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District Court of New Zealand |
Last Updated: 13 August 2021
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I TE KŌTI-Ā-ROHE
KI TĀMAKI MAKAURAU
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CRI-2020-044-000984
[2021] NZDC 9608 |
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AUCKLAND COUNCIL
Prosecutor
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v
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RONALD BANK
and
ALBANY EARTHMOVING & LANDSCAPING LTD
Defendants
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Hearing:
Last Judicial event:
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29 April 2021
Memorandum from prosecutor dated 14 May 2021 responding to
defendants’ memorandum of 7 May 2021.
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Appearances:
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DJ Collins for the prosecutor
A Braggins and T Gorman for the defendants
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Judgment:
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4 August 2021
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SENTENCING DECISION OF JUDGE MJL DICKEY
[1] This prosecution relates to earthworks carried out by the defendants at 473 and 477 Ridge Road, Paremoremo, Auckland (the sites) between 17 September 2019 and 21 November 2019. The defendants each face two charges alleging breaches of ss 9(2) (representative charges) and 13(1)(e) of the Resource Management Act 1991 (RMA).
AUCKLAND COUNCIL v RONALD BANK [2021] NZDC 9608 [4 August 2021]
[2] The maximum penalty the first defendant faces is a fine not exceeding
$300,000 or imprisonment not exceeding two years. The second defendant faces a maximum penalty of a $600,000 fine. Counsel agreed that a fine is the appropriate sentencing response to the offending, and it is on that basis that I proceed. No applications for discharge without conviction have been made and I do not consider discharges without conviction to be appropriate.
[3] For the prosecution, Mr Collins submitted that a global starting point of
$70,000 is appropriate in relation to all charges. For the defendants, Ms Gorman submitted that a global starting point of $30,000 is appropriate.
[4] A Summary of Facts was agreed.
Defendants and the sites1
[5] Ronald Bank is the sole director and 62.5% shareholder of Albany Earthmoving and Landscaping Limited. The other shareholder is Mr Bank’s wife. Mr Bank is the sole director.
[6] Albany Earthmoving and Landscaping Limited provides earthmoving services. Its registered office is 132 Postman Road, Albany.
[7] The site at 477 Ridge Road, Paremoremo comprises 8,412m2 and contains two dwellings and related sheds and other small buildings. It is zoned Rural - Countryside Living in the Auckland Unitary Plan (Operative in Part) (AUP(OP)).
[8] The site at 473 Ridge Road, Paremoremo comprises 1.0029 hectares and contains one house and related sheds and other small buildings. It is also zoned Rural
- Countryside Living in the AUP(OP).
[9] The wider landscape is a mix of large lifestyle blocks to the west and continuous Significant Ecological Area (SEA) to the south and east. The eastern boundary of 473 Ridge Road is next to the Paremoremo Scenic Reserve, which
1 Summary of Facts, [4]-[8].
comprises 94.9 ha of contiguous SEA vegetation with the ecosystem being composed of Kauri, Podocarp, Broadleaved Beach forest (WF12, Endangered) and Manuka, gumlan grass tree – Machaerina scrub/sedgeland (WL1.2, Critical Endangered).
[10] The sites contained one identified watercourse commencing within 477 Ridge Road and flowing in a south eastern direction. The watercourse is identified as 78225 in Auckland Council’s GeoMaps River Number layer and is an unnamed tributary of the Paremoremo Creek.
Statutory framework2
Auckland Unitary Plan (operative in part) (AUP(OP))
[11] Both regional and district rules apply to land disturbance activities on the sites.
[12] Standard E11.6.2 requires compliance with certain standards for regional land disturbance activities; which include the implementation of best practice erosion and sediment control measures. Those measures must be installed prior to the commencement of land disturbance and maintained until the site is stabilised against erosion.
[13] Standard E12.6.2 requires compliance with certain standards for district land disturbance activities, which include that land disturbance must not result in any instability of land or structures at or beyond the boundary of the property where the land disturbance occurs.
[14] Activity Table E3.4.1 (A1) provides that any activity in, on, under or over the bed of lakes, rivers, streams and wetlands not otherwise provided for in the Activity Table is a discretionary activity and therefore requires a resource consent.
[15] Activity Table E3.4.1 (A49) provides that any new reclamation or drainage, including filling over a piped stream, requires resource consent as a non-complying activity.
2 Summary of Facts, [9]-[15].
[16] Contraventions of any of the above standards or rules would require a resource consent from Auckland Council.
[17] No resource consents were sought or granted in relation to the work carried out at 473 or 477 Ridge Road.
Earthworks3
August 2019
[18] During August 2019 the owner of 477 Ridge Road received a flyer in his mail offering free fill and earthmoving services by Albany Earthmoving and Landscaping Limited, and listed phone number contacts for Mr Bank.
