the ecological effects of the works. Their findings as to the effects of the discharges in the tributaries are described in paragraphs 38 to 46 of the summary of facts as follows:

Effects on the tributaries

38. Both the Cannons Creek and Duck Creek tributaries are streams within the Belmont Regional Park. Both have minimal riparian vegetation in their upper reaches and stock had access to them.
    
39. The tributaries contain a mixture of macrophyte plants (mostly monkey musk and rushes) and support benthic macroinvertebrate communities. Neither contained fish habitat at the impact sites. Dr Harrison considers there is potential habitat within deeper pools of permanently flowing reaches of the tributaries. Dr Keesing survey of the length of both tributaries found no pools that are sufficiently large and deep enough to house native fish or fishes as permeant or seasonal habitat. No evidence is available to demonstrate that there are any [perennial] flowing reaches of either tributary or potential fish habitat within them.
    
40. The side cast material (including fine sediment, rock and soil) led to the burial of parts of the Cannons Creek tributary. The side cast material caused a discharge of finer-sized sediment into both the tributaries.
    
41. In regards to the Cannons Creek tributary, the coverage occurred in an ephemeral reach directly above an intermittently flowing reach. Finer sized sediment will enter this downstream reach during rainfall.
    
42. The Duck Creek tributary has a lower flow and there is disagreement between the experts as whether it has an intermittent or perennial flow. At each of the inspections, the tributary was flowing, however no other evidence is available to demonstrate that it has a perennial flow.
    
43. The addition of rock, soil and particularly fine sediment from the works can place an additional long-term stress on the tributaries.
    
44. The burial of the sections of the tributaries had a temporary adverse effect related to the burial of monkey musk and other macrophyte plants, and the macroinvertebrate communities. The macroinvertebrates (primarily snails related to the macrophytes) have an intermittent semi-terrestrial system of low EPT richness. Most of these taxa will have persisted under the side cast. While burial was not fatal to those communities, their environment changed and caused adverse effects. The macrophyte plants had to grow through the side cast material which took several months.
    
45. The direct effects were less than minor for Duck Creek.
    
46. For the Cannons Creek tributary, Dr Keesing’s opinion is that the direct effects were also less than minor due to the low value of the taxa present and their ability to recover within a period of months. Dr Harrison does not agree with this less than minor categorisation due to the length of the tributary that was covered by the side-cast material.
    

(footnote omitted)

[13] The summary of facts went on to state that neither ecologist identified sedimentation or other effects on the main stems of Duck or Cannons Creek. Obviously that extends to the inlets into which the creeks ultimately flow.

[14] In fixing a starting point for sentencing I note that the maximum penalty for each offence for this Defendant (being an unincorporated body-albeit comprising incorporated members) is the sum of $300,000 (I think I am right in my assessment of that). Counsel have both based their sentencing submissions on identifying one global penalty for all of the offences. I concur with that approach for this offending which relates to work as part of a track widening and fencing operation involving a number of offences at the same time over the same general area.

[15] The Council submits that the appropriate starting point for penalty is in the range of $70,000 to 80,000 and seeks an uplift in the range of $5,000 to $10,000 on account of the Joint Venture’s alleged past poor compliance with the RMA in its work on the project. Counsel for the Joint Venture submits that a starting point of $30,000 to 40,000 is appropriate and disputes the applicability of any uplift.

[16] The matters that I have considered particularly significant in fixing a starting point are as follows:

• The vulnerability of the downstream environment potentially affected by sediment from earthworks undertaken by the Defendant in this particular catchment. Associated with that in this case is the matter of deterrence and denunciation;
  
• The nature of the adverse effects;
  
• The issue of culpability;
  
• Comparable cases.
  

[17] In terms of the vulnerability of the downstream environment, I refer to my earlier comments in that regard. Pāuatahanui and Onepoto Inlets are water bodies of

major significance which are widely recognised as being highly vulnerable to the effects of sedimentation, particularly so in the case of Pāuatahanui Inlet. Consistent with the provisions of s 6(a) of the Resource Management Act, their protection is a matter of national importance.

