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Auckland Council v Efficient Bobcats Ltd [2021] NZDC 13996 (4 August 2021)

Last Updated: 13 August 2021


IN THE DISTRICT COURT AT AUCKLAND

I TE KŌTI-Ā-ROHE
KI TĀMAKI MAKAURAU
CRI-2020-044-001859
[2021] NZDC 13996

AUCKLAND COUNCIL
Prosecutor

v

EFFICIENT BOBCATS LTD
and
JONATHAN RICHARD CLIMO
Defendants

Hearing:

Further submissions:
29 April 2021

3 May 2021 from first defendant
28 June 2021 from first defendant & prosecutor
Appearances:
DJ Collins for the prosecutor
BR Harris for Efficient Bobcats Ltd M Macnab for Mr Climo
Judgment:
4 August 2021

SENTENCING DECISION OF JUDGE MJL DICKEY

The charges


[1] These prosecutions relate to unconsented earthwork activities and stream reclamation at two adjacent properties, being 88 Adams Road and 90 Adams Road, Wainui. The offending dated from 23 October 2019 to 20 February 2020, and related to:

AUCKLAND COUNCIL v EFFICIENT BOBCATS LTD [2021] NZDC 13996 [4 August 2021]

Efficient Bobcats Limited:


(a) contravention of an abatement notice (CRN ending -194); and

(b) failure to maintain best practice erosion and sediment control measures for the duration of land disturbance at 88 and 90 Adams Road between 23 October 2019 and 20 February 2020 (CRNs ending -197 and -198) – representative charges; and

JR Climo:


(c) permitted the use of land at 90 Adams Road in a manner that contravened a rule in the Auckland Unitary Plan (Operative in Part) (AUP(OP)) due to a failure to maintain best practice erosion and sediment controls for the duration of land disturbance (CRN ending 199) – a representative charge;
(d) permitted the reclamation of a bed of a river between 5 July 2017 and 20 February 2020 at 90 Adams Road, in breach of s 13(1)(e) of the Act (CRN ending -202) – a representative charge.

[2] The defendants have pleaded guilty to the charges. In the case of the company, the maximum penalty for each offence is a fine not exceeding $600,000. For Mr Climo the maximum penalty for each offence is two years imprisonment or a fine not exceeding $300,000.

[3] Counsel agreed that a fine was the appropriate penalty, but they differed on starting points. Mr Collins, for the prosecutor, proposed a starting point of $50,000 in relation to Efficient Bobcats’ three offences and $50,000 in respect of Mr Climo’s two offences. For Efficient Bobcats, Mr Harris proposed a starting point of $10,000-

$20,000 for the abatement notice offence and $20,000 for the earthworks offending. For the second defendant, Ms Macnab proposed an end fine of $15,000, or 80 hours community service.


[4] A Summary of Facts was agreed.

Background1


The defendants


[5] Efficient Bobcats Limited (EBL) is a limited liability company that (until 28 May 2020) had its registered office at 945 Haruru Road, Wainui, RD3 Kaukapakapa, 0873. The defendant’s new registered office is in Papakura.

[6] According to its website, EBL carries on commercial/residential preparation and excavation activities including in relation to pools, driveways, site levelling, and site preparation. It advertises that it has 60 years “combined experience” in the earthworks industry.

[7] Vaughan David Cox is the sole director and 99 percent shareholder of EBL.

[8] Mr Climo resides at 90 Adams Road.

The sites


[9] 88 Adams Road comprises 1.9636 hectares. The property’s owner is Jacqueline Ruth Clarke. It is adjacent to the southern boundary of 90 Adams Road. It is a small lifestyle block elevated towards the northern end of the property and falls away towards the southern boundary. There is a single dwelling and outbuildings on the property. It is accessible via a driveway from Adams Road.

[10] The property at 90 Adams Road comprises 1.5358 hectares. The owners are Jonathan Richard Climo and Danella Climo. It is a small lifestyle block elevated towards the northern end of the property and falls away towards the southern boundary. There is a dwelling and large shed located near the middle of the property. It is accessible via a driveway from Adams Road.

1 Agreed Summary of Facts at [3]-[6] and [7]-[10].

Statutory framework2


[11] Both 88 and 90 Adams Road are zoned Rural Production in the AUP(OP). Land disturbance or activities in streams require compliance with regional and district rules.

[12] Rule E3.4.1(A49) of the AUP(OP) states that new reclamation or drainage, including filling over a piped stream, is a non-complying activity that requires resource consent.

[13] Standard E11.6.2(2) of the AUP(OP) provides that best practice erosion and sediment control measures must be implemented for the duration of land disturbance activities. Those measures must be installed prior to the commencement of land disturbance and maintained until the site is stabilised against erosion.

[14] Activity Table E12.4.1 (A5) of the AUP(OP) provides that in the Rural Production zone earthworks greater than 1000m2 is a restricted discretionary activity. E12.4.1 (A6) of the AUP(OP) also provides that in the Rural Production zone earthworks greater than 2500m2 is a restricted discretionary activity.

[15] Contraventions of any of the above standards or rules would require a resource consent from Auckland Council. No resource consents have been obtained for either 88 or 90 Adams Road authorising contraventions of those standards or rules.

The offending3


Initial warning 2017


[16] On 3 July 2017 the Council received a complaint that there were unconsented earthworks being carried out at 90 Adams Road.

[17] On 4 July 2017, a Council officer carried out a site visit at 90 Adams Road and met with the Mr Climo. During that site visit the officer estimated that the earthworks were about 1000m² in area or slightly more. Mr Climo told the Council officer that

2 Agreed Summary of Facts at [11]-[16].

3 Agreed Summary of Facts at [17]-[44].

the purpose of the earthworks was to drain and level off a wet area at the property to make a usable paddock. He acknowledged the area where earthworks were occurring was close to the stream and that a contractor (AC Diggers Ltd) had installed some silt controls.


[18] The Council Officer raised the following issues with Mr Climo:

[19] The Council officer provided Mr Climo with hard copies of relevant AUP(OP) rules.

[20] Following the visit, the officer emailed Mr Climo, drawing his attention to the above concerns regarding the work underway at the property and included photographs. Mr Climo forwarded the email to his contractor, AC Diggers Ltd, who responded to the Council, copying in Mr Climo.

October 2019


[21] On 17 October 2019, the Council received a complaint from a member of the public that extensive earthworks were being carried out at 90 Adams Road and that a large number of truck and trailer loads of soil had been dumped at the property.
[22] On 23 October 2019, two Council officers visited 90 Adams Road. The officers made the following observations during their inspection:

[23] The officers observed a large digger with EBL’s name signwritten on it. The officers also located a “daily load record” book near the entry to the property. The record book had a printed letterhead and company details for EBL. The record book indicated that 16 truck deliveries of fill had been brought to the site on 17 and 18 October 2019. Mr Cox was identified in the pre-printed information in the record book as “Site Manager”.