[19] On 25 August 2019, Mr Bank met the owner of 477 Ridge Road and offered to contour the land and create an access way down the hill for free. There was no contract and an understanding no money would pass either way between the parties. Mr Bank informed the owner that no consents were required and proceeded to use spray paint to mark entrance ways and hazards.
[20] On 26 August 2019, earthworks activities began at 477 Ridge Road. The earthworks involved trucks arriving throughout the day and the fill being moved around the site using a digger and a bulldozer.
September 2019
[21] On 17 September 2019, a Council Response Officer visited 477 Ridge Road and spoke with the owner. The officer observed a digger onsite undertaking earthworks at the property. The officer asked the owner whether he had consent, but was advised that the contractor had said that no consent was needed.
[22] Following the visit the owner sent the officer an email, which stated that the purpose of the work was:
3 Summary of Facts, [16]-[41].
(a) to create a vehicle access to enable him to maintain all areas for weed control; and
(b) replanting of native trees and shrubs to encourage the birds and the bird corridor from Tiritiri Matangi to the Waitakere Ranges.
October to November
[23] At the end of October the earthworked area at 477 Ridge Road was mulched.
[24] Sometime between late October and 20 November 2019 a slip occurred in the earthworked area of 477 Ridge Road, which caused some fill to enter 473 Ridge Road. Mr Bank then undertook further earthworks at 473 Ridge Road.
November 2019
[25] On 20 November 2019, the Auckland Council received a complaint from a member of the public that trucks were lining up on Ridge Road to tip soil at 477 Ridge Road. The complainant was concerned due to the proximity to the Paremoremo Scenic Reserve.
[26] On the same day a Council Response Officer attended 477 Ridge Road and observed earthworks underway at the property.
[27] On 21 November 2019, an investigation began. A Desktop search of Council records for 477 Ridge Road confirmed there was no resource consent for earthworks.
[28] At 11.40am on 21 November 2019 Council officers attended the site at 477 Ridge Road. On arriving the officers observed two trucks at the site which were in the process of tipping soil.
[29] As the officers approached the earthworks, an officer recognised Isaak Hakopa, whom he knew had done work in the past for NEL. He asked Mr Hakopa what he had been doing on site and Mr Hakopa stated: “I have been here about three weeks now and we are building a road to access the pine trees”.
[30] The Council officers carried out an inspection of the earthworks and made the following observations at 477 Ridge Road:4
- The earthworks started at the edge of the flat north part of the property where the dwellings were and extended all the way down the hill in a southerly direction and into the pine trees.
- The size of the earthworks was estimated to be 80 metres by 30 meters, a total area of 2,400m2.
- The earthworks consisted of mainly clay fill that had been compacted down the hill creating a flatter, smoother site and access to the pine trees.
- Pieces of concrete were observed in the fill both with and without steel reinforcement (the defendants are not charged with bringing non-cleanfill as defined in the AUP(OP)).
- There was no evidence of sediment controls at 477 Ridge Road. There was some remaining mulch seen on the northern edges of the earthworked area.
[31] At the lowest part of the hill of 477 Ridge Road, the officers observed that the earthworks continued into the pine trees creating an access and covered the small stream over the complete 45x7 metre access way. The officers were not aware at the time that this pine tree area was part of a different property, 473 Ridge Road. The following observations of the earthworks at 473 Ridge Road were made:5
- Water flowing through the fill that was being diverted down the hill into the trees.
- Tracks formed indicating a digger had been deployed and moved fill in the area.
- At the end of the earthworks a dam had been recently formed by the earthworks causing water to pond. In this small pond there was an eel in very shallow water that was alive but unable to move away from the immediate area due to the earthworks.
- On the other side of the dam the natural stream continued through the overlay area and into the Paremoremo Scenic reserve.
- Beyond the pond was a 10 metre wide sediment control fence that was pinned on top of the ground. Water was observed flowing directly under the fence.
- There were no other erosion or sediment controls.
[32] Photographs were taken of the work undertaken at the sites.
4 Summary of Facts, [29].
5 Summary of Facts, [30].
[33] After returning to the office, the Council officers realised that the observations regarding the filled in stream related to the neighbouring property, 473 Ridge Road. The owner of 473 Ridge Road was contacted. The owner advised the Council officer that his reason for the earthworks was to undertake a small forestry operation on his property. The Compliance Investigator also received a call from the owner of 477 Ridge Road, who also said the earthworks on his property were to provide access for a forestry operation on 473 Ridge Road.
[34] On 22 November 2019, the Council issued abatement notices under s322(1)(a)(i) of the RMA requiring all earthworks to immediately cease at both 477 and 473 Ridge Road. The abatement notices were delivered to the owners of both properties and to Mr Bank.
December 2019
[35] On 3 December 2019, the District Court granted search warrants to the Council under s334 of the RMA to gather evidence at 473 Ridge Road and 477 Ridge Road, including by carrying out a survey and an ecological assessment of the sites.