[18] The potential for the inlets to be adversely affected by sediment generated by earthworks undertaken as part of the Transmission Gully project was well recognised when resource consents for the project were granted. It is incumbent upon those undertaking work on the project to do so in a manner which avoids sediment discharges within the catchment to the greatest extent possible. In that regard, the deterrence of breaches of resource consent conditions and permitted activity standards by those carrying out works on the project by the imposition of significant penalties, is a consideration of particular weight.

[19] In this case the direct adverse effects on the tributaries into which side castings were deposited, when considered in isolation, were minor. The wider issue for the Court is the cumulative effect of myriad minor discharges into our waterways (particularly in this catchment) of sediment which is the most pervasive and significant contaminant in New Zealand rivers, estuaries and coastal waters. In this instance sediment from these minor discharges would accumulate with sediment generated by other minor discharges and ultimately end up in two water bodies which are particularly vulnerable to the effects of sedimentation.

[20] There is some difference between counsel as to culpability. Counsel for the Council submits that the Joint Venture’s culpability is high. The Council contends that the Joint Venture was negligent in failing to ensure that the subcontractor which carried out the track widening and fencing work was adequately supervised and complied with the assessments and requirements which were necessary to meet permitted activity standards.

[21] Although the Joint Venture disagrees with the “negligent” assessment it accepts that a lack of supervision of its subcontractor created the situation which led to the contravention occurring and acknowledged that its conduct was careless but not deliberate. When that concession is looked at in the context of the known vulnerability

of the wider environment to the effect of earthworks undertaken as part of the project (something of which the Defendant as head contractor must have been aware), I find that the Joint Venture’s culpability is very high.

[22] The photographs appended to the summary of facts show very significant slips and side castings from the earthworks which would have been readily apparent, should have been avoided and should have been speedily remediated had the Joint Venture been exercising appropriate control of the work. That is another factor in my finding as to culpability.

[23] I have considered the various comparable cases identified by counsel. The starting points identified range from $20,000 for a minor player, in culpability terms, in the Rex Holloway case, to $80,000 for the offender primarily responsible in that case.1

[24] The cases involve various degrees of adverse effect. Having considered all of the above matters, and acknowledging the minor nature of proven adverse effects in this case, I determine that the appropriate starting point penalty is the sum of $80,000, as submitted by the council.

[25] I record that had more significant adverse effects and/or a wider degree of sedimentation in the waterways been established my starting point would have been considerably higher.

[26] The factors which primarily lead me to the $80,000 figure are the known vulnerability of the inlets of Porirua Harbour to the effects of sedimentation (including the effects of sedimentation from numerous small sediment discharges) and the recognised need to protect these water bodies from the discharge of sediment, particularly from earthworks associated with the Transmission Gully project which is known to be likely to generate such discharges. I repeat that the need to deter such discharges is a particular factor in my considerations. I also repeat my observation that had there been more significant proven adverse effects I would have taken a considerably higher starting point.

1 Waikato Regional Council v Rex Holloway & Co Ltd DC Hamilton CRI-2013-019-3819, 6 May 2014.

[27] Appendix F of the summary of facts identifies what the Council describes as three instances of similar non-compliance arising from the project, which it says, warrant an uplift from the starting point. The Appendix contains insufficient evidence for me to adequately assess that contention and the Defendant gets the benefit of any doubt in that regard so I do not propose any uplift. However, nor do I give the Joint Venture any credit for past good character.

[28] A guilty plea in this case was entered nearly 18 months after the charges were filed, with not guilty pleas having initially been entered and there was a failed application for dismissal of the charges pursuant to s 147 CPA. I will reduce starting point by 12.5 per cent (in other words a 12.5 per cent credit will be given) to reflect the belated guilty pleas, giving an end penalty outcome of $70,000 all up. I will apportion that equally between the four charges.

[29] Accordingly, I determine as follows:

• On each charge CPB HEB Joint Venture is fined the sum of $17,500;
  
• It will pay solicitor costs in accordance with the Costs in Criminal Cases Regulations, (to be fixed by the Registrar if need be) and Court costs of $130 on each charge;
  

Finally, pursuant to s 342 of the Resource Management Act, I direct that the fines (less 10 per cent Crown deduction) are to be paid to the Greater Wellington Regional Council.

B P Dwyer

Environment/District Court Judge