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District Court of New Zealand |
Last Updated: 30 April 2021
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IN THE DISTRICT COURT AT HASTINGS
I TE KŌTI-Ā-ROHE KI HERETAUNGA
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CRI-2020-020-002413
VIA AVL [2021] NZDC 4744
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HAWKE’S BAY REGIONAL COUNCIL
Prosecutor
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v
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DANIEL SANKEY
Defendant
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Hearing:
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12 March 2021
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Appearances:
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NB Graham for the prosecutor L Burkhardt for the defendant
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Judgment:
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19 April 2021
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SENTENCING DECISION OF JUDGE MJL DICKEY
[1] The defendant has pleaded guilty to two charges that on 7 August 2020, at 34 Kohupatiki Road, Clive, he discharged a contaminant (smoke and its constituents) into the air; first in breach of Rule 20 of the Hawke’s Bay Regional Resource Management Plan; secondly in breach of Rule 19c of the Plan.
HAWKE’S BAY REGIONAL COUNCIL v DANIEL SANKEY [2021] NZDC 4744 [19 April 2021]
[2] The maximum penalty for each offence is a fine not exceeding $300,000 or a term of imprisonment of 2 years. Counsel agreed that a fine is the appropriate sentencing outcome, but were not agreed on the starting point for the fine. Ms Graham proposed a starting point of $18,000 and Ms Burkhardt submitted a starting point of
$14,000 was appropriate.
Background1
[3] The property at 34 Kohupatiki Road, Clive (the property) falls under the Hastings Airshed. The property is operated by Greenleaf Nurseries. Greenleaf Nurseries is owned by Mr Sankey and his wife.
[4] The property is adjacent to several houses and next to the Kohupatiki Marae.
[5] Mr Sankey has previously been served with an infringement notice for burning prohibited items on the same property in 2016.
The offending2
[6] On 7 August 2020 a fire was lit at the property.
[7] The fire consisted of greenwaste, but also included a number of prohibited items including plastic plant pots, polystyrene, plastic, coated wire, treated timber and composite timber boards.
[8] Two enforcement officers employed by Hawke’s Bay Regional Council (HBRC / the Council) noticed smoke coming from the property and attended the fire. Mr Sankey extinguished the fire upon request.
[9] Mr Sankey later advised that the fire had been lit by his employees.
1 Agreed Summary of Facts, paragraphs 1-2, 12-14.
2 Agreed Summary of Facts, paragraphs 1, 3-5, 13.
Statutory Framework3
[10] The discharge of smoke from this fire was an offence against s15(2A) of the Resource Management Act 1991 and was a breach of both Rule 19c and Rule 20 of the Hawke’s Bay Regional Resource Management Plan.
[11] Outdoor fires are regulated by the Hawke’s Bay Regional Resource Management Plan. In order to control air quality over the winter period, outdoor fires are generally deemed non-complying. Rule 19c applies and provides:
Except as provided for in Rules 19, 19d, 19e, 20 and 20a the discharge of contaminants into air in the Hastings and Napier Airsheds from outdoor burning during the months of May, June, July or August.
[12] Outdoor fires are further regulated to prohibit the burning of certain items at any time of year. Rule 20 applies and provides:
Except as provided for in Rules 19 and 20a the discharge of contaminants into air arising from the burning in the open, and/or in a small scale fuel burner of:
[13] The HBRC website contains information in relation to burning including what you can and cannot burn. A person can put their address into the online tool to see whether their property falls within an Airshed that limits what times of year outdoor burning can occur.
3 Agreed Summary of Facts, paragraphs 6-8, 11.
Sentencing
[14] 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 are 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
[15] The environmental effects of the offending are outlined in the Agreed Summary of Facts and in a memorandum from Dr Kozyniak, Principal Scientist – Climate and Air, at the Council.5 Dr Kozyniak provided a generic summary of the effects of the open burning of prohibited items, such as those found in the fire at the property.
[16] The low temperature burning and smouldering conditions typical of open burning promote the formation of many toxic and potentially harmful chemicals through incomplete combustion of materials. The less than ideal burning conditions typical of open fires, and the associated incomplete combustion of materials, produces a visible plume of particulate matter. Particulate matter from open burning is of the order of 20 to 400 times those of a controlled combustion source, and where a fire has a poor supply of oxygen, or is smouldering, the particulate emissions are greater as are the production of dioxins and furans.
[17] The combustion products from items found in the fire, for example plastics, and treated timber, are likely to be strong irritants, asphyxiants and potential carcinogens. The burning of prohibited items such as the items in this fire are not only
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, paragraphs [9]-[10]; and Memorandum from Dr Kathleen Kozyniak to Steve Smithers dated 30 October 2020, subject: Fire at 34 Kohupatiki Road, Clive.
associated with nuisance dense smoke but also emissions of hazardous air pollutants known to cause cancer or serious health effects and that persist in the environment and accumulate in body tissue when ingested. These include PAHs (polycyclic aromatic hydrocarbons) and dioxins. Polystyrene decomposes on burning, producing styrene fumes.
