Waikato Regional Council v Matamata-Piako District Council [2024] NZDC 16529 (22 July 2024)

Last Updated: 2 August 2024

IN THE DISTRICT COURT AT HAMILTON I TE KŌTI-Ā-ROHE KI KIRIKIRIROA

CRI-2023-039-000464 [2024] NZDC 16529

WAIKATO REGIONAL COUNCIL Prosecutor

v

MATAMATA-PIAKO DISTRICT COUNCIL Defendant

Hearing: Last case event:	3 April 2024 via AVL 18 June 2024, Memorandum from the Prosecutor
Appearances:	A McConachy for the Prosecutor DJ Neutze for the Defendant
Judgment:	22 July 2024

SENTENCING DECISION OF JUDGE MJL DICKEY

Introduction

[1] The Matamata-Piako District Council (MPDC) has pleaded guilty to a charge that between 6 and 10 April 2023 (inclusive) it contravened s 15(1)(b) of the Resource Management Act 1991 by permitting a contaminant, namely wastewater containing untreated human effluent, onto land in circumstances which may result in that contaminant entering water, namely a tributary of the Mangawhero Stream, where that discharge was not expressly allowed by a national environmental standard or other regulations, a rule in a regional plan or proposed regional plan or a resource consent.

WAIKATO REGIONAL COUNCIL v MATAMATA-PIAKO DISTRICT COUNCIL [2024] NZDC 16529 [22

July 2024]

[2] The maximum penalty for this offence is a fine not exceeding $600,000.

[3] For the prosecutor, Ms McConachy submitted that a starting point of between

$95,000-$100,000 is appropriate, while Mr Neutze for MPDC suggested a starting point of $75,000.

[4] No application for discharge has been made and nor do I think that a discharge is appropriate. The defendant is therefore convicted of the charge.

[5] A Summary of Facts was agreed between the parties and it is on that basis I undertake the sentencing.

Background1

[6] MPDC currently operates and manages the Matamata Waste-Water Treatment Plant (Treatment Plant) located at the end of Pepper Street in Matamata.

[7] The Treatment Plant serves a population of approximately 9,050 residents2 including the townships of Raungaiti and Waharoa.

[8] The Treatment Plant treats wastewater from domestic and industrial sources and has a resource consent issued by the Waikato Regional Council (WRC) allowing the discharge of no more than 4,000m3 (4,000,000 litres) per day of membrane treated effluent to the Mangawhero Stream near Matamata. Extensive sampling and testing of the membrane treated discharge is conducted to ensure the levels of toxicity and microbial pathogens are at an acceptable level. Toxicity testing includes regular checking of Total Kjeldahl Nitrogen, nitrate, nitrite and ammoniacal nitrogen, while microbial testing includes testing for Total phosphorus, dissolved reactive phosphorus, and E. Coli. Other tests include checking the temperature, pH levels and total suspended solids.

[9] The Treatment Plant consists of an inlet pipe and inspection manhole, and a pump station with three pumps located in an inground ‘wet well’ pumping through a

1 Summary of Facts, at [2] – [21].

2 Matamata Wastewater Treatment Plant Annual Resource Consent Compliance Report 2022/2023.

screen to the oxidation ponds. The pumps can be manually or remotely operated and operate in either an automatic or manual mode. Float switches located in the wet well activate to turn each pump either on or off depending on the volume and level of the inflow to the plant. The effluent is then pumped through inlet screens to remove solids before entering Pond 1, and then Pond 2 where further treatment occurs. The waste then enters the membrane filter plant before being discharged via rock filled gabion baskets into the Mangawhero Stream.

[10] MPDC employs Wastewater Operators who are required to complete a series of checks either once or twice a week at the plant to ensure the process and the equipment is working as intended. These checks include pumping down and cleaning the inlet wet well. The operators work on a monthly rotation across all five of the MPDC wastewater treatment plants as well as performing on call after hours and weekend duties.