[36] On 5 December 2019, the search warrants were executed at 477 and 473 Ridge Road. Council officers attended, together with employees from Fluker Surveying and a Freshwater Ecologist.
[37] In executing the warrant and during the visit, Council officers observed some mulching had occurred around the filled in stream, and that there were hay bales on either side of the sediment control fence.
[38] On 16 December 2019, Fluker Surveyors provided a report to the Council regarding the extent of recent earthworks carried out at the sites. The report concluded that, at 477 Ridge Road, 11,621m3 of recent earthworks had been undertaken covering an area of 4,395m2. At 473 Ridge Road, the recent earthworks covered an area of 638m2.
[39] The Freshwater Ecologist identified a pool at the end of the earthworks on 473 Ridge Road, where a short fin eel was observed in poor health due to the restricted
shallow pool with no available habitat either up or immediately downstream of the pool. The eel was noted gasping for air during the site visit. The shortfin eel was captured and relocated to a stream within the same catchment.
Interviews6
[40] The owners of 473 and 477 Ridge Road and the first defendant cooperated with Council enquiries and attended formal interviews with the Council.
[41] The owner of 477 Ridge Road confirmed during the interview that the two defendants had undertaken the earthworks at his property following his response to the flyer. The work onsite, including the depositing of fill was managed by the defendants and there was no contract, just a verbal understanding. The owner said he relied on the defendants as professional earthmovers and believed their explanation that no resource consent was required for the proposed work.
[42] The owner of 473 Ridge Road confirmed during the interview that the defendants had undertaken the earthworks at his property to establish a zig zag access way in order to undertake forestry and level out the area around the pond. He was not home when the earthworks were undertaken and was not able to confirm whether fill had been deposited at his property. He stated that there was a slip of earth from the earth deposited at 477 Ridge Road to 473 Ridge Road, which he believed may have resulted in the fill entering his property.
[43] Mr Bank cooperated with the Council’s enquiries and attended a formal interview. During the interview, which was prior to taking legal advice, Mr Bank confirmed:7
- the defendants had undertaken the earthworks at 477 Ridge Road.
- the defendants had undertaken the earthworks at 473 Ridge Road.
- Mr Hakopa was employed by Albany Earthmoving.
- the work at the sites was primarily undertaken by Mr Hakopa under direction of Mr Bank.
6 Summary of Facts, [45]-[48].
7 Summary of Facts, [48].
Sentencing principles
[44] The purposes and principles of sentencing contained in ss 7-8 of the Sentencing Act 2002 are relevant to this proceeding. The High Court, in Thurston v Manawatu- Wanganui Regional Council,8 has helpfully outlined the key considerations in sentencing under the RMA. All of the purposes and principles of sentencing may be relevant insofar as the particular case engages them; the Court must also recognise the purpose of the RMA, being to promote the sustainable management of natural and physical resources. In relation to pollution sentencing, the Court has summarised the key considerations as being: the offender’s culpability; any infrastructural or other precautions taken to prevent discharges; the vulnerability or ecological importance of the affected environment; the extent of any environmental damage; deterrence; the offender’s capacity to pay a fine; disregard for abatement notices; and cooperation with enforcement authorities and guilty pleas.
Environmental effects9
[45] The prosecution and defendant jointly engaged an independent ecologist, Mark Lowe of Morphum, to review the material of the Council’s Freshwater Ecologist and the defendant’s Freshwater Ecologist and form an opinion on the following:
8 Thurston v Manawatu-Wanganui Regional Council HC Palmerston North CRI-2009-454-24, -25, -27, 27 August 2010.
9 Summary of Facts, [43] and [44].
(a) the ecological value of the intermittent stream affected by the reclamation (prior to the works taking place); and
(b) the magnitude of environmental effects caused by the earthworks, which resulted in the reclamation of the intermittent stream (prior to any remediation taking place).
[46] Mr Lowe concluded that:
- (a) the existing ecological value of the intermittent stream at 473 Ridge Road prior to the works taking place was ‘Low’;
- (b) the magnitude of effect resulting from the earthworks at 473 Ridge Road prior to any remediation taking place is ‘Moderate’;
- (c) after equating the ecological value and magnitude of effect, the overall level of effect of the earthworks would be ‘Low’.
[47] Mr Lowe’s assessment was qualified as follows:10
This assessment is limited by the level of information provided and the inability to undertake an ecological assessment prior to the impacts occurring; that is, the assessment is qualitative and partly based on assumptions. The assessment is finely balanced, and it is not inconceivable that with more site information prior to the impact occurring that a conclusion of a ‘Moderate’ ecological value could not be reached.
[48] In addressing the extent of environmental effects, and having reviewed the assessments undertaken by each of the ecological specialists for the Council and for the defendants, Mr Lowe stated:11
On the site scale, before considering temporal factors, and upon reviewing the relevant information provided, I would consider the magnitude of the effects of the activity in reclaiming the watercourse to be that of a ‘major loss or major alteration to key elements/features of the existing baseline conditions such that the post-development character, composition and/or attributes will be fundamentally changed’; that being a ‘High’ magnitude of effect (EIANZ, 2018).