[24] On 25 October 2019, Mr Cox contacted one of the Council officers. Mr Cox told the officer about the site history; in particular that “AC Diggers” were carrying out a clean fill site at 90 Adams Rd “poorly” and that they had “gone under”. Mr Cox stated he was now trucking in predominantly topsoil, and trying to remediate the site by putting a layer of topsoil over it and tidying it up. The Council officer replied that the volume of material looked to exceed the permissible amount under the AUP(OP), and that there needed to be erosion and sediment controls installed at the property.

November 2019


[25] On 12 November 2019 Mr Climo spoke with a Council officer. The officer advised Mr Climo that he believed he had exceeded the area of earthworks permitted

under the AUP(OP) without the appropriate consents. Mr Climo said that AC Diggers had been doing the work but went into liquidation. He indicated that he was not aware of the permitted limits under the AUP(OP).


[26] The Council officer pointed out that Mr Climo had been told in 2017 about the earthworks limits and had received a letter. Mr Climo denied that he had been told, and said that it must have been the AC Diggers contractor. The Council officer advised that abatement notices would be issued, and Mr Climo provided an email address for the purposes of service.

[27] On the same day, the Council issued two abatement notices to each of the property owners of 90 Adams Road (including Mr Climo), and to EBL, under s 322 of the RMA:

[28] On 15 November 2019, Mr Cox requested by email a 1-week extension for installing the erosion and sediment controls due to poor weather. A Council officer replied the same day that an extension would not be granted because Mr Cox had already been informed on 25 October 2019 that sediment and erosion controls were needed; as a professional earthmover it should have put these in place prior to any work commencing. Mr Cox replied that he was concerned about the safety of bringing a machine to site, and the work would be commencing again on Monday and a sediment control pond installed by the middle of the following week.
[29] On 20 November 2019 Council officers visited 90 Adams Road to check compliance with the abatement notices. During the inspection Council officers observed the following:

December 2019


[30] On 3 December 2019, Council officers returned to 90 Adams Road to check compliance with the abatement notices. The officers observed:

[31] On 4 December 2019, Council officers carried out further investigation using the Auckland Council Geomaps technology, and identified that the earthworks at 90 Adams Road also extended into 88 Adams Road. Council officers identified the following:
[32] On 5 December 2019, the Council issued two abatement notices to the owner of 88 Adams Road (Jacqueline Clarke) and EBL, requiring that earthworks being carried out at 88 Adams Road immediately cease on the basis that the earthworks exceeded the 1,000m2 general earthworks area limit in rule E12.4.1(A5) of the AUP(OP). Council officers attended 88 Adams Road to deliver the abatement notice, and also emailed and posted copies to EBL.

[33] On 9 December 2019 Council officers visited both 88 and 90 Adams Road. They observed:

February 2020


[34] On 20 February 2020 Council officers executed search warrants at 88 and 90 Adams Road to undertake a survey and to carry out an ecological assessment of stream effects.

[35] Council officers identified that the stockpiles of fill were gone, although more fill had been moved around. The ground has been tidied up and hay mulch laid down over the area of the earthworks.

[36] There was evidence that further erosion had occurred, and again there were no erosion and sediment controls present.

[37] A report was produced by Flukers Surveyors assessing the area covered by “recent noticeable earthworks”. The report concluded that about 3600m2 of earthworks had been carried out at 90 Adams Road and 3808m2 of earthworks at 88 Adams Road.

[38] The report recorded that a visible watercourse was identified following the overland flowpath on the Council Geomaps travelling through 88 and 90 Adams Road, the watercourse is visible in two parts, separated by a significant gap where the area of earthworks had been undertaken.

[39] During the execution of the search warrant, Council’s Stream Specialist also identified intermittent streams upstream and downstream of the earthworked area, and concluded that an intermittent stream had passed through both 88 and 90 Adams Road. This part of the stream had been piped and filled over. At the upstream portion of the stream a large pile of rock (“rip rap”) had also been placed across the entirety of the channel. This effectively dammed stream flow before flowing into the pipe (approximately 300mm) at the end of the stream.
[40] The Stream Specialist concluded that an intermittent stream existed within the fill area prior to filling, resulting in several contraventions of the AUP(OP), including rule E3.4.1(A49), due to the reclamation of an intermittent stream. I note that the reclamation is an offence against s 13(1)(e) of the Act.

Sentencing Act


[41] The purposes and principles in the Sentencing Act 2002 apply. A helpful summary of the matters to which the Court should have regard and that have been identified as being relevant to offending under the Act is set out by the High Court in Thurston v Manawatu-Wanganui Regional Council.4 They include the offender’s culpability; any infrastructural or other precautions taken to prevent or otherwise avoid unauthorised discharges; the sensitivity, vulnerability or ecological importance of the receiving environment and the extent of any damage to it; the principle of deterrence; the capacity of the defendant to pay a fine; disregard for Council requirements; cooperation, and guilty pleas.

Environmental effects

Stream reclamation (s 13(1)(e) charge)5


[42] The stream reclamation and placement of rock structures within the remaining stream has resulted in permanent loss of intermittent stream habitat, is likely restricting conveyance of stream flow, and has completely blocked fish passage to the upper reaches of stream remaining.

[43] Due to the natural terrain and position of the stream within the catchment, only climbing fish species would have been able to traverse the stream reach prior to reclamation. Fish passage and migration is necessary to access the range of habitats necessary to support different life-stages of native fish. Where fish passage is impeded, the consequence is a reduction in the distribution and abundance of freshwater species. The filling activities may have resulted in fish fatalities depending

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

- 27, 27 August 2010 at [41].

5 Agreed Summary of Facts at [45]-[47].

on the methodology of the earthworks and whether fish were present at the time of filling.


[44] The placement of rocks within a section of intermittent stream upstream of the reclamation is likely to dam flows behind the rocks, likely causing erosion and scour of the stream bed where sediment laden water could discharge downstream if it is able to flow through the pipe or via overland flow if flows overtopped the stream banks.

Lack of sediment controls (s 9(2) charges)6


[45] During earthworks, uncontrolled sediment discharges to the stream below the fill was highly likely as appropriate erosion and sediment controls were not implemented.

[46] The discharge of fine particulate sediment to waterways can degrade water quality and stream habitat where it reduces clarity and visibility, blocks and damages fish gills or feeding apparatus of invertebrates, smothering habitat and reducing food sources for fish.