[11] The Treatment Plant uses a Supervisory Control and Data Acquisition (SCADA) based system for supervision of the treatment process and has a multitude of alarms related to this process. In the event of an alarm activation at the Plant a text message is automatically sent to the operator, who responds with a code to confirm they have received the message. If the duty operator does not respond to the alarm notification within 15 minutes, a message is sent to the Water and Wastewater Operations Manager. As stated within Section 3.3 ‘Alarms’ of the Operation and Management Plan for the Treatment Plant, ‘...even if staff can correct the alarm condition remotely, the operator should visit the site within a short time to check whether the alarm was a one-off event or if something needs attention.’

Circumstances of the offending3

[12] On Thursday the 6th of April 2023, the day before Good Friday, a wastewater operator was rostered at the Treatment Plant. He commenced his shift at 7.30am. He completed his daily duties including chemical testing of the ponds, checking the pH levels and other general ‘housekeeping’ duties. He also decided to clean the wet well, a task he had only just performed the previous day.

3 Summary of Facts, at [22] – [48].

[13] At approximately 1.55pm, the three pumps in the wet well were switched from automatic to manual in order to reduce the level of the well. The pumps engaged and pumped the inflow to Pond 1. The operator proceeded to wash down the well, cleaning the walls, pumps and float sensors. At the completion of the wash down, the well was closed and the operator went to the control box located nearby to turn the pumps back to automatic.

[14] The standard procedure for operators to restart the pumps is to put the pumps to auto-run then press the general reset button to engage the system.

[15] At 2.14pm, an alarm notification was sent to the operator via a text message. The message read ‘MAT WWTreat Plant WetWell Critical HI’. This message indicated the level in the wet well was at a critical level. The critical alarm is triggered when the level of the well reaches approximately 47% capacity, or 2.75 metres.

[16] He acknowledged the alarm and assumed, as he had just cleaned the wet well and reset the system, that this was a false alarm. Over the next few minutes the three pumps in the well stopped running, allowing the level of effluent to build up.

[17] At 2.47pm, he received another text message with the alarm code for ‘WetWell Hi’. Thinking this was another false alarm, the operator acknowledged this alarm and carried on his normal duties. The level of the well was now at five metres, or around 85% capacity.

[18] He finished work at 4pm and went home. Between 5.18pm and 5.58pm three further alarm notifications stating ‘WetWell Hi’ were sent via text message to the operator. On each occasion, he acknowledged these alarms but did not respond to the situation. During this time the wet well continued to fill, and wastewater and effluent backed up and started flowing through a conduit pipe to the electrical control panel, and to a bunded concrete area known as the Wallace Tank via a decommissioned inflow pipe.

[19] The base of the control box filled to the point where the sewage started flowing out of the vents and began ponding around the wells. The effluent also started flowing

out of a grate on a concrete loading pad by the Wallace Tank before flowing across a metalled area to a nearby surface water drain. Once the effluent reached the drain, it flowed approximately 430 metres and entered the Mangawhero Stream.

[20] The discharge went unnoticed over the entire Easter weekend until Monday the 10th of April 2023, when another wastewater operator remotely logged into the Treatment Plant SCADA database from Te Aroha.

[21] The operator noticed the pumps at the Treatment Plant were not running and the level in the wet well was high. He reset the system and turned the pumps on remotely to lower the level of the well. This occurred at approximately 7.50am, nearly 90 hours after the pumps stopped.

[22] The operator then travelled from Te Aroha to the Treatment Plant where he noticed raw effluent had covered a large area around the Wallace Tank, carpark and grass area. He also noticed that the discharge had made its way to the nearby stormwater drain.

[23] At 9.43am, the operator attempted to contact the Manager for Water and Waste Water Services at MPDC to advise them of the incident. A decision was made to start the clean-up of the contaminated area.

[24] At approximately 11.40am on the 10th of April 2023, Mr Tony Peacham from Environmental Research & Technological Services, a compliance monitoring company engaged by MPDC to conduct effluent testing, arrived at the Treatment Plant and took six water samples from the immediate area.

[25] The samples were taken from the surface water drain where the discharge entered the drain (SP1), 60 metres upstream of the discharge in the drain (SP2), 100 metres downstream in the drain (SP3). A further sample was taken 450 metres downstream in the drain (SP4).

[26] Mr Peacham then took a sample 100 metres downstream where the drain entered the Mangawhero Stream (SP5), and a final upstream sample was taken by the State Highway 36 bridge (SP6).

