Southland Regional Council v Yorke [2021] NZDC 3798 (1 March 2021)

Last Updated: 12 March 2021

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

CRI-2019-025-002190

[2021] NZDC 3798

SOUTHLAND REGIONAL COUNCIL

Prosecutor v

BRADLEY YORKE Defendant

Hearing:	1 March 2021
Appearances:	T J McGuigan for the Prosecutor D J C Russ for the Defendant
Judgment:	1 March 2021

NOTES OF JUDGE B P DWYER ON SENTENCING

[1] Mr Yorke, you appear for sentence on two charges brought by Southland Regional Council. One is a charge of discharging a contaminant onto land, in breach of s 15(1)(d) of the Resource Management Act 1991 (charging document ending 0671) and the second is a charge of unlawfully using land in breach of s 9 of the Resource Management Act 1991 (charging document ending 0673).

[2] You have pleaded guilty to both charges. Section 24A of the Sentencing Act 2002 which requires a restorative justice process is not applicable. No suggestion has been made that a discharge without conviction is appropriate. You are convicted on both charges. You have heard me make some comments about the proposition you

SOUTHLAND REGIONAL COUNCIL v BRADLEY YORKE [2021] NZDC 3798 [1 March 2021]

should be convicted and discharged and I will formally record those comments as part of these sentencing notes.

[3] You and your wife are trustees of a family trust which owns a rural property situated on the Wyndham-Mokoreta Road. In late 2018 you were approached by Marshalls Excavating Limited (a cartage contractor which had to dispose of waste material from the demolition of what is described as a trade/industrial site in Gore) and asked if clean fill from the demolition could be deposited on the property. The summary of facts records that you advised the contractor that he could deposit as much clean fill as he liked on the property. Apparently the contractor made some inquiry, and you said that you were “allowed to tip stuff onto the property”. I assume that was referring to clean fill, obviously.

[4] I am advised by counsel that under the proposed Southland Water and Land Plan a maximum of 500 cubic metres of clean fill per calendar year may be deposited onto land without consent but obviously that refers to clean fill.

[5] On 24 July 2019 Regional Council officers inspected your property. They found that a gully in the property was being used as a dumping site. They considered that the amount of material deposited exceeded 500 cubic metres (I have no further information on that matter of volume) and also contained non clean fill items such as plastics, wooden items, metals and tyres. It appears from the photographs that I have seen that some of these were visible.

[6] Following the Council officers’ visit you commissioned a report from Opus Consultants which identified contaminants in the fill. This report has been provided to the Council which says the report has assisted its investigations into this matter and saved the Council a considerable amount in costs.

[7] It is common ground in these proceedings that the environment affected by the offending was limited to the immediate vicinity of the fill area. Contaminants contained in the fill evidently included heavy metals, polycyclic aromatic hydrocarbons (which I understand can contain oil, coal and incineration waste) and asbestos. A number of these materials have the potential to leach into groundwater but

there is no suggestion that has happened in this case. I am proceeding with the sentencing on the basis that there has been no proven adverse environmental effect as a result of these items being put into soil and that any potential effect as a result of leaving them in the soil will be addressed by their removal. I understand that is to be done pursuant to a resource consent which you have applied for or alternatively an enforcement order which counsel are to submit to the Court.

[8] The Council contends that your conduct exhibited a degree of carelessness in that you failed to ensure that the material deposited on to your property was in fact all clean fill. I understand from the submissions made on your behalf that it is accepted that you could have made further enquiries in that regard.

[9] It is apparent that the demolition contractor and (I assume) the cartage contractor were aware that some of the material they were working with on the demolition site would be contaminated material. It was intended that contaminated material would go to a proper landfill site with non-contaminated material coming on to your property. That was the intention. But if you had made inquiry as to just what property the fill was to be taken from, you may have been aware of the need for care to make sure that no contaminated material got mixed up with the material coming to your place. I think you should have made enquiry in that regard. It is reasonable for people who allow deposition of waste material onto their property to do two things:

• Firstly, as I have commented, they have to make a level of inquiry sufficient to establish the nature of the material to be dumped, including where it has come from so that there was no risk of any inappropriate material being included;
  
• Secondly, I think they need to check the filling operation from time to time, to ensure that only appropriate material was being deposited. It has been suggested that was impractical in your case as I understand that the dumped material was being compacted as it went in.
  