In considering the EIANZ guidelines, I do not consider the effects to be that of total loss or loss from the site all together, given there is an extent of channel
10 Summary of Facts, Tab 7, Report of Mark Lowe dated 13 April 2021 at page 5.
11 Summary of Facts, Tab 7, Report of Mark Lowe dated 13 April 2021 at page 6.
remaining onsite to the east of the earthworks. Therefore, I do not consider the magnitude to be ‘Very High’. I also consider that the change, at the site scale, is a fundamental one as opposed to a partial one, and therefore do not consider the magnitude is ‘Moderate’ (at the site scale and excluding temporal considerations).
However, when considering both the temporal factors and wider spatial context I would lessen this magnitude of effect to one of ‘Moderate’ impact. That is:
[49] Both parties accepted Mr Lowe’s conclusions.
[50] I was advised that the stream has regenerated to an extent, and now forms three separate stream channels running over the filled area. The parties have agreed upon a remediation plan. Following completion of the plan, including the monitoring and maintenance period, the site at 473 Ridge Road should maintain a similar ecological function as it had prior to the works; that the level of effect will be “Low”.12
[51] Ms Gorman made reference to the shortfin eel that had been found in a pool at 473 Ridge Road. She observed that Mr Bank acknowledged that there was a little pond on the site that existed prior to works commencing, in which the eel could have lived. She acknowledged that it had been disturbed by the earthworks but observed that it had been successfully relocated. Ms Gorman also referred to a report provided by a landscape architect engaged by the owner of 477 Ridge Road that addressed matters relating to the watercourse/stream. I decline to take that report into account as the Agreed Summary of Facts addressed the matter of the watercourse/intermittent stream and the effects of the earthworks.
[52] In all the circumstances I am guided by the assessment of environmental effects outlined in the Agreed Summary of Facts. It is certainly clear that there was an intermittent stream located at 473 Ridge Road prior to the works taking place and that its ecological value has been characterised as ‘Low’. The magnitude of effect resulting
12 Summary of Facts, Tab 6, Joint memorandum of T Barnett and C Whiteley dated 1 March 2021 at [2.4] and [2.5].
from the earthworks and prior to remediation has been characterised as ‘Moderate’. Further, applying the EIANZ guidelines and equating the ecological value and magnitude of effect, the overall effect of the earthworks would be ‘Low’. I accept that assessment for the purposes of sentencing, but also take into account the fact that the short finned eel was left in a small localised pool with no ability to move to other water. Finally, I note that if the intended remediation works occur the level of effects would remain as Low.
Culpability
[53] The prosecution asserted that, overall, the offending of both defendants was at least reckless.
[54] Mr Collins submitted that both defendants have considerable experience in the earthmoving industry, with the company specialising in a broad range of earthmoving projects small and large.
[55] He also submitted that the defendants effectively had primary control and oversight of the filling activities at both properties, including what fill was brought to the site, what quantity, where it was deposited and what measures were taken to protect the environment. He also noted there was no written agreement with the owners as to the work to be undertaken, just an understanding that the end result would include an access road and some native planting.
[56] Mr Collins highlighted that a considerable volume of fill (at least 11,600m3 at 477 Ridge Road) had been delivered to the site, into a gully adjacent to a stream that is identifiable on the Council’s GIS system. He submitted that the defendants ought to have been well aware of the risks of the activity to the environment; he noted the presence of a sediment and erosion control fence albeit one that was not functioning properly, and submitted that made it clear the defendants knew there was a waterway that needed to be protected. With reference to Mr Bank’s interview, he submitted that Mr Bank understood the applicable rules for earthwork activities under the AUP(OP), and also that he was aware there was water flowing in 473 Ridge Road but did not consider it was a running creek. Finally, that he was also familiar with the resource consent process but considered it uneconomical.
[57] Mr Collins acknowledged that the defendants took limited steps to prevent sediment discharges, including mulching at 477 Ridge Road in late October 2019, the installation of one sediment control fence at 473 Ridge Road on 21 November 2019 and adding some mulch and hay bales around the sediment control fence at 473 Ridge Road that were observed on 5 December 2019. He submitted the measures fell well below what would have been expected for a large scale earthworks activity, particularly where fill had been deposited on a sloping site in the vicinity of an intermittent stream and a scenic reserve.
[58] He submitted that there is an important environmental objective in commercial earthmoving companies adhering to applicable standards; he observed the more significant the earthworks the greater the onus on the company and its management to ensure appropriate protections.
