NZLII Home | Databases | WorldLII | Search | Feedback

District Court of New Zealand
You are here:  NZLII >> Databases >> District Court of New Zealand >> 2023 >> [2023] NZDC 5037

Database Search | Name Search | Recent Decisions | Noteup | LawCite | Download | Help

R v Growco Limited [2023] NZDC 5037 (20 March 2023)

Last Updated: 31 March 2023


IN THE DISTRICT COURT AT BLENHEIM

I TE KŌTI-Ā-ROHE
KI TE WAIHARAKEKE
CRI-2010-006-001979
[2023] NZDC 5037

THE KING
Prosecutor

v

GROWCO LIMITED
Defendant(s)

Hearing:
16 December 2022 via AVL
Appearances:
J Webber for the Crown
R Reed KC for the Defendant
Judgment:
20 March 2023

SENTENCING NOTES OF JUDGE D A KIRKPATRICK

Introduction


[1] The defendant Growco Limited faces two charges:

THE KING v GROWCO LIMITED [2023] NZDC 5037 [20 March 2023]

by a resource consent or allowed by s 10 or 10A of the Resource Management Act 1991.


[2] These charges are contraventions of s 9(2) and (3) of the Resource Management Act 1991 (RMA) which is an offence under s 338(1)(a) of that Act for which the maximum penalty faced by this defendant under s 339(1)(b) is a fine not exceeding $600,000. Both charges are stated to be continuing offences for which the penalty under s 339(1A) of the RMA is a fine not exceeding $10,000 for every day or part of a day during which the offence continues.

[3] Counsel for the Crown submits that an appropriate starting point for a penalty in this case is a fine in the range of $30-40,000, from which may be deducted no more than 15% for its guilty pleas.

[4] Counsel for the defendant submits that an appropriate sentence would be to convict and discharge the defendant.

Background


[5] Growco established a grape marc processing facility at Flaxbourne Station, 466 Marfells Beach Road, Lake Grassmere, Marlborough, on a property owned by Mr Peter Yealands.

[6] Grape marc is a solid waste product of wine making, consisting of leftover skin, pulp, seeds and stems from grapes. In recent years there have been significant issues with a number of storage sites for grape marc in Marlborough. The proposed facility at Flaxbourne was intended to provide a centralised solution to deal with potentially significant environmental effects. It was proposed that the facility would take and process 40-50,000 tonnes of grape marc, representing 80-100% of what is produced by the region’s vineyards, to be stored on an impervious pad made from compacted mudstone and behind a leachate dam lined with polyethylene with a volume of 19,500-20,000 cubic metres.
[7] The design volume of the proposed dam was said to be sufficient to account for both the storage of leachate (based on the quantity of grape marc to be kept on the pad) and any rainfall.

[8] Growco was granted two resource consents on 22 May 2017 to construct and operate the facility. One consent was a land use consent to develop a rural industry and to store agricultural waste (grape marc) at the property. This consent was subject to a condition requiring the activities to be constructed and exercised in a manner that is consistent with the proposal and methods described in the documents provided by the consent holder in support of the application for resource consent. It was also subject to the following conditions:

[9] The other consent was a land use consent to construct and operate a dam for the purposes of storing leachate from agricultural waste (grape marc) on the property. This consent was also subject to a condition that the activities be constructed and exercised in a manner that is consistent with the proposal and methods described in the documents provided by the consent holder in support of the application for resource consent. It was also subject to the following conditions:
[10] On 24 November 2017 Mr Richard Evans, a director of Smart Alliances Limited and an engineer, completed certification of the structures, including that the dam was constructed in accordance with the details provided with the application for resource consent.

[11] Council officers subsequently learned that the dam had been constructed with a maximum volume of 13,145 cubic metres, significantly smaller than the volume described in the application for resource consent as being required to hold the leachate together with any stormwater.

The offending


[12] Site visits by council officers were undertaken on 10 and 13 April 2017. The officers observed leachate coming through the embankment wall with seepage and rilling erosion on the western face of the ridge and erosion of the western embankment of the leachate dam. However, these observations were not formally raised as

concerns with the defendant and no further action was taken by the council at that time.