[47] An ecologist’s report dated 20 February 2020 was submitted with the agreed summary of facts. Fiona Harte, Senior Specialist – Earth and streamworks, stated that it is clear that an intermittent stream existed within the fill area prior to filling. Ms Harte had concerns about the stability of the fill, especially in the upcoming winter months where scour was already present and the underfill pipes seemed to have been installed on an ad-hoc basis. Ms Harte was unsure if the pipes had been sized to adequately cater for surface and groundwater flows following reclamation.

Prosecutor’s submissions


[48] The receiving environment comprises two adjacent sloping rural lifestyle blocks with an intermittent stream running through them. Mr Collins advised that the stream at the southern boundary of 88 Adams Road flows for approximately 1.8km before it meets the Haruru Stream and then flows for approximately 12km, joining the Makarau River and ultimately discharging to the coastal marine area within the

6 Agreed Summary of Facts at [48]-[49].

Kaipara Harbour. The mouth of the Makarau River is defined as a significant ecological area (SEA-M2-6A) recognised for its intertidal banks, shellbanks and mangroves forming a complex habitat for a variety of animal and plant communities. The rich intertidal banks are a feeding ground for thousands of international migratory and New Zealand endemic wading birds including a number of threatened species.


[49] Mr Collins accepted that the environment where the earthworks occurred is itself not a particularly vulnerable area, but submitted it still has ecological value. He submitted that even intermittent headwaters should not be disvalued.

[50] Mr Collins submitted that the environmental effects caused by the stream reclamation offending (relevant to Mr Climo) are moderately serious as it has resulted in the interruption of a section of an intermittent stream and loss of stream habitat. He submitted that even intermittent headwaters should not be undervalued. Intermittent streams have specific functions within the wider catchment, such as processing of nutrients, sediment, regulating hydrology (stormwater conveyance and flood storage) which regulate the transport and water quality to the permanent streams downstream. Intermittent streams can also have equivalent biodiversity to permanent streams. He did not dispute that intermittent streams are subject to periodic drying over the summer months.

[51] Mr Collins further submitted that the likely environmental effects caused by the lack of sediment controls (relevant to EBL and Mr Climo) could also be described as moderate.

[52] He acknowledged that the environmental effects can be distinguished, in the sense that Mr Climo has pleaded guilty to reclaiming the stream and lack of sediment controls. The effects of the reclamation are not relevant to EBL’s offending.

[53] Mr Collins accepted that the Court must factor in potential and cumulative effects as well as actual effects. He accepted that there are no significant actual effects of the offending but, submitted that environmental impact is only one of a number of matters to be taken into account; and in this case there are other aggravating features.

EBLs’ submissions


[54] EBL acknowledged that there was potential for environmental harm to have occurred where adequate erosion and sediment controls were not maintained throughout the land disturbance work. Mr Harris acknowledged that uncontrolled sediment discharges into a stream can (and do) degrade water quality and stream habitat.

[55] Mr Harris stated that EBL was unaware of the original state of the properties before the earthworks were undertaken by AC Diggers. He submitted that, if there was an intermittent stream across these properties, it would be at the very outer edge of the wider catchment area. He advised that EBL does not recall seeing a permanent stream, or an obvious flowing intermittent stream; that mapping suggests that overland flow paths may temporarily have directed water over these properties towards where it is accepted there was a larger watercourse, being at the bottom (most southern point) of 88 Adams Road. This may have been infrequent and may have been flowing only in winter.

[56] Mr Harris pointed to Fiona Harte’s notes from the search warrant executed on 20 February 2020, which commented that the “open channel” at 90 Adams Road “contained no water”, although she suggested that it could be an intermittent stream when assessing certain threshold criteria. Mr Harris submitted the absence of any running water is important when contrasting this with other cases, and when considering the proximity of ‘splash erosion’ to open waterways.

[57] EBL did not agree that the environmental effects caused by the lack of sediment controls could be described as ‘moderate’. Mr Harris submitted that every case must be assessed on its facts; it would be wrong for the Court to accept that all sediment risks are equal in the eyes of the law. He urged the Court to adopt an objective view of where this land disturbance occurred, and the true distances from major waterways and streams, together with the risk of sediment release (from wet weather or otherwise).

[58] EBL maintained that, during the period between October and February, there was no obvious and constant running water, and for much of the period of the alleged

offending there was, in fact, no rainfall across this outer reach of the catchment area. Mr Harris highlighted that the Council’s own expert gave evidence that, by 20 February 2020, the earthworks were stabilised from erosion and grassed. He submitted that, when contrasted with other cases, the true assessment for the likely environmental effects (over the period of offending) is more properly described at the lower end, and (as is often the case) there is no quantifiable assessment of any direct environmental impact.


[59] EBL accepted that even if actual damage to the environment does not occur, the potential risk of that harm is still relevant.7 Mr Harris submitted, however, that the distances from actual established waterways are significant.

[60] Mr Harris submitted that EBL’s images of the completed works, with all grassing complete, show that the final result of the work across these properties was professional.

Mr Climo’s submissions


[61] Ms Macnab, on behalf of Mr Climo, did not make direct submissions as to the environmental effects of the offending. She did, however, take issue with the reclamation offence, stating there is a degree of discomfort in the fact that the charge refers to the intermittent stream as a river. Ms Macnab submitted the waterway is best described as a seasonal overland flowpath and does not, therefore, meet the definition of a river in the Act.

[62] Further, Ms Macnab submitted that while the Court considers potential risk, that does not negate taking into account factors that exist which minimise that risk. She agreed with EBL that on the property there was a considerable distance to a significant waterway. She highlighted that the works were undertaken during summer, and there was no significant rainfall; that the water comes from runoff; and that

7 Counsel referred to Auckland Council v Brett Wallen Contracting Ltd [2020] NZDC 13655 at

[42] where the Court quoted the following from Waikato Regional Council v Archer DC Hamilton CRI-2013-019-004591, 8 April 2014: ...even if actual damage to the environment does not occur, if the potential for it to occur can be categorised as an effect of high probability or of low probability with a high potential impact, this can have a bearing on the level of fine imposed. ...

90 Adams Road is near the top of a hill, which significantly reduces risk relating to the work on that property. Ms Macnab submitted that far less rain means that any potential risk was always going to be at the lower end and that this is a runoff situation rather than a big river, putting risk at the lower end.