[18] Ms Graham submitted that this type of burning adds to the poor air quality that the Airshed rules are trying to address. She also noted the property’s proximity to Clive (some three km) and that it is adjacent to several houses and next to the Kohupatiki Marae.
[19] Ms Burkhardt submitted that the fire contained mostly vegetative material, and relatively minimal amounts of prohibited items. She noted the fire was extinguished around lunchtime, having been lit in the morning. And finally, despite the property’s proximity to houses and the local marae, that there is no evidence that the smoke spread to any great degree or that there were direct effects on other people.
[20] I find that, while there is no evidence of the effects of this fire in this location, I accept Dr Kozyniak’s generic summary of the effects of open burning of prohibited materials. I find that this fire would have contributed to the adverse cumulative effects of open fires burning prohibited materials in the area.
Culpability
[21] Ms Graham submitted that the lighting of the fire was undoubtedly deliberate, and was ultimately the responsibility of Mr Sankey. While he knew the fire was to be lit, he stated that he relied on his employees to ensure there were no prohibited items in it. It is clear that the fire did contain greenwaste, but also other items that were not able to be burned at any time of the year, including plastic plant pots, polystyrene, plastic, coated wire, treated timber and composite timber boards.
[22] Ms Graham noted that, even without the prohibited items the fire was illegal, as it was not able to be lit on the property at any time. Ms Graham submitted that the Council website is clear in terms of the information it contains in relation to what can and cannot be burned and when that may occur. A person simply has to put their
address into the online tool to be advised whether their property falls within an Airshed.
[23] Ms Graham submitted that the actions of Mr Sankey were reckless, and that the offending was not inadvertent given that there were checks that could have been made.
[24] Ms Burkhardt submitted that Mr Sankey’s culpability can be characterised as “unintentional but careless or negligent” but not reckless as submitted by the prosecutor. She submitted that Mr Sankey did check with Fire and Emergency, who advised that a fire permit was not required to light a fire in the open air. She advised that during early July, Mr Sankey made that enquiry as he had observed a grower down the road burning greenwaste, as well as fires burning over in the Ngaruroro River area. He confirmed that he was told it would be all right at this time of year, but was advised to look at the “Check it’s all right” website.
[25] Ms Burkhardt acknowledged that the Fire Permit and Hazard Coordinator emailed Mr Sankey and noted:
There may, however, be local council bylaws you need to adhere to regarding air pollution or other environmental factors, so please ensure you contact your local council before proceeding (read attached pdf to make sure you are not within any council-designated airshed zones).
[26] Ms Burkhardt advised that, following that enquiry, Mr Sankey talked with his employee and asked him to check for and remove any plastic pots or other waste materials and wait for suitable weather conditions before lighting the fire. I was provided with written statements from the employee with whom Mr Sankey spoke, and the employee who actually lit the fire. They confirmed his policy of not allowing the burning of plastic and other waste, and that staff knew (and took steps) to avoid it.
[27] Mr Sankey accepted his error in not contacting the Council. I am advised that he also had a mistaken belief from seeing similar greenwaste fires that he could also light a fire. He did not understand the precise boundaries of the Hastings Airshed, and was therefore unaware that properties on the north side of the road are not within it. He accepted his responsibility for not knowing what rules applied to his site.
[28] Finally, Ms Burkhardt advised that Mr Sankey had a burning protocol in place which the staff knew about, but on this occasion did not strictly adhere to; that Mr Sankey has formalised the burning protocol and issued a written policy to staff; and that he is also investigating the use of a large-scale mulcher to dispose of all greenwaste from the property.
[29] In light of advice from Fire and Emergency about the need to check with the Council before lighting a fire and the fact that he did not check, I find that Mr Sankey was highly careless when he made the decision to light the fire. I stop short of placing his culpability higher than that, given that I accept he advised his employees of the need to remove any plastic pots or other waste materials.
Starting point
[30] In support of her submission that the starting point in this case should be
$18,000, Ms Graham referred to three cases: Hawke’s Bay Regional Council v Hastings Demolition Limited (Hastings Demolition),6 Hawke’s Bay Regional Council v Santo Drainage and Contracting Limited (Santo)7 and Bay of Plenty Regional Council v Davies (Davies).8
[31] Hastings Demolition involved a fire lit by employees of a demolition company to burn native timber stripped during the course of clearing a site. The defendant claimed that casual employees had put toxic material on the fire. A starting point of
$17,000 was adopted in that case. In Santo, a fire was lit by the employee of a land contractor, included prohibited items and was in breach of Airshed rules. A starting point of $18,000 was adopted.