[13] A grape marc management plan was not provided in final form within six months from the date of commencement of the consent. A draft was provided in March 2018. The last draft was provided in June 2018. The draft plans stated that the dam had a capacity of 19,500 cubic metres.

[14] During the 2018 vintage, the facility accepted between 35-38,000 tonnes of grape marc. Council officers visited the site on 10 April 2018 when there had been heavy rain. The leachate behind the dam was at a high level and there was limited further capacity. A significant amount of grape marc was on the pad, as expected, but a dam had been constructed out of it to restrict the flow of leachate.

[15] As observed by the Council officers, the volume of material behind the dam was at a level that created a risk of there being insufficient capacity to hold any additional leachate together with any stormwater that might flow into it. In an attempt to contain any excess, Growco created a further dam out of the grape marc on the pad behind the lined dam. with a large volume of leachate behind it. The accumulated leachate was ponding against a bank formed by the remains of a ridge on the site comprised of loess soil with underlying papa rock. Leachate had travelled through this ridge and re-emerged above the dam. There had been erosion of both the ridge and the western wall or bund of the dam. This erosion had resulted in the discharge of sediment to the banks and bed of a stream at the base of the wall.

[16] Following this, council officers obtained a search warrant and executed it on 18 April 2018. On 4 May 2018 letters were sent to Growco outlining issues which officers had with the site and requesting an explanation. In explanation, Growco advised that it had encountered difficulties with exceedingly wet grape marc which led to higher levels of leachate than anticipated. Although suppliers of grape marc to Growco were contractually obliged to keep it free of added moisture and undercover where practicable, a number of them provided approximately 8,000 tonnes of marc in a very wet condition. This resulted in extra leachate, requiring more capacity, and making the marc more difficult to move. Growco had taken measures to remedy this

by installing 30 large tanks on the property to store the excess leachate. It had little option but to receive the grape marc as the suppliers did not have any alternative method of disposing of it. The 30 large tanks were only a quarter filled, so Growco had plenty of capacity remaining.


[17] An abatement notice was served on Growco on 7 May 2018, requiring it to do a number of things, including:

[18] The dates for items (d) and (f) were subsequently extended to 31 May 2018.

[19] A site visit was undertaken on 15 June 2018 to assess compliance with the abatement notice. The grape marc dam was still present on the pad with leachate

collected behind it. Mr Yealands explained that it was better to do this than to have the dam overflow. A siphon had been installed to allow for a controlled flow of leachate over the dam to a collection point and down into the lined dam. Earthworks had been carried out to the north of the pad and the area there had been repaired, seeded and fertilised. Some leachate had been carted away to the wastewater treatment facility, but that progress had been lost to heavy rain. The rilling to the west of the lined dam had been filled in with topsoil and seeded. It was unclear whether the volume in the dam had been reduced to 80% of its capacity. Concentrated leachate was being put into the tanks on the site. In summary, the abatement notice had not been complied with in relation to the removal of dammed leachate from the pad, managing the volume behind the lined dam at no more than 80% of its capacity and removing any impediments to the flow of leachate towards the drainage pipe.


[20] Officers from the council’s building section had by this time become concerned that the leachate dam might contain more than 20,000 cubic metres of liquid, therefore requiring a building consent. A notice to fix was issued on 14 June 2018. A subsequent survey confirmed that the volume of the dam is 13,145 cubic metres.

[21] By the time of a further site visit on 12 July 2018, the leachate dam had been removed and there was no leachate remaining on the pad other than that flowing to the collection drain. Leachate was still being pumped into tanks. Sown grass was growing and there was only minor rilling of topsoil in some locations.