[59] In response, Ms Gorman disagreed that the defendants were reckless and asserted that they instead were careless. She noted that the defendants were originally undertaking permitted activities – and that accordingly no resource consents were required – giving some context to their advice to the property owner of 477 Ridge Road that no consents were required. She noted that a consent was only required if the works breached the permitted activity standards, and submitted that the defendants took steps to ensure that did not occur.
[60] In response to Mr Collins’ assertion that the presence of a sediment and erosion control fence made it clear that the defendants knew there was a waterway to preserve, she submitted that overland flowpaths will inevitably run to a watercourse, irrespective of whether it is nearby. She referred to Mr Bank’s statement that he understood the area between 477 and 473 Ridge Road to be a low-lying area with a little pond and no visible watercourse. She submitted that, by implementing a sediment and erosion control fence, the defendants were endeavouring to act responsibly.
[61] Ms Gorman submitted that it was difficult for Mr Bank to identify the presence of a stream, referring to freshwater ecologists Ms Barnett and Mr Whiteley in that regard and in support of her submission that Mr Bank’s actions were careless rather than reckless. As to Mr Bank’s comments that it would be uneconomical to proceed
with a resource consent application, she submitted that he was quoted out of context, and that the statement related to whether a consent should have been sought regarding the volume of earthworks exceeding permitted activity standards.
[62] Mr Collins submitted that the commercial motivation of the project is a significant aggravating factor. He submitted that, based on the first defendant’s own calculation of $40-$50 per six cubic metre truck,13 the filling brought to 477 Ridge Road alone (11,621m3) would have been worth approximately $77,473 - $98,841 in commercial tipping fees. He submitted that there was a disconnect between the objectives of the landowners and the defendants. The landowners sought to improve property access by establishing a track or road through their properties, and native planting in the case of 477 Ridge Road, whereas the defendants’ objective was to maximise the volume of fill deposited to the sites to save commercial tipping fees. He submitted this was a consequence of the defendants’ business model, which purports to offer “free” earthwork services but derives income from saving commercial tip fees that would have applied if fill was delivered to a purpose-built facility.
[63] Ms Gorman, in response, submitted that the defendants offer free earthwork services for a number of services in return. She submitted that they are legally entitled to conduct permitted activities adhering to the relevant performance standards, irrespective of whether they receive remuneration or not. She noted that, regardless of the volume of fill that was brought onto the sites, and the area it covered, the charges relate to insufficient stability and sediment controls and the filling in of a stream. She submitted that the defendants were not motivated by profit to disregard these standards, and took actions to manage the risks associated with the placement of the fill.
[64] I find that there were commercial benefits from the project for both the owners and the defendants, which adds to the seriousness of the offending.
[65] In the circumstances I place the culpability of both defendants as high. Each are experienced earthmoving contractors, and quite simply should have known better. The amount of fill that was brought onto 477 Ridge Road was considerable. It was
13 Prosecutor’s opening submissions at [7.23], referring to Agreed Summary of Facts, [48](e).
placed on a sloping site. The rules regarding earthmoving and the need to construct erosion and sediment controls are clear, and have been in place for some time. Both defendants should have been aware of those rules. At the least, a plan should have been prepared to address the way in which erosion and stability issues were to be addressed on this site and the neighbouring site. If the defendants had prepared a plan, the investigation necessary to support the required measures would, I have no doubt, revealed the existence of the watercourse at the base of 477 Ridge Road and located in 473 Ridge Road. The watercourse is identified in the Council’s Geo-maps river number layer, noted as an unnamed tributary of the Paremoremo Creek. Further, I find that the measures that were put in place – one erosion and sediment control fence and mulching – were manifestly inadequate.
Starting point
[66] In support of submissions on the starting point I was referred to a number of sentencing cases that counsel argued were comparable to this case.14
[67] Mr Collins placed primary reliance on Greater Wellington Regional Council v Roil (Roil). In that case the defendants were experienced earthmoving contractors undertaking work on a property part owned by a director. They were charged with three offences relating to failure to install adequate sediment controls, depositing a substance on a river bed and diverting water. Fill and material were placed into a stream bed and gully to form a large platform. The defendants submitted that the project was not “commercial” and was for the purpose of creating curtilage and garden areas for a future dwelling. The volume of fill was approximately 4,000m3. As a result of their activities a portion of an unnamed intermittent stream was 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
14 Greater Wellington Regional Council v Roil DC Porirua CRI-2009-091-4827, 11 August 2011; Wellington Regional Council v Judgeford Heights Limited [2015] NZDC 629; Auckland Council v Brett Wallen Contracting Limited [2020] NZDC 13655; Bay of Plenty Regional Council v G & J Vercoe Contracting Limited [2018] NZDC 13812; Wellington Regional Council v All Excavation and Reinstatement Services Limited DC Wellington CRI-2014-091-1676, 20 November 2014; Waikato Regional Council v Devon Park Limited [2018] NZDC 26396; Waikato Regional Council v Whakapona Farms Limited [2019] NZDC 15533.
the intermittent nature of the stream. The defendants proposed extensive rehabilitation of the stream.