Evaluation


[63] First and foremost, my assessment of environmental effects is informed by the information contained in the agreed summary of facts. From that summary it is clear that, when Council officers visited 90 Adams Road (23 October 2019), there were “no erosion and sediment controls present over the entire area of the earthworks” and “a section of the exposed fill had slipped down the slope and there was evident cracking”. A further inspection, on 20 November, showed that, aside from stockpiling fill and constructing a sediment pond, there were no erosion and sediment controls on site. On 3 December that state of affairs continued. On 4 December, an inspection revealed that the earthworks at 90 Adams Road extended into 88 Adams Road, and that the exposed area of earthworks had been stripped of much of the previous vegetation. On 9 December, earthworks continued and there were “no erosion and sediment controls in place”. On 20 February 2020, Council officers noticed some mulch had been laid down, but that further erosion had occurred and no erosion and sediment controls were in place.

[64] The adverse cumulative effects of uncontrolled sediment entering our waterways are well known and accepted by the Court. Taken on an individual, site- by-site basis, the extent of sediment discharge may be argued to be minimal, having little effect. That, however, ignores the accumulation of sediment in the waterways, and the fact that it is a serious problem as it can have adverse effects on water quality and stream habitat. I find the environmental effects of this offending to be moderately adverse.

[65] There remains the matter of the environmental effects of the reclamation. Having pleaded guilty to the reclamation of a river, I do not accept Ms Macnab’s submissions challenging the status of the intermittent stream and submitting it was not

a river. Mr Climo agreed to the summary of facts, and there was no suggestion from Ms Macnab that a disputed facts hearing was required.


[66] I find the environmental effects of the stream reclamation to be moderately adverse. There has been a permanent loss of the intermittent stream habitat, a blocking of fish passage, and potential fish fatalities.

Culpability

Efficient Bobcats


[67] Mr Collins submitted that EBL’s offending was highly careless. He highlighted that EBL is an experienced earthworks contractor that identifies as having nearly 60 years combined experience in the industry. It is expected that an experienced, professional company of this calibre would be operating strictly in accordance with applicable rules, and would fully comply with abatement notices issued by the Council. Mr Collins noted that EBL has been infringed on three other occasions for non-compliance with abatement notices relating to a different site.

[68] Mr Collins addressed EBL’s claim that there were sediment controls on the site at one time. He noted that the Council could find no evidence of that, and when inspections were carried out in October and December 2019 there was a near absence of any sediment controls, despite the issue being raised with EBL’s director in October 2019. He submitted that in declining to attend an interview, Mr Cox and EBL lost an opportunity to explain what sediment controls were in place at the site.

[69] Mr Harris accepted that, in the area of business EBL is involved with (earthworks), environmental protection measures must be priorities. He did, however, emphasise that the Best Practice Guidelines for Erosion and Sediment Control (GD05 – 2016/005), and the relevant District Plan, both contemplate and acknowledge that “land disturbance” is an essential prerequisite for the development of urban land, and it may not always be possible to entirely prevent sediment entering waterbodies.

[70] Mr Harris submitted that EBL’s involvement with earthworks and land disturbance at these properties stems from attempts to remedy earlier work undertaken

by another earthworking business (AC Diggers Ltd) started in winter 2017. The standard / quality and the scale of the earthworks being undertaken in 2017 was a cause for concern for Council officers, and a number of issues were raised with Mr Climo and AC Diggers Limited. Mr Harris advised that EBL became involved from about March 2018,8 when it was approached to undertake remedial works to unstable and poorly completed work. He submitted that, looking back, EBL and the owners undertook work of a remedial nature that incrementally grew bigger as more work and stabilisation was required. Given the history from 2017 onwards, EBL accepted that, perhaps, it ought to have eventually pushed the owners to consider a resource consent, but the reality is that the works progressed on both properties to improve the work originally undertaken, and that work was known to Auckland Council.


[71] Mr Harris submitted that, although adequate erosion and sediment controls may not have been in place during the Council visits and across the period of the alleged offending as charged, throughout the bulk of the earlier works there were sediment controls in place across both sites, including sediment ponds, basic hay bales and other measures to minimise erosion/sediment. These measures may have been basic, but EBL maintained they were in place and broadly aligned with the ESC procedures in D1.2 of GD-05 as “soil and surface stabilisation practices”. Mr Harris noted that there was no prosecution evidence that these steps were not in place.

[72] Mr Harris, however, accepted that there was a failure to install and maintain adequate erosion and sediment controls throughout the works, and that more could have been done. He advised that there were plans for erosion and sediment control processes, but they were not implemented as hoped due to weather. EBL accepted that it had obligations as a contractor to implement adequate erosion and sediment controls across both properties throughout the work.

[73] Mr Harris highlighted that, following receipt of the abatement notice, Mr Cox requested a one-week extension to allow works to be undertaken, but that request was denied. He submitted that EBL had identified a safety risk and made a specific request for additional time. The Court was asked to take this into consideration when fixing

8 Submissions for EBL, dated 18 February 2021, at [16].

a starting point for the breach of abatement notice, because it could not be said that there was any flagrant disregard of compliance with it.


[74] Mr Harris reminded the Court that the GD-05 Best Practice Guidelines for Erosion and Sediment Control specifically sets out a section on “Safety” that references the Health and Safety at Work Act 2015, and the expectation for those carrying out erosion and sediment control work to ensure that workers and others are not exposed to health and safety risks from the work site.9 EBL accepted that it could, perhaps, have investigated or implemented more basic hay or mulch based controls, but maintained that the stability issues identified in the abatement notice more properly required heavy earthworking (and ponding), in conjunction with erosion and sediment controls, placing real tension on EBL as to compliance.

[75] Mr Harris submitted the prosecutor’s framing of EBL’s conduct as highly careless failed to acknowledge the request for additional time, or the site challenges being faced by the time Council officers were on site.

[76] Mr Harris submitted that the extremely dry weather during much of the period of offending is important for two reasons.10 First, hydro seeding or grassing of the earthwork area could not adequately protect the disturbed soil with the lack of rain at the time; EBL has an invoice for the straw mulch/seed/fertiliser for Adams Road in mid-December 2019. Secondly, during the period between December and February there was, effectively, no flowing water through the properties at all – either as overland flow or catchment area. This meant the risk of sediment being taken away “downstream” was non-existent, and perhaps only relevant to the very bottom of 88 Adams Road (if at all).

[77] Mr Harris submitted EBL has learned from the compliance tensions it faced and, in the event that another abatement notice were issued, it would take more formal compliance steps in the future, and more quickly.

9 GD-05, C1.8.2.

10 After the hearing, Mr Harris submitted rainfall data for 1 December 2019-20 February 2020 and asked I take judicial notice of the lack of rainfall at that time. In response, Mr Collins does not dispute that

– he noted, however, that the period of offending commenced in October 2019 and included a period of heavy weather, which the defendants relied on as a reason for the delay in installing sediment controls.