Breaches of resource consents


[22] The agreed summary of facts identifies the following breaches of the resource consents:

Prosecutor’s submissions


[23] Counsel for the Crown, Mr Webber, noted that the actual damage that occurred in this case was limited to the discharge of sediment from the bank of the lined leachate dam to the stream. He submitted, however, that there was potential for greater damage should grape marc leachate be discharged, as it is strongly acidic with high concentrations of cations and heavy metals and has an extremely high biological oxygen demand. This potential arose from the breach of the condition requiring the dam to be constructed as applied for and the failure to sow its face leading to erosion. Counsel noted that the potential risk was heightened by the relative proximity of Lake Grassmere which is a sensitive receiving environment.

[24] Counsel acknowledged that the receiving environment was not affected beyond the discharge of sediment into the stream as a result of intervention by the council. Counsel submitted that it is nevertheless important to comply with resource consent conditions and cited the following statement in Otago Regional Council v City Care Limited:1

1 Otago Regional Council v City Care Limited [2021] NZDC 14790.

[25] Counsel submitted that the breaches of the conditions in this case were significant because of the toxic nature of grape marc and the need to ensure that the facility was designed to effectively contain and manage that substance and its leachate.

[26] Counsel submitted that the defendant’s offending was careless, with an aspect of deliberate behaviour. He pointed to the failure to construct the dam so that its volume was much smaller than that described in the application for resource consent as the most important breach. He noted that the defendant must have been aware of this prior to the 2018 season but had not taken any steps to address it.

[27] Counsel also pointed to the damming of leachate with grape marc on the pad which was done to create a more marketable product. This had not been identified in the application for resource consent. He submitted that intentionally damming leachate against an unlined and permeable surface ran contrary to the purpose of conditions requiring the pad to be impermeable and graded so that leachate would run to a collection point for discharge to the dam.

[28] Counsel acknowledged that the facility was intended to deal with the problematic waste stream for the benefit of a regional industry. He also acknowledged that the defendant had been cooperative with the council.

[29] In terms of comparable cases, counsel for the Crown referred to:

(a) Marlborough District Council v Smart Alliances Limited;
[30] Smart Alliances Ltd was prosecuted for its role in the current matter as the certifier of the structures of the facility.2 It pleaded guilty to one charge of permitting the use of land in a manner that contravened district rule 30.4.1 in the Wairau Awatere Resource Management Plan by carrying on a rural industry when that use was not expressly allowed by a resource consent or allowed by s 10 or 10A of the Resource Management Act 1991. The facts included that, contrary to what had been certified by the company:

[31] The Court noted that physical inspection of the dam would not have revealed whether or not it had been built to its design specification and accepted that the failure to provide the defendant with information about its construction was a significant factor in the offending which tempered the culpability of the defendant, but found that the defendant failed to request that a formal survey of the as-built facility be undertaken. The Court adopted a starting point for a fine of $15,000 and applied discounts of 25% for an early guilty plea and 5% for the absence of any previous compliance issues, resulting in a fine of $10,500.

[32] In the Gifford case,3 the defendant buried treated timber posts and tires on an alluvial fan, contrary to a resource consent, resulting in moderately serious soil contamination to a confined area. A starting point of $30,000 was adopted.

2 Marlborough District Council v Smart Alliances Ltd [2022] NZDC 10213.

3 R v Gifford [2022] NZDC 22061.

[33] In the case of PLS Consulting,4 earthworks were done in a manner contrary to consented plans, resulting in a small slip. A starting point of $15,000 was adopted.

[34] In the Zhou case,5 earthworks were done in a manner that was not provided for in the consented plans. The Court adopted a starting point of $10,000. The Court there observed:

[35] In the Tui Glen case,6 farm earthworks were done by the defendant on two farms in contravention to s 9 of the RMA and an abatement notice, with sediment being discharged in circumstances where it may have entered water. The attitude of the principal of the defendant, Mr Walling, was described as cavalier. The scale of the offending was high and the culpability of the defendant was assessed as being reckless. Starting points of $40,000 for one farm and $35,000 were adopted.