[68] The Court found that the defendants obtained a significant commercial benefit because they avoided paying commercial fill operators to dump their own fill and that this was a significantly aggravating factor. It concluded the dumping was deliberate and involved the continuation of activities that had occurred some years prior. The Court found that the stream was a minor tributary, but that it did feed into another stream in which nationally threatened indigenous fish and aquatic plants had been recorded. It recognised effects as including filling activity that changed the physical character resulting in the reclamation of the stream and destruction of limited plant and aquatic life. It assessed the global starting point as $90,000 split between the defendants; the company director being assessed as more culpable.
[69] Ms Gorman submitted that the present case is considerably less serious than Roil, noting that the existing ecological value of the intermittent stream at 473 Ridge Road prior to the works taking place was low, as opposed to the stream in Roil which flowed into another waterbody containing nationally threatened indigenous fish and aquatic plants. She submitted that the Court had noted that the offending was an escalation of previous works undertaken, and the continuation of the depositing of the fill on the site was in breach of multiple enforcement actions taken against the defendants. She distinguished the commercial motivation in Roil from that in this case, noting that, here, the defendants were undertaking a permitted activity. She further observed that, in Roil, silt fences were installed after the Council visited, whereas in the present case the defendants ensured silt fences were on site at the commencement of the work, albeit that the defendants were careless as to their installation.
[70] Ms Gorman submitted that the gravity of the offending in this case is similar to that in G & J Vercoe Contracting Limited, Whakapona Farms (two charges relating to unlawful earthworks and excavation – starting point $45,000) and Brett Wallen Contracting (three charges relating to unlawful earthworks – starting point $45,000), save that in the G & J Vercoe Limited and Whakapona cases the receiving environment had a much higher ecological value.
[71] In G & J Vercoe Limited the defendant faced two charges of carrying out earthworks without a resource consent. The permitted activity standards related to slope degree, area and volume. There were two periods of offending. With regard to the second period of offending, the owner had refused access to the property to maintain erosion and sediment controls. The Court held that, in both instances, the earthworks were undertaken without the necessary erosion and sediment controls. The affected environment was the Kaituna River, which supports indigenous fish species as a habitat of threatened indigenous flora and fauna and has high cultural value. 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.
[72] In terms of the cases to which I was referred, each are quite different and the outcome depends on their unique circumstances. I therefore did not find any particular case more helpful than the others. What is clear, however, is the seriousness with which offending by a defendant who is experienced in earth moving or land development is viewed by the Court. In this case, I find that the defendants’ culpability elevates the significance of this offending. While the environmental effects have been assessed (after remediation) as low, the offending overall is serious. I consider it is appropriate, therefore, to set a global starting point of $70,000 in respect of the four offences.
Mitigating factors
[73] Mr Collins advised that the defendants do not have prior convictions. Reference was made to an employee of the second defendant having received an abatement notice at another site; however, I do not take that into account for the purposes of assessing any discount.
[74] Mr Collins also acknowledged that the defendants have developed an acceptable restoration plan to rehabilitate the stream bed to ensure long-term environmental effects remain low. The parties have submitted an enforcement order by agreement to determine that those works occur.
[75] Finally, Mr Collins acknowledged that both defendants pleaded guilty at an early stage and are entitled to a discount of up to 25 per cent.
[76] In addition to the mitigating factors Mr Collins outlined, Ms Gorman sought that I allow a five per cent discount for remorse, submitting that it need not be extraordinary to earn a discount, but does require something more than the bare acceptance of responsibility inherent in the plea. Tangible evidence needs to be shown, for example an attempt to remedy the situation. Ms Gorman referred to the remediation plan, and advised that Mr Bank has indicated that the cost to him and his company to implement the remediation plan will be in the vicinity of $8,000-$10,000. I was also advised that Mr Bank has obtained consent from the property owner of 473 Ridge Road for access to the property to complete the remediation works.
[77] Finally, I was provided with a letter from Mr Bank which spoke of his intention to remediate the property, and of his and the company’s ability to pay any fine.
[78] While I consider that remediation of unlawful works which have caused an environmental effect is something that might be expected of a defendant, I acknowledge that, in this case, what is proposed will be beneficial to the environment and it is desirable that the works occur. I therefore allow a discount for good character and the remediation proposed of eight per cent. An enforcement order has been submitted, and I make an order in the terms attached and marked A. In setting the various milestones, I have assumed that the remediation work may have already commenced.
[79] There was some discussion as to the defendants’ financial means. I received confirmation after the hearing that Mr Bank has capacity to meet a penalty up to the level sought by the prosecutor by securing finance, and that the company should also be in a position to pay a fine in this proceeding. I acknowledge that the fine may need to be paid by instalments.