[78] I accept that EBL was brought onto 90 Adams Road around March of 2018 to remediate works that had been undertaken by AC Diggers Ltd. The previous works had raised concerns, and a warning was given to Mr Climo about inadequate sediment control, among others. It is clear from the record of the Council’s visit in October 2019 that there were no erosion and sediment controls; there had been a large slip and piles of topsoil were present. An EBL digger was on site. Following that visit, Mr Cox for EBL was advised of the Council’s concern about the volume of earthworks and the lack of erosion and sediment controls.

[79] Abatement notices were issued in November 2019 to the property owners of 90 Adams Road (including Mr Climo) and to EBL, requiring that earthworks cease and that best practice sediment controls be installed. Mr Cox for EBL requested an extension of time to install the works because of poor weather and safety concerns. That request was denied as EBL had been advised some weeks prior of the need for the works. Despite the abatement notice, Council inspections revealed that works continued into early December without erosion and sediment controls. It was also noted that works had extended to 88 Adams Road and a stream at that address was covered, and possibly piped.

[80] The 4 December inspection was followed by the issuing of abatement notices to the owner of 88 Adams Road and EBL requiring that earthworks cease. Works continued with no erosion sediment controls present. A further inspection in February 2020 revealed that no controls were present.

[81] Mr Harris said that, while erosion and sediment controls were not in place during Council visits, throughout the bulk of the earlier works there were controls in place across both sites. I am bound, however, by the Agreed Summary of Facts, which demonstrates, in respect of EBL’s work on site, that there were no erosion and sediment controls in place. Further, by its guilty plea it accepts that it had failed to install and maintain best practice erosion and sediment controls.

[82] While EBL’s stated role was one of remediation, I find that it did not take adequate steps to comply with the requirements of the AUP(OP), the Act and the abatement notice. As an experienced contractor, it should have known that it needed

to proceed with caution. It did not, choosing to undertake further work and filling at 90 Adams Road – appearing to pick up where AC Diggers had left off. It then ignored the directions of Council officers and the requirements of abatement notices to continue with the works. I note its explanation regarding compliance with the abatement notice. However, it was open to it to appeal the notice and request a stay. It did not do that. Abatement notices require compliance – breaches of abatement notices are serious matters in and of themselves. Abatement notices are instruments available to local authorities to ensure that parties to whom they are issued comply with their environmental obligations. If they may be ignored with impunity their effectiveness is blunted.11 I find that EBL was, therefore, highly careless.

JR Climo


[83] Mr Collins submitted that the culpability of Mr Climo is “fairly high”, and could be described as reckless or at least highly careless. Mr Climo was the owner of 90 Adams Road at all the relevant times, and he engaged the two earthworks contractors. He submitted that, overall, permitting the continuation of non-compliant earthworks – notwithstanding several warnings from the Council since 2017 – indicated that Mr Climo was reckless. By October 2019, a sizeable area (of approximately 3,600m2)12 had been earthworked, and a section of watercourse reclaimed, resulting in the interruption of the stream channel.

[84] Mr Collins submitted that the precautions taken to prevent discharges were clearly inadequate, particularly having regard to the scale of the earthwork activity and the presence of a watercourse. He highlighted that Council staff observations during five inspections of the sites during the period of the offending confirm either the complete absence of sediment controls or their inadequacy.

[85] Ms Macnab submitted that, in assessing Mr Climo’s culpability, only work that was undertaken at 90 Adams Road should be considered as being relevant. Mr Climo was not responsible for any work undertaken at 88 Adams Road; that work was undertaken by EBL and consented to by the property’s owners. Ms Macnab

11 Manawatu-Wanganui Regional Council v NZL Forestry Group Ltd [2020] NZDC 22557 at [18]. 12Agreed Summary of Facts at [41] records 3600m2 of earthworks were carried out at 90 Adams Road and 3803m2 at 88 Adams Road.

highlighted that the slip and extensive works with respect to the runoff in heavy rain were situated at 88 Adams Road. She submitted that there are no allegations that Mr Climo pretended to be the owner of 88 Adams Road or acted as agent. Because EBL undertook work on both properties, the individual responsibility has not been clearly identified.


[86] Ms Macnab highlighted that Mr Climo is not facing any charges regarding any abatement notices. She submitted that it is wrong to say that Mr Climo ignored matters; he took matters back to the contractors each step of the way. Mr Climo relied on the statement made by EBL; EBL said they were only days away from spreading hay and grass seeding, and that would fix it and there would not be a problem. Further, EBL presented themselves as skilled experts in the field. Ms Macnab submitted that relying on someone who ought to be able to be relied on is not as negligent as employing a one-man contractor who does not hold themselves out as having skill in the area. Mr Climo was not at the site watching the trucks place soil; he relied on the contractor to follow the law. His reliance was reinforced by the fact that the work that was being undertaken was being done to a high standard.

[87] I find that Mr Climo was aware of the Council’s concerns with aspects of the earthworks from as early as 2017. While he engaged contractors to assist him, first AC Diggers then EBL, that did not absolve him of responsibility. Having been made aware that there were no erosion and sediment controls, he should have required his contractor to install them. He had a further opportunity to require that of EBL when the abatement notices were served. It is also clear to me that Mr Climo was aware of the proximity of the works to the stream from mid-2017, and also the rules of the AUP(OP) regarding the extent of earthworks, and the need for engineering and geotechnical management.

[88] It is understandable that Mr Climo would place reliance on EBL to undertake the works in a professional and responsible way. However, he was alerted on a number of occasions to the issues at the properties and did not take any steps to address them. That is not acceptable. He could have contacted the Council (but did not) to ascertain what needed to be done if he was unclear, and also sought advice from the Council as to when works could recommence. I find that he was careless in the way in which he

approached and permitted earthworks and the resulting reclamation of the stream at 90 Adams Road.


Starting point


Prosecutor’s submissions


[89] Mr Collins referred to six cases in support of his submission regarding an appropriate starting point of $50,000 each for EBL and Mr Climo. Those cases were Auckland Council v Dean Hu, Mender Construction Limited & Tao Ma (Hu)13, Greater Wellington Regional Council v Roil (Roil)14, Wellington Regional Council v Judgeford Heights Ltd (Judgeford Heights)15, Auckland Council v Brett Wallen Contracting Ltd (Brett Wallen)16, Bay of Plenty Regional Council v G and J Vercoe Contracting Ltd (Vercoe Contracting)17, and Wellington Regional Council v All Excavation & Reinstatement Services Ltd (All Excavation)18.