[36] The Growco case in 20187 involved five charges of quarrying and road building activities in contravention off resource consents, including depositing fill on the bed of a river, damming a stream and discharging sediment to land where it may enter

4 Wellington City Council v PLS Consulting Limited [2021] NZDC 12506.

5 Wellington City Council v Zhou [2019] NZDC 18314.

  1. Waikato Regional Council v Tui Glen Farm Limited DC Hamilton CRI-2011-072-130135, 14 August 2012.

7 Marlborough District Council v Growco Limited [2018] NZDC 16539.

water. The identified effects related only to sediment in a stream and were found to be at the lower end of the scale. Culpability was assessed as arising from a mistake rather than carelessness or worse. A starting point of $20,000 was adopted.


[37] The Hopper Construction case8 concerned earthworks and vegetation clearance involving contravention of consent conditions, with inadequate erosion controls. No adverse effects were identified but there had been the potential for them to occur. The Court observed:

[38] A starting point of $30,000 was adopted, to be divided equally between the two defendants.

[39] Counsel noted that the two older cases of Tui Glen and Hopper Construction

may be regarded as outdated in terms of the levels of starting points. He submitted that


  1. Waikato Regional Council v Hopper Construction Limited DC Huntly CRI-2006-075-1125, 13 August 2007.

the offending in this case was more serious than either PLS Consulting or Zhou and that the culpability of the defendant is significantly higher than that of Smart Alliances as Growco sought the resource consents, was in charge of the facility and knew how it was intended to operate. He accordingly submitted that a starting point of $30 – 40,000 would be appropriate and that it would not be appropriate to treat its offending as in any way combined with that of Smart Alliances given their different roles and knowledge of relevant matters.


[40] No uplift for Growco’s prior conviction is sought, but equally counsel submits that no discount for good character is warranted. Counsel submits that the discount for plea should be no more than 15% given the time taken between late 2018 and September 2022 to reach a resolution on the plea.

[41] In relation to costs, the parties have reached an agreement. There has previously been a costs award in a related proceeding in favour of Mr Aaron Yealands, the son of Mr Peter Yealands. An agreement has been reached that Mr Aaron Yealands will not enforce the costs award in his favour and in return no additional costs will be sought against the defendant in this case.

Defendant’s submissions


[42] Ms Reed KC for Growco noted that the charges do not allege that any leachate actually discharged from the facility and there is no charge of contravening s 15 of the RMA. Instead, the focus of the charges is that the defendant did not comply with the terms of its resource consents and not that its offending caused any significant environmental effect.

[43] Counsel characterised the breaches of the conditions as technical non- compliance. She submitted that the closure of the facility has thrust the problem of dealing with grape marc back onto the community. As a result, there have been discharges of leachate leading to prosecutions, as in Marlborough District Council v Broadbridge Transport Limited9 where discharges from trucks being used to transport

9 Marlborough District Council v Broadbridge Transport Limited [2021] NZDC 9740.

grape marc entered a creek rendering its waters acidic and resulting in a fine of

$15,000.


[44] Counsel pointed to the council’s compliance monitoring report for 2019 which records that wineries in the region were only 44% compliant with their resource consent conditions with 31% of them being non-compliant. She submitted that similar non-compliance is shown in the reports for 2020 and 2021. She submitted that this is a missed opportunity and may have also deterred others from investing in solutions for grape marc out of fear that compliance would not be achievable.

[45] Counsel referred to the approach to discharges of effluent outlined in Waikato Regional Council v GA and BG Chick Limited.10 Counsel submitted that there is no comparable case to this one. She submitted that cases such as those identified by the prosecutor invariably involve discharges and that there is rarely a sentencing decision where there are discrete breaches of conditions of consent but no resulting discharge or other adverse effect. On that basis, counsel submitted that this offending falls into the level 1 band identified in Chick.

[46] Counsel quoted extensively from previous decisions of the court in sentencing Growco11 in the case already referred to and in sentencing Mr Yealands12 in a separate case involving actual discharges of grape marc leachate where a starting point of

$15,000 was adopted. She noted that now Growco would not be able to meet any fine itself as the facility has been shut down and it has no financial resources, but that Mr Yealands, who has financed the company, had said that he would pay the company’s fine.