[80] I therefore convict the defendants on all four charges and impose a global fine of $46,900. The fine will be apportioned equally between the defendants and the
charges. I allow the defendants to enter into an instalment plan with the Registrar to pay the fine for a period not exceeding 12 months.
[81] I direct that, in terms of s 342(2) of the RMA, 90% of the fine shall be paid to the Council.
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.
IN THE DISTRICT COURT AT AUCKLAND
KI T MAKI MAKAURAU
CRN-200-4450-0142 CRN-200-4450-0144 CRN-200-4450-0192 CRN-200-4450-0193
IN THE MATTER AND
BETWEEN
AND
AND
Date of issue: 11 August 2021
of the Resource Management Act 1991
enforcement orders under ss 314 and 339(5) of the Act
AUCKLAND COUNCIL
Applicant RONALD BANK
First Defendant
ALBANY EARTHMOVING AND
LANDSCAPING LIMITED
Second Defendant
[1] The Court makes enforcement orders under ss 314(1)(b)(ii) and (c) and 339(5) of the Resource Management Act 1991 against Ronald Bank and Albany Earthmoving and Landscaping Limited in relation to the properties at 473 and 477 Ridge Road, Paremoremo, Auckland (the sites).
2
[2] Ronald Bank and Albany Earthmoving and Landscaping Limited are jointly required to do the following at the sites:
- (a) By 16 August 2021 commence rehabilitation work in accordance with the attached Bioresearches Restoration Plan for the sites dated January 2021 (Restoration Plan) and attached to this enforcement order;
(b) By 16 September 2021 complete the rehabilitation work in accordance with the Restoration Plan;
(c) Commission a suitably qualified and experienced ecologist to carry out an inspection of the sites following the completion of the rehabilitation work to confirm the rehabilitation work was completed in accordance with the Restoration Plan; and
- (d) Within 10 days of the inspection, provide the Auckland Council with a post completion report confirming the rehabilitation work was carried out in accordance with Restoration Plan.
[3] All costs for compliance with the orders shall be jointly borne by Ronald Bank and Albany Earthmoving and Landscaping Limited.
[4] These orders shall apply to the personal representatives, successors, and cosigns of Albany Earthmoving and Landscaping Limited to the same extent that they apply to Albany Earthmoving and Landscaping Limited.
[5] Leave is reserved for either the Council, Mr Bank or Albany Earthmoving and Landscaping Limited to apply to amend or vary these orders on notice.
[6] Legal service of the enforcement order will be achieved upon the Court registry emailing the enforcement order to the legal counsel of Ronald Bank and Albany Earthmoving and Landscaping Limited: Ms Tamsin Gorman / Mr Andrew Braggins of Berry Simons Solicitors.
MIL Dickey
District Court and Environment Judge
Annexure 1
Bioreseaxhes
A Babbage Company
473 & 477 Ridge Road, Paremoremo: Restoration Plan
1. ECOLOGICAL MANAGEMENT PLAN
The cleai ed / filled area witl iu 474 ftidge hoad shall he furtl›ei stablllsecl and planted with native species from a species list developecl ft om the surrounding area. ”this slJoulcl occur lmmedlately. Once the site is dry enough to support a small digger (oi equivalent) the sediment pund will be filled with flll fi’om the worth banl‹ adjacent tn the pond, anrJ that a i’ea r.olituu i’ed foi the flow path foi’ tile Intei'mIttent stream, stabilised and planted. Time plantings shall be cal efully maintained tl1i‘ough summel’ and early ar›tttmn to enstJre sufficient watei is present foi plant survival.
The following details tile procedui es / methods for ecological rehabilitation of the site.
established and the gro\‹nd stablllsed.
473 & 477 Ridge Road, i°arnmoramo: Ra9torollon PRn
G3738 zl7ü & x7 nidge ftoad Eculgical Mar\agement Plan V2 1ß-Jan-21
Bioreseai«hes é?
B. Once this worl‹ has been complete, and no later than the end of August 2021, the site wlll be Inspected by an e perlenced ecologist to confirm the work lfas been completed In accordance with tile plan and a repoil dellvered to Aucl‹land Council within 10 days of the site vlslt.
9. The site wlll be malntalned for three years In accordance wltli the planting plan.
473 & 477 Ridge Road, Paramoremo: Restoration Plan
63738 473 & 477 Ridge Road Ecolglcal Management Plan V2 10-Jan-21
Bioresearches ^+
/\ U:\IJI›‹I‹}‹ ! \ .‹›i i ›II, ii i'.
2.1 Planting Proced uie
Time n›aii1 planting season run.s frnin April tlJrnugh to Ar›gust. The goal Is to establish› root systems befni e the dryer summer months so watering is iJot required.
At tl›e tliTie of (Preparing thls repoi t time 2020 planting season load expired and It is recommended that plantlng occtii’ In Apl’il to August 2fJ21 to eilsru e the success of the Plai1tii›g Plan. Alternatively if planting was to occur prior tn the end of Nuvenlbei ancl regular watering uf the \›lants was part of' the programme, it is III‹ely that the plauts could establish successfully.