[90] Mr Collins accepted that none of the cases he cited are on all fours with the present. I agree, but note that some have elements which assist with the setting of a starting point:

13 Auckland Council v Dean Hu, Mender Construction Limited & Tao Ma [2020] NZDC 10297. 14 Greater Wellington Regional Council v Roil DC Porirua CRI-2009-091-4827, 11 August 2011. 15 Wellington Regional Council v Judgeford Heights Ltd [2015] NZDC 629.

16 Auckland Council v Brett Wallen Contracting Ltd [2020] NZDC 13655.

17 Bay of Plenty Regional Council v G and J Vercoe Contracting Ltd [2018] NZDC 13812.

18 Wellington Regional Council v All Excavation & Reinstatement Services Ltd dc Wellington CRI- 2014-091-1676, 20 November 2014.

smothered and reclaimed. Silt fences were installed but were ineffective, and the fill was not adequately stabilised. There was only limited damage to plant and aquatic life due to the intermittent nature of the stream. The defendants proposed extensive rehabilitation of the stream. The Court found that the defendants obtained a significant commercial benefit because they avoided paying commercial fill operators to dump their own fill, and accepted this was a significantly aggravating factor. The Court assessed the global starting point as $90,000 split between the defendants; the company director being assessed as more culpable.


(c) In Judgeford Heights the defendants were a company that owned the property where the offending occurred and its sole director. They each pleaded guilty to permitting the reclamation of a riverbed. The Court concluded the offending was deliberate or reckless; the defendants did not set out to breach the RMA but did not turn their minds to consent requirements. The Court noted that parties involved in land filling for commercial gain can be expected to be aware of RMA requirements, and this was a significant factor in setting the starting point. The Court set a global starting point of $50,000 to be split equally between the company and its directors.

(d) In Brett Wallen the defendant was sentenced on three offences: contravening a regional rule by failing to install adequate sediment and erosion controls during earthworks, contravening a district rule by utilising non-clean fill, and placing a structure (pipes) in a riverbed in breach of the AUP(OP). The company was an experienced earthmover. The Court accepted that there was a high likelihood of adverse effects resulting from the piping of the stream, including preventing fish passage and bed erosion over time. The failure to install sediment controls would also likely cause sediment laden water to enter the receiving environment causing adverse effects. The Court concluded the defendant was highly careless. The Court set a global starting point of $45,000 and imposed an enforcement order requiring the defendant to carry out remediation of the stream.

(e) In Vercoe Contracting there were two charges of carrying out earthworks without a resource consent. The Court held that the earthworks were

undertaken without the necessary erosion and sediment controls. The Court found a fairly high level of culpability, and noted that an experienced operator should have considered more carefully what could have been done without a resource consent and within the limits of what could be expected to be imposed on steep land and gullies. The starting point was $20,000 for each offence.


[91] Mr Collins submitted that starting points for cases involving reclamation or depositing of fill near or into streams generally sit between $40,000 and $90,000. A separate starting point for contravention of an abatement notice is normally adopted which, depending on the nature of the contravention, would normally attract a starting point of at least $20,000.

[92] Mr Collins submitted EBL’s contravention of the abatement notice offence in the present case is not as serious as the breaches of the abatement notice in Hu due to the number of charges in that case and the ongoing nature of the breaches, which ultimately required an enforcement order. However, he noted that EBL also faces contraventions of s 9(2) in relation to both sites over a longer period than that specified for the abatement notice offence.

[93] Mr Collins submitted Mr Climo’s role in the offending has some similarities to Judgeford Heights, although that case only involved one s 13(1)(e) offence whereas Mr Climo is also charged with permitting a contravention of s 9(2) RMA.

[94] Mr Collins submitted general deterrence is a relevant factor for both defendants; the Court must ensure that it is not worthwhile for those conducting earthworks to avoid compliance with the RMA.

[95] He submitted that specific deterrence is an important factor in relation to EBL given its prior history of breaching abatement notices on three occasions at another property. Further, as an experienced commercial earthmoving company it ought to comply strictly with RMA requirements, which apply to its business activities.

[96] Mr Collins acknowledged that Mr Climo does not have a prior record of non- compliance. He submitted, however, that the Court may consider specific deterrence

as a relevant feature, given that Mr Climo permitted an escalation of non-compliant earthworks at 90 Adams Road despite the warnings from Council staff in 2017. Unfortunately, this resulted in the reclamation of part of the intermittent stream that Council staff had brought to his attention in 2017.


[97] Mr Collins submitted that, for EBL, a starting point of $30,000 is appropriate for the abatement notice charge, and a starting point of $15,000 each is appropriate for the failure to install sediment controls at 88 and 90 Adams Road. This would lead to a combined starting point of $60,000. Mr Collins submitted this would reflect the aggravating features, including EBL’s culpability (highly careless), the need for specific deterrence, and the repeated disregard for abatement notices. Mr Collins noted that the Court may consider that there is some overlap between the charges such that an adjustment is needed for totality. He submitted that a global starting point of

$50,000 should be imposed to achieve the purposes and principles of the Sentencing Act.


[98] Mr Collins submitted that Mr Climo’s offending warrants a starting point in the vicinity of $50,000. He submitted this would reflect the aggravating features, which include the damage to the intermittent stream, the reckless nature of his offending given the early warnings received, and the failure to respond appropriately to Council interventions.

[99] Mr Collins submitted that if the Court is minded to consider converting the penalty to community work, the Court may consider the recent case of Auckland Council v Fitzgerald19 in which a fine of $22,500 was converted to 120 hours community work. Mr Collins submitted that if the Court agrees that a resulting fine of $35,000 is appropriate then a sentence in the order of 200 hours of community work would be more appropriate.

19 Auckland Council v Fitzgerald [2019] NZDC 25991.

Defendants’ submissions

Efficient Bobcats


[100] Mr Harris submitted that the global starting point suggested by Mr Collins for the EBL offending is higher than justified when taking into account other factual matters and mitigating factors. He referred to three cases which, he submitted, involve more major failures by earthworkers and owners and resulted in more significant risk to the receiving environment than here. Those cases were: Auckland Council v McCabe and Macrod Contractors Ltd (McCabe and Macrod)20, Auckland Council v Adams Landscapes Limited (in liquidation), Aviation Country Club and Clark (Adams Landscapes)21, and Waikato Regional Council v Hold the Gold Ltd (Hold the Gold).22 Those cases did not assist me as they involved quite different circumstances and issues to the ones before me.