[47] Counsel points to the following factors as mitigating features:

10 Waikato Regional Council v GA and BG Chick Limited (2007) 14 ELRNZ 291.

11 Marlborough District Council v Growco Limited fn 7.

12 Marlborough District Council v Yealands [2018] NZDC 4115.

(c) A significant investment to establish the facility to meet regional needs; and

(d) Responsible remediation once the abatement notice was issued.

[48] Given the circumstances, counsel submitted that the appropriate sentence for the breaches of resource consent conditions in terms of s 11(1)(b) and s 8(g) of the Sentencing Act would be to convict and discharge Growco, a conviction being a sufficient penalty in itself in terms of s 109 of the Act.

Evaluation


[49] In sentencing an offender the Court must follow the two-stage approach as set out in Moses v R,13 first calculating the starting point incorporating any aggravating and mitigating features of the offence, and then incorporating all aggravating and mitigating factors personal to the offender together with any discount for a guilty plea (calculated as a percentage of the starting point).

[50] All of the purposes and principles in ss 7 and 8 of the Sentencing Act 2002 must be borne in mind, as well as the purpose of the RMA to promote the sustainable management of natural and physical resources. Of particular relevance under the Sentencing Act 2002 are the purposes of accountability, promoting a sense of responsibility, denunciation and deterrence, and the principles relating to the gravity of the offending and the degree of culpability of the offender, the seriousness of the type of offence, the general desirability of consistency with appropriate sentencing levels and the effect of the offending in the community.

[51] There is no dispute between the parties as to the orthodox approach to sentencing in cases under the RMA. While counsel for the Crown referred me to the well known decision of the High Court in Machinery Movers Ltd v Auckland Regional Council,14 the more recent decision in Thurston v Manawatu Whanganui Regional

13 Moses v R [2020] NZCA 296 at [45] – [47].

14 Machinery Movers Ltd v Auckland Regional Council [1994] 1 NZLR 492.

Council15 provides clear guidance in terms of the provisions of the Sentencing Act 2002, including the likely predominant sentencing principle of deterrence in environmental cases.


[52] In Thurston Miller J provided a comprehensive summary of the principles applicable to environmental offending.16 Persons who plead or are found guilty of offences under the RMA are to be sentenced in accordance with the purposes and principles of both the Sentencing Act 2002 and the RMA.17 Particularly relevant considerations include:18
  1. Thurston v Manawatu Whanganui Regional Council, HC Palmerston North, 27/8/2010, CRI- 2009-454-25, CRI-2009-454-27, CRI-2009-454-24.

16 Thurston fn 15 at [39] – [51].

17 Thurston fn 15 at [40].

18 Thurston fn 15 at [41] – references omitted.

unlawful discharges. If they are to work as intended the Court must treat non-compliance as inherently serious; and


(g) Co-operation with enforcement authorities and guilty pleas.

[53] More generally under the Sentencing Act, the principles of accountability, denunciation and deterrence, the gravity of the offending, the degree of culpability of each defendant, the general desirability of consistency in sentencing and the effect of the offending on the community are important considerations. Under the RMA, the most relevant considerations are the statutory purpose of sustainable management of natural and physical resources and the matters to which particular regard is to be had including kaitiakitanga and the ethic of stewardship, the intrinsic values of ecosystems, maintenance and enhancement of the quality of the environment, and any finite characteristics of natural and physical resources.

[54] I accept the prosecutor’s submission, based on the City Care case, that it is well established that to comply with a resource consent requires compliance with all of its conditions.19 Contravention of a condition is the contravention of the consent and accordingly is a contravention of the relevant primary restrictions, in this case, of s 9(2) and (3) of the RMA.