An effective and cost efficient container size foi planting is PB3 oi 1L, however, larger container sizes speed re-establishment time. Prior to planting, ensure all plants are thoroughly watered and have been allowed to drain out of direct sunlight (with the e ceptlon of manuka). Set the plants out on site accorcllng to the spacing recommended. Holes should be at least 1,5 — 2 tlmes largei than the plant root ball. Remove the plant carefully from the bag. If the plant Is root bound, untangle the roots carefully to help them to grow.
Z.2 Plant Sourcing
All new plants should be sourced from within tile Rodney Ecological District. This is known as ’ecosourclng’ and protects time genetic lineage of plants In the area. Since ecosourced plants will be adapted to the specific regional cllmatlc conditions, they are more lll‹ely to survive.
2.3 Plant Spacing
Plant spacitzg is provided in the planting schedules, but overall plant species sIzo«Id be semi-blended to avoid total uniformity. When planting, stralght lines sl\or Id be avoided. This will help give the area a mnre natural feel.
2.4 Plant Maintenance
Plant maintenance shall occur annually (once a yeai‘) In spring. Plant maintenance shall occur for three years to help ensuie the success of the Planting Plan. Plant inalutenan«e shall Include releasing of the plants from weeds and replacement of plants that do not survive.
2.5 Record Keeping
Records should be kept detalllng the timing and the degree of activities undertaken, such as weeding, pest control, planting, and maintenance. Thls will allow a full understanding on what lfas been achieved and what still needs to be undertal‹en. Refer to Appentllces II for examples of recording forms.
2.6 Mvrtle Rust Concerns
Myrtle rust threatens kénuka, ménuka, swamp maire and other species within the Myrtaceae family. Ministry of Primary Industry (MPI) guldellnes should be sti ictly followed, and a slgned Myrtle Rust Nursery Management Declaration certlfylng that the plant producer has implemented the New Zealand Plant
471 & 477 Ridge Road, Paramoramo: Restoration Plan 3
63738 473 & 477 fridge Road Ecolglcal Management Plan V2 111-Jan-21
Bioreseamhes * Ø
A RnlolJïtțjr: čn›i i›piłiJy
Producers Incorporated Myrtle Rust Nursery Management Protocol should be provided, In sprlng, cl›ecl‹ mânuI‹a and kâuul‹a. If a yellow rust is foun‹l «all MPI on OßO0 80 99 66,
2.7 Planting Schedule
Table 1 highlights time species lists of recommended plants ancI the total number of stems requlred for revegetatlng the approximately 600m* of the area.
Tahle 1. Rehabilitation Planting under Pines - AfiiproxImately 600m^
|
|
kãnuka
|
|
PB5
|
|
|
|
Cyatliea dealhata
|
ponga
|
1
|
PB5
|
15
|
103
|
|
Genlostoma IIgustrIfoIIum
|
hangehange
|
1
|
PBS
|
10
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69
|
|
Pomaderris kumeraho
|
kumaralto
|
1
|
PB5
|
10
|
69
|
|
Coprosma robusta
|
karamu
|
1
|
PB5
|
10
|
69
|
|
Coprosma grandlfolla
|
manono
|
1
|
PBS
|
5
|
34
|
|
Leucopogon fasclculatus
|
mlnglmłngl
|
1
|
PB5
|
5
|
34
|
|
Leptospermum scoparlum
|
mänuka
|
1
|
PB5
|
20
|
138
|
|
Parablechnum novoe-zealandlae
|
l‹ìol‹\o
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0.5
|
PB3
|
5
|
138
|
|
|
|
|
Total
|
100
|
792
|
|
|
|
|
Total + ION» for die-off
|
|
871
|
473 & 477 RIdØe Road, Paremoremo: Restoration Plan
6373B 47s & 477 Rldge noaá Ecolglcal Management Plan V2 18-Jan-21
Bioresearches ^e
\ I ï:II ›l +it)i-. I .' ›i i ii ›: v n'
A p_e rltl i x 1 ' P I a n I i ng F G1 I Ow rl{a éi f3 cl Rfl OI i i t Oi i lag f- ta r rll S
Species pla nted, spaciti g oniJ n Jim(ser s plari te i1
PLANTING FOLLOW-UP IVIONITORING
Assess planting areas each autumn
Mai l‹ gaps or dead plants wltl› spray n arl‹er dye ai1d/or a painted tall wooden stake Ascertain specles lost If possible anrl count up losses of each species
Order replacei1lelJt plants to ieplace lost plants of eaclJ species In tile original sizes.
Mav to Sentembel’ eaclt vear
Plant replacement plants to reflect oi lgli1al plant sclJeclule, slzes an‹l spaclng atJd note locatlons on a sl‹etch map.
Record of replacement planting Year2
Year 3
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