[101] Of the cases referred to by the prosecution, Mr Harris accepted that there are some similarities with Brett Wallen. He submitted there are significant differences too especially regarding the piping of a stream and the impact of that on the environment and fish movement, and the need for enforcement orders for remediation. Mr Harris noted that as the second sentencing decision on enforcement orders reveals, there were also issues with the nature of fill used and the presence of fibrous asbestos fragments.23

[102] EBL does not agree that there is any particular need for deterrence. Mr Harris submitted the consequences of these various prosecutions have had a significant

20 Auckland Council v McCabe and Macrod Contractors Ltd DC Auckland CRI-2010-004-000366, 15 April 2011. Fill delivered to site without adequate sediment controls; sought to reclaim part of a wetland. Four charges: earthworks in breach of a rule in the Plan (sediment control), permitting deposit of clay and soil in a stream contrary to the Plan, permitting discharge of sediment to a watercourse and contravening an abatement notice by failing to remove fill from the stream. Starting points adopted were $40,000 for Mr McCabe (manager-owner) and $25,000 for Macrod Contractors Ltd at [72].

21 Auckland Council v Adams Landscapes Limited (in liquidation), Aviation Country Club and Clark DC Auckland, CRI-2012-092-2437, -2435, - 2443, 6 November 2012. Potentially contaminated soil from earthworks was removed to other properties. Starting points adopted were $25,000 for Adams Landscapes, $60,000 for the receiving property owner and $25,000 for another receiving property.

22 Waikato Regional Council v Hold the Gold Ltd DC Hamilton CRN-14019501673, - 74, 19 December 2014. Involved clearing of a farm drain. The sharemilker engaged an earthworking contractor to clear a stream as part of a planned native replanting scheme to improve water quality. Resulted in downstream sediment damage. Erosion and sediment controls required by the relevant Plan were not installed or maintained. Starting point adopted was $30,000.

23 Auckland Council v Brett Wallen Contracting Ltd [2020] NZDC 20315.

impact on EBL. In addition to the anxiety arising from the search warrants and the Police, and the Category 3 criminal charges faced, Mr Cox (EBL’s director) had also faced prosecution (now withdrawn). Mr Harris submitted the consequences of non- compliance have been well and truly understood by the business. He recorded that EBL has incurred significant costs from the involvement of solicitors, and there have been mandatory appearances in this Court requiring the company to face the consequences of the failures in the charges identified. Mr Harris submitted that a conviction, together with an appropriate fine, will be a sufficient deterrent on the company together with those factors identified above.


[103] Mr Harris submitted that the Court may choose to separate the abatement breach charges from the two sediment and erosion charges. He submitted intentional and knowing breaches of abatement notices occur and it may assist in other cases to contrast the sentencing purposes for this type of breach distinct from erosion sediment control matters. Approached in this way, Mr Harris submitted that the starting point for the abatement notice offence should be between $10,000 - $20,000. He pointed out that, although the offending alleged was from 20 November 2019 onwards, by the time the Council exercised the search warrants the sediment control work had been done.

[104] In terms of the erosion and sediment control matters, EBL disagreed that the offending for each property should attract a $15,000 starting point; $30,000 in total. Mr Harris submitted the offending was contemporaneous and works were carried out in a similar manner, meaning that it would not be fair to treat the offending in totality. Given the true environmental risk of sediment release or damage to major watercourses (especially when contrasted with other cases where water testing has been done truly “downstream” in a major waterway), Mr Harris submitted a joint starting point of no more than $20,000 would be appropriate.

Mr Climo


[105] Ms Macnab disputed that Brett Wallen is at all similar to the facts of this case. She referred to the asbestos fragments that were found in the landfill in Brett Wallen. She noted that asbestos fragments are an extreme health risk that may cause cancer

and asbestos risk stays with the property. Ms Macnab submitted the asbestos was an aggravating factor and put Brett Wallen into a different category.


[106] Ms Macnab submitted McCabe and Macrod is a useful starting point. She noted the case occurred after the 2009 uplift in penalties and that Mr McCabe caused significant sediment to be released into a sensitive area, so in that sense Mr McCabe caused a lot more harm. Ms Macnab submitted that while some uplift is in order, if McCabe had the same facts as here he should have received a lesser penalty.

[107] Ms Macnab submitted Mr Climo is not responsible for permitting work at 88 Adams Road; he may have caused the issues that needed addressing at 88 Adams Road, but he did not give permission for the work. Ms Macnab contended the wording of the offence requires the offender to have given permission; in other words, the statutory intention was to punish those in control.

[108] Ms Macnab submitted the prosecution have asked the Court to take into consideration charges that are not before the Court in setting a starting point. The Court can only fine Mr Climo for the offences he is facing. Counsel’s view is the Court should take a total view of Mr Climo’s offending then apply the discounts.

[109] Ms Macnab submitted that it cannot be said Mr Climo did nothing; he took steps but they were the wrong steps. In terms of community perception, Ms Macnab contended that Court cannot ignore that others who were equally and more responsible have not been charged.

[110] Ms Macnab submitted that once all discounts are taken off a fine of $15,000 or 80-hours community service would be appropriate.

Starting point


[111] In all the circumstances of this case, I determine the following:

EBL


(a) a starting point of $20,000 for the breach of the abatement notice. This is a serious charge and the starting point should reflect that;
[112] Allowing for some overlap between the charges, I adopt a global starting point of $45,000.

Climo


(a) A starting point of $35,000 in respect of the charges he faces.

[113] I allow for the fact that Mr Climo engaged professionals to assist with his earthwork project but record that, as owner, he has ultimate responsibility for what occurs on his land, and for compliance with statutory requirements, regional and district plans and abatement notices.

Aggravating and mitigating features


Opportunity to attend interviews


[114] Both defendants declined the opportunity to attend formal interviews to offer an explanation for the offending.24 Mr Collins submitted that while the Court may not necessarily treat this as an aggravating feature in its own right, the defendants lack of cooperation does not warrant any reduction in the appropriate penalty. Mr Harris submitted that the defendants’ decision to decline the opportunity to attend the formal interviews was in no small part a result of the perceived heavy-handedness of the Police search warrants executed across the properties.

[115] I decline to treat this matter as an aggravating factor.

Prior good character


[116] Neither defendant has prior convictions under the RMA.25

24 Agreed Summary of Facts at [50].

25 Agreed Summary of Facts at [53].

Efficient Bobcats


[117] Mr Collins pointed to EBL’s compliance record and submitted in those circumstances no good character discount is warranted and the Court should ensure that any fine imposed achieves specific deterrence.

[118] EBL has been issued three infringement notices under the RMA (dated 6 May 2019, 26 September 2019 and 25 September 2020) for breaching abatement notices dated 3 December 2018 relating to the operation of an unconsented industrial yard at 945 Haruru Road, Wainui.26 Mr Harris submitted that the other infringement notices relate to EBL’s own yard and operation site at a different address. Those issues arise from the only other compliance issue faced by EBL since its incorporation in April 2010. Mr Harris submitted the Court could apply a five percent discount for a first offence for EBL.