[55] I have carefully considered the emphasis laid by counsel for the defendant on the absence of any actual discharge in this case and her submission that this diminishes the gravity of the offending. That submission is similar to one often made to this Court in prosecutions under the RMA where no evidence of adverse effects on the environment has been identified, whether or not there has been a discharge. The lack of a sound foundation for such a submission was clearly explained in Bay of Plenty Regional Council v Waiotahi Contractors Ltd:20

[73] Some emphasis was placed by counsel for the defendant on the fact that there were no dead animals found, and comparisons were made with other cases where that has occurred ... . This submission seems to have become somewhat of a feature in cases such as this. Whilst evidence of actual harm ... can be a factor indicating the seriousness of the environmental damage, it is not necessary for such evidence to be provided and often it cannot.

19 Otago Regional Council v City Care Limited fn 1at [47] – [48].

20 Bay of Plenty Regional Council v Waiotahi Contractors Limited [2018] NZDC 2397 at [73].

Furthermore, this submission seems to miss the point that it is the damage to ecosystems by man-made activities that is the concern, and which the RMA seeks to prevent. As I said in [Bay of Plenty Regional Council v Whitikau Holdings Limited, & Ors]:21

[115] ... The whole point is to prevent man-made activities causing further damage to an environment which may well be subject to natural impacts of a similar nature, and thereby try and avoid adverse cumulative effects on the environment. Furthermore, the quantification of the actual impacts on an environment - particularly lasting effects - is often not possible and it is not necessary for this kind of assessment to always form part of an investigation. The High Court in Thurston dealt with this when it said:22

Where no specific harm can be identified, an allowance for harm may be made on the assumption that any given offence contributes to the cumulative effect of pollution generally.


[56] Nonetheless, there are three elements in this case of concern to me which complicate the otherwise straightforward reliance on a contravention of a resource consent:

[57] A condition of resource consent should be clear in its terms, practicable in its operation and capable of direct enforcement. One should be able to read the conditions that form part of the resource consent and see there what the conditions are. For

21 Bay of Plenty Regional Council v Whitikau Holdings Limited, & Ors [2018] NZDC 3850.

22 Thurston v Manawatu Whanganui Regional Council fn 15 at [41](d).

enforcement purposes, one should be able to refer directly to a particular condition that is being enforced. As was also stated in City Care:23


[50] I observe that a breach of only one condition of any given resource consent need be established for an activity to be undertaken other than as expressly allowed. However, I agree with the proposition that Mr Eaton QC advances as to the difficulty in having to deal with all of the contended breaches of conditions at trial. That makes the proceeding onerous for all parties including the Court, not just the Defendant.

[51] On the other hand I consider that it was appropriate, indeed necessary, for the Prosecutor to identify all of the contended breaches of conditions in the manner it has done in light of the significance of conditions when considering the question as to whether or not an activity is being undertaken as expressly allowed. Had the Prosecutor not identified all contended breaches of conditions it could well have been subject to criticism and disadvantage had non-identified breaches emerged during the course of the trial. Potentially such unidentified breaches might not be relied upon as a basis for conviction.

...


[58] The relevant condition in this case generally referred to the application documents and purported to impose the contents of those as a condition of resource consent. That may appear to a busy consent authority to be a handy way of capturing all of the various things that may be put forward in an application and turning them into requirements of the consent, but it does not meet the basic standards of clarity, practicability and direct enforceability. The better approach is to identify and extract the specific performance standards or other limits that are identified in the application and set those out in the conditions of consent as the things that must be done or not done.

[59] In this case it appears that the primary driver for the design of the maximum capacity of the dam was the desire to avoid creating a structure which would require a building consent. Having done that, it is then to be inferred that the structure should nonetheless contain as much grape marc as it could. The charges are therefore based not on an explicit standard or limit in the conditions but on an inference as to what the minimum capacity of the dam should be.

[60] Ordinarily where a condition sets an upper limit, any activity within that limit is not a contravention of the condition. In this case, however, there were opposing

23 Otago Regional Council v City Care Limited fn 1 at [50] – [51].

design objectives: of providing as much capacity as possible in order to deal with the problems of disposing of grape marc while staying within the limits of the Building Act 2004 for an unconsented dam. These opposing objectives have led to the charge of not providing as much capacity as was indicated in the application. I acknowledge that the tension created by the two opposing objectives is largely resolved by Growco’s guilty plea, but the Council should take care not to use shortcuts of this kind when imposing conditions of resource consent.