[32] Ms Graham referred to Davies, where a starting point of $20,000 was adopted in respect of a fire disposing of demolition materials. An initial fire had been lit, Council officers attended and provided advice regarding items within the fire. While the defendant was not on site, and despite having the Council visit brought to his attention, he lit a second fire that day that contained prohibited items.
6 Hawke’s Bay Regional Council v Hastings Demolition Limited [2020] NZDC 20030.
7 Hawke’s Bay Regional Council v Santo Drainage and Contracting Limited [2020] NZDC 4414.
8 Bay of Plenty Regional Council v Davies [2020] NZDC 15519.
[33] Ms Graham accepted that this case is not as serious as the Davies case, and submitted it is closer to Santo. She submitted that the fact the fire was lit during the Airshed prohibition elevated it above Hastings Demolition.
[34] For her part, and in summary, Ms Burkhardt submitted that the offending in this case is on a par with Santo, slightly above Hastings Demolition and not as serious as Davies.
[35] She submitted that the offending in Davies was considerably more serious than the present, pointing to two separate fires, direct impacts on neighbours and the defendant’s defiance of the rules.
[36] She submitted that Santo and Hastings Demolition are more serious, but to a lesser degree, noting that in Santo the fire was visible 6km away, and there was a densely populated residential community 300-400m away. In this case she noted that there was no evidence that the smoke spread beyond the property and the surrounding area is less sensitive, being largely rural or semi-rural.
[37] Ms Burkhardt referred to three other local cases that concerned burning of prohibited items; Hawke’s Bay Regional Council v Colville (Colville),9 Hawke’s Bay Regional Council v Steevens (Steevens)10 and Hawke’s Bay Regional Council v Cavell (Cavell).11
[38] Ms Burkhardt noted that in Colville, there were two fire piles comprising building demolition waste that included asbestos. Steevens and Cavell concerned the same fire lit to dispose of demolition waste, although the defendant in Cavell was also fined for an earlier vegetation and rubbish fire on the same property (a charge attracting a $6,000 starting point). She noted that both defendants in those cases made some enquiries with the local councils but were unaware of the applicable rules.
9 Hawke’s Bay Regional Council v Colville [2019] NZDC 2477 (starting point $16,500).
10 Hawke’s Bay Regional Council v Steevens DC Hastings CRI-2016-020-003295, 24 May 2017 (starting point $12,000).
11 Hawke’s Bay Regional Council v Cavell [2017] NZDC 12180 (starting point $12,000).
[39] In opposing the prosecutor’s suggested starting point of $18,000, Ms Burkhardt submitted that is too much considering the differences in the cases. She submitted that, with no evidence of the smoke spreading to a great extent, no complaints being received and damage to the environment being described in generic terms, there are more similarities with Colville, but noted the fact that the fires lit in Colville included asbestos raised that case above the present. She submitted that a starting point in this case should be $14,000.
[40] I acknowledge that Mr Sankey went part of the way to making proper enquiries with regard to the lawfulness of the proposed fire in that he contacted Fire and Emergency. He did not, however, follow through and complete the necessary enquiries with the Council. The need to make those enquiries was made clear to him by Fire and Emergency. I note that he did take steps to ask his employees to ensure that no plastic or other waste material was on the burn pile; and that he also had a policy as to burning that he has since updated.
[41] The fact remains that a fire was lit when such fires were not permitted, and that the fire contained prohibited items. The effects on the environment of such fires are clear and not in dispute. The property is in proximity to some residences and the local marae. In those circumstances I determine that an appropriate starting point is
$17,000.
Personal aggravating and mitigating factors
[42] Ms Graham noted that Mr Sankey had previously been issued an infringement notice for burning prohibited items on the same property four years earlier. In light of that, it could be expected that he should be careful in subsequent burnings. She submitted that I could apply a modest uplift to reflect that previous incident, and at the very least no discount should be applied for any claim of an impeccable previous record.
[43] Ms Burkhardt submitted that the only enforcement action Mr Sankey has faced is the infringement notice, and that that is not a conviction. She noted that Mr Sankey has accepted responsibility and, while having a burning protocol in place at the time, has since issued an updated policy and is investigating options as to whether there is
a need for any future burning of greenwaste. She noted that in Hastings Demolition and Santo, formal warnings had previously been issued, and five per cent and seven per cent discounts were still applied. She submitted that a five per cent reduction is appropriate here.
[44] In all the circumstances I am prepared to allow a three per cent discount for good character in this case. I also allow 25 per cent discount for an early guilty plea. I convict Mr Sankey and fine him $12,240.00. I direct that 90 per cent of the fine be paid to the Council pursuant to s 342(2) of the Act.
Judge MJL Dickey
District Court Judge
Date of authentication: 19/04/2021
In an electronic form, authenticated pursuant to Rule 2.2(2)(b) Criminal Procedure Rules 2012.
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