[10] However, when the Council officers went to the property on 29 July it was apparent to them that non clean fill items had been included in the fill. The photographs appended to the summary suggest that if you had been checking, that

would have been apparent to you as well. The summary of facts records Mrs Yorke’s advice to the Council officers that about a hundred loads of material had been dumped. I consider that there must be degree of carelessness on your part in not checking, at least some time during that process, to make sure that what was going in there should have been.

[11] I have had regard to the various cases that counsel have referred me to. Section 8(e) of the Sentencing Act 2002 records the general desirability of consistency with appropriate sentencing levels in respect of similar offenders committing similar offences in similar circumstances. I have looked at the various cases cited to me. There are some points of similarity and some points of difference. That is usually the case. Penalty starting points in the cases referred to me go up to $40,000, with a number of discounting factors involved.

[12] In identifying a starting point in this case, I am going to adopt the same approach as counsel and fix global amount for both offences, which are really different aspects of the same offending. The difficulty that I have is in determining a figure which appropriately marks what I consider to be a reasonable degree of carelessness in not adequately checking the material to be brought on to the property (either before or during the dumping operation) but at the same time acknowledging that the adverse environmental effects that have resulted are minimal to nil, although there remains potential (through leaching) for something to happen in that regard. I consider that the $25,000 figure suggested by the Council adequately factors in those counterbalancing considerations.

[13] I also consider that the degree of carelessness involved makes conviction and discharge inappropriate. As I have commented to you, as the landowner you had ultimate responsibility to ensure that the deposition operation was done legally. I think you effectively abrogated that responsibility to the contractor who was a person you had done business with before and whom you knew and trusted but ultimately, as landowner, the old saying is that the buck stopped with you.

[14] There has been some discussion about appropriate discounts from starting point. I note that the charges were filed on 20 December 2019, with the first

appearance set for February 2020. Obviously the case process was interrupted by COVID-19. There were ongoing discussions between counsel and, prior to a telephone conference with the Court on 26 January 2021, you intimated the guilty pleas nearly a year after the first call. Even recognising the COVID-19 delay and counsel interaction, I do not think it can be contended that the guilty plea was entered at the first reasonable opportunity. I concur with counsel for the Council that a 20 per cent reduction from starting point adequately reflects the timing of the guilty plea. Further discounts are sought on a number of bases.

[15] The first is that a discount is available because you cooperated with the Council by providing a soil analysis report from Opus Consultants and by offering to give evidence in the trial of two alleged co-offenders. You have signed a formal statement and the Council considers that your evidence will be helpful in establishing the prosecution case. The Council submits that a further 25 per cent discount is appropriate to reflect that and additionally that there should be a reduction of five per cent on account of past good character. So what we have got is a discount, on the Council’s calculations, of $5,000 for guilty plea, $7,500 for cooperation and past good character, which totals $12,500 all up giving an end sentence of $12,500.

[16] There is then a discussion about a further discount on account of steps that are to be taken to remediate the area where the dumping took place. I am told that you incurred liability for accounts of $26,000 with Opus, (although not all of that has yet been paid). It is thought that it is likely to cost $30,000 plus resource consent costs to remediate the land but I am not going to give any additional credit for those matters which seem to me to constitute putting right things that should not have happened in the first place.

[17] I have considered all of these matters. I have some reservations as to the extent of credits to be given for cooperation and past good character. I consider that the combination of all of the identified discounts so substantially reduce the end penalty as to not adequately reflect the degree of culpability in this case, which relates to the failure to check before allowing the deposition of waste material and during the deposition exercise.

[18] I am going to allow a discount of $3,750 for cooperation and past good character together with the $5,000 guilty plea reduction giving an end penalty of

$16,250 which I will apportion equally between the charges. Accordingly, in each case you are convicted and on each charge fined $8,125. In addition you will pay solicitor costs of $56 and Court costs $130 on each.

[19] I make an order pursuant to s 342 Resource Management Act 1991 that the fine, less 10 per cent Crown deduction, is to be paid to Southland Regional Council.

[20]

Finally, pursuant to s 339(5) Resource Management Act 1991, I will make an enforcement order (which counsel have agreed ought appropriately be made) in a form agreed by counsel and submitted to the Court within 20 working days. In the event of any disagreement between counsel as to the form of the enforcement order, the Court will determine the appropriate form. Issue of the enforcement order will complete the sentencing process.

B P Dwyer

Environment/District Court Judge