[61] In the event, there was no discharge of grape marc leachate or other effluent in this case. Harm is not an element of the offence of contravening the RMA as the statutory purpose includes avoidance of adverse effects, but the degree of harm is a relevant consideration in sentencing. In the absence of harm, the Court should assess the risk created by or otherwise associated with the contravention.

[62] Some emphasis was laid by the prosecutor on the steps taken by Growco to avoid a discharge as indicating its knowledge of the reduced capacity of the dam, including by creating the additional storage area behind the grape marc barrier and the use of large containers. I accept the prosecutor’s submission that these steps show that the reduced capacity of the dam was indeed an issue, but I also find that Growco took effective action to avoid the lack of capacity resulting in environmental damage. Taking such action is accordingly to the defendant’s credit.

[63] Further, in mitigation, there is no argument about the fact that the facility was intended by both Growco and the Council to be for the purpose of dealing with a hazardous by-product of a significant regional industry. I am told that the lack of a large scale facility for winemakers is a real problem and that disposal of grape marc in the region is difficult. While Growco was obviously intended to be a commercial operation, its purpose was also in response to a regional need. As I understand the circumstances, Growco might have responded to the diminishing capacity of the dam by refusing to accept further loads of grape marc but it did not do so, and instead tried to increase its capacity by the jury-rigged further detention structure and the large containers, in order not to put the problem back on the vineyards who might have even less capacity to store the grape marc safely.
[64] Taking all of those matters into account, I find that the gravity of the offending by Growco and its culpability for it were not as serious as in most of the cases referred to by the prosecutor as being comparable. I should stress that this is not because of the absence of any discharge or the lack of adverse effects, as submitted by counsel for the defendant in her reliance on the range of offending identified in the Chick case.24 A failure to comply with the conditions of a resource consent is in itself a serious matter needing to be deterred, both individually and generally. Rather, the gravity of the offending and the culpability of Growco are not as serious as in those other cases because while Growco built a dam which was substantially smaller than the size indicated in the resource consent application documents, it is not apparent that it did so deliberately to achieve any commercial aim or recklessly because it did not care about the outcome. For all that the risk of serious adverse effects from a discharge of grape marc leachate or other effluent would be high, the apparent willingness of Growco to take steps to manage the grape marc to avoid a discharge puts this case in a different category to the other cases cited to me.

[65] For those reasons I consider that an appropriate starting point for Growco’s offending is $15,000. From that, I consider that the aggravating factor of a prior conviction and the mitigating factors in the case essentially cancel out. In respect of the plea, while it is relatively late there appear to be reasons for that, including the time it has taken to achieve overall resolution with a number of defendants. I will make a discount of 15%. That would result in a fine of $12,750.

[66] I have carefully considered Ms Reed’s submission that Growco should be convicted and discharged. Certain aspects of the case would support that, including my concerns about the state of the conditions and the assertions that Growco is no longer trading. But this was a significant project requiring careful management. The sizing of the capacity of the dam was important, as were the supervision and control of its construction and the care of it once operation commenced. Imposition of a penalty by way of a fine is appropriate.

24 Waikato Regional Council v GA and BG Chick Limited fn 10.

Sentence


[67] Under s 339(1)(b) of the Resource Management Act 19912, I convict Growco Limited on the charges in CRN 18006500320 and CRN 18006500326 and sentence it to pay a fine of $12,750, to be divided equally between the two charges.

[68] Under s 342 of the Resource Management Act 1991, I order that the fine, less 10% to be credited to a Crown Bank Account, be paid to the Marlborough District Council as the local authority which commenced these prosecutions.

Judge D A Kirkpatrick

Environment Judge and District Court Judge | Kaiwhakawā o te Kōti ā-Rohe

Date of authentication | Rā motuhēhēnga: 20/03/2023

NZLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.nzlii.org/nz/cases/NZDC/2023/5037.html