[119] I determine for EBL that a discount of three percent for prior good character is appropriate, recognising past infringement notices but noting a lack of previous convictions.

Mr Climo


[120] Mr Collins submitted Mr Climo may be entitled to a discount for prior good character due to a lack of prior convictions. He submitted, however, that the Court may consider that Mr Climo’s disregard for the abatement notices, which aggravated the offending, removes or reduces any entitlement to a discount. Mr Collins submitted that if a discount is given, it should be the in the range of 2.5 – 5 percent.

[121] Ms Macnab made a number of submissions about discounts. In effect, she submitted that Mr Climo should be entitled to a discount as this is his first offence; she did not accept that his actions disentitle him to a good character discount; Mr Climo erred by relying on expert advice from a well-known contractor; it is clear he ought to have made his own enquiries. Ms Macnab also pointed to prosecutorial decisions not to charge others who, she submitted, were in the same position as Mr Climo. I have

26 Agreed Summary of Facts at [51]-[52].

no information about those persons and will not consider that matter further. Ms Macnab submitted a discount of five percent would be appropriate.


[122] For Mr Climo, I allow a discount of five per cent recognising his lack of previous convictions. I do not take into account his disregard for the abatement notices

– that matter has been considered in determining culpability.


Remorse

Efficient Bobcats


[123] Mr Harris submitted that EBL has expressed remorse in various ways, including the guilty pleas entered on 29 October 2020. He accepted that the prosecution have some reservations about the true remorse of EBL and no further or additional credit was expressly sought as a distinct category of mitigation.

[124] I allow no discount to EBL for this matter.

Mr Climo


[125] Ms Macnab submitted Mr Climo feels very remorseful for what has happened, and described in detail the extent of his remorse. She pointed to Mr Climo paying for the neighbour’s pipes, and that in doing so there was a direct financial cost to make good. Further, difficulties Mr Climo is having in dealing with claims from his ex- partner were referred to. Ms Macnab submitted that Mr Climo always heeded warnings; he changed contractors; he changed to a well-known and well-respected firm. Ms Macnab submitted a five percent discount would be appropriate.

[126] Mr Collins submitted that no discount is warranted for Mr Climo for feelings of remorse. What matters is whether the offender has expressed remorse in a meaningful way such that it would qualify as extraordinary remorse, which goes beyond the remorse inherent in a guilty plea. Mr Collins submitted that Mr Climo was not cooperative in any way with the Council investigation or compliance response, and there has been no tangible expression of remorse.
[127] I allow no discount to Mr Climo for this matter. I have seen no remorse that goes beyond the remorse inherent in a guilty plea. I have no evidence of the significance of the pipes that were paid for or to how they relate to the stream reclamation.

Remediation


[128] Mr Harris submitted EBL could qualify for a discount of between five to ten percent for remediation. He accepted that this is possibly a challenging category of credit, but noted that by the time the search warrant was executed (the last day of alleged offending) EBL had completed the required erosion controls and grassing to prevent further harm. The sites were finished, unlike in other cases where further work or enforcement orders are required. The expert noted the site is stable. Remedial work can be considered under s 10(1)(e) of the Sentencing Act 2002. Mr Harris submitted a discount may serve as a wider policy credit for those who carry out work, even where it is perhaps expected to be done.

[129] Mr Collins submitted it would be counter to orthodox sentencing principles for EBL to receive a five-ten percent discount for belatedly complying with its legal obligation four months after the failure to install sediment controls was initially brought to Mr Cox’s attention.27 Mr Collins submitted the suggestion that the works were “remedial” is simply not borne out by the facts.

[130] Ms Macnab submitted the Court should reduce the sentence in accordance with s 10(1)(e). Ms Macnab highlighted that the work done by EBL was done to a high standard; the remedial work made the site stable. She submitted that the work was done and that the work rectified the issues; this goes a long way to neutralising the fair and very real community concerns with contractors breaching regulations. Ms Macnab submitted a reduction of 10 – 15 percent would be appropriate.

[131] Mr Collins disagreed with Ms Macnab’s submission. Mr Collins submitted the work undertaken involved meeting the minimum legal obligations and this occurred belatedly. There were ongoing breaches of the rules and abatement notices prior to

27 Agreed Summary of Facts at [27].

this. Mr Collins submitted that in the circumstances, no additional discount is warranted.


[132] I have seen no evidence that the sites were remediated in a way that differs to that work for which EBL was contracted to undertake and was paid. I have no evidence of Mr Climo remediating the sites, other than in the way originally planned. I allow no discount for that matter.

Double penalty


[133] Ms Macnab suggested that Mr Climo, as the landowner, has suffered personally from these issues. The house is on the market and potential buyers have had to be notified of the issues with the site. She submitted that, because Mr Climo may suffer loss as a result this seems a bit of a double penalty; and is a matter justifying a five per cent discount. I do not accept that submission. Decisions regarding earthworks and continuing with them were made by Mr Climo; he breached certain legal requirements. That can have consequences outside of criminal proceedings but does not justify a discount in these circumstances.

Guilty plea


[134] It is accepted the defendants pleaded guilty and are entitled to a discount of up to twenty five percent. I agree with a discount of twenty five percent.

Ability to pay fine


[135] Mr and Mrs Climo have separated. Ms Macnab advised that, until property negotiations are settled, it will affect Mr Climo’s ability to pay any fine. She submitted Mr Climo is eligible for a community-based sentence, and due to his unique skills the community would be well served.

[136] Mr Collins maintained that a fine is the most appropriate penalty, unless the Court has clear information before it indicating that Mr Climo lacks sufficient means. He submitted that such information has not been offered; it appears Mr Climo has a good income and means to pay a fine off over time.
[137] At the hearing, I allowed Mr Climo seven days to file an affidavit as to means in terms of s 42 of the Sentencing Act. I did not receive an affidavit, and proceed on the basis that, once Mr Climo has completed his property negotiations, he will be in a position to pay a fine. In those circumstances I do not think a community sentence is appropriate.

Outcome


[138] I have adopted the two-step sentencing methodology outlined by the Court in

Moses v R.28


[139] Accordingly, EBL is convicted and ordered to pay a fine of $32,400. In terms of s 342(2) of the RMA, I order that 90 per cent of the fine be paid to Auckland Council.

[140] Mr Climo is convicted and fined the sum of $24,500. I allow 12 months for Mr Climo to pay the fine in instalments.

Judge MJL Dickey

District Court Judge

Date of authentication: 04/08/2021

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

28 Moses v R [2020] NZCA 296 at [45] to [47].

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