[27] At approximately 4.00pm on the 10th of April 2023, eight hours after the breach was discovered, contact was made with WRC via the afterhours call centre to inform it of the discharge.

[28] On Tuesday the 11th of April 2023 at approximately 11.00am, WRC Officers attended the Treatment Plant. Three samples were collected as part of their scene examination from the area. This was approximately 36 hours after the discharge ceased.

[29] The samples were collected upstream of the discharge point in the stormwater drain (sample A), the actual discharge point to the drain (sample B), and approximately 100 metres downstream of the discharge point (sample C).

[30] The three samples were delivered to Hills Laboratories, an accredited testing laboratory. Levels of Faecal Coliforms and E. Coli were tested for. Other tests conducted included Total Suspended Solids, Nitrogen, Ammoniacal-N, Dissolved Reactive Phosphorus, Nitrate-N + Nitrite-N and Total Kjeldahl Reactive Phosphorus.

Volume of Discharge4

[31] Using data for the consumption and discharge per head of a population base of 8,500, and using an average of the daily figures of 200 litres per person, the inflow to the Treatment Plant is 1,680m3 per day, with an average hourly flow rate of 70m3.

[32] It is estimated while the pumps had not been turned on it took approximately six hours for the level of the effluent to rise to a level such that it overwhelmed the capacity of the wet well and began to flow out to the environment.

4 Summary of Facts, at [49] – [54].

[33] The total period of time the discharge continued has been estimated as being between 40 hours and 75 hours before the pumps were turned on to drain the well and prevent further discharge.

[34] Using the average hourly inflow rate of 70m3 at a duration of 40 hours, the total unlawful discharge from the Treatment Plant is estimated at 2,800m3 or 2,800,000 litres.

[35] At 75 hours, the total discharge is estimated at 5,250m3 or 5,250,000 litres of raw human sewage and wastewater to the environment.

Sentencing principles

[36] Sections 7 and 8 of the Sentencing Act 2002 set out the purposes and principles of sentencing. The approach to sentencing is usefully outlined in Thurston v Manawatu-Wanganui Regional Council.5 For this decision the purposes and principles for sentencing include the gravity of the offending, the offender’s culpability, the effects of the offending on the environment and the community, and the need for deterrence.

Environmental effects

Results of sample testing6

[37] The results of samples analysed by Hills Laboratories indicated the following:

• (a) Sampling point A (upstream), the E. Coli coliform forming units (cfu)

reading was 3,500 cfu per 100mL;

(b) Sample point B (the discharge point) the reading was 50,000 cfu per 100mL; and

(c) Sample point C (downstream) the reading was 51,000 cfu per 100mL.

5 Thurston v Manawatu-Wanganui Regional Council HC Palmerston NorthCRI-2009-454-24, -25, -27, 27 August 2010.

6 Summary of Facts, at [56] – [66].

[38] E. coli is a bacterium commonly found in the guts of warm-blooded mammals (including people) and birds. It is an indicator of faecal contamination, and the presence of disease-causing organisms (or pathogens such as viruses, bacteria, protozoa or intestinal worms) can pose a health hazard when the water is used for drinking or recreational activities.

[39] The National Policy Statement for Freshwater Management 20207 indicates the level of E. Coli concentration for human contact in primary contact sites in lakes and rivers should be less than 540 cfu per 100mL.

[40] Samples A, B, and C taken by WRC indicate all the test point results exceeded the acceptable concentration and were unsafe for human contact.

[41] Test samples taken by Mr Peacham on the day the discharge was discovered also indicate that at each of these sample points the water was unsafe for human contact. The results of those tests included the following:

• (a) Sample 1 (the discharge point) the level of E. Coli cfu per 100mL was 240,000;
  
• (b) Sample 2 (taken upstream of the discharge point in the drain) showed 23,000 cfu per 100mL;
  
• (c) Sample 3 (100 metres downstream) gave a reading of 200,000 cfu per 100mL;
  
• (d) Sample 4 (450 metres downstream) returned a reading of 270,000 cfu per 100mL;
  
• (e) Sample 5 (taken 100 metres in the Mangawhero Stream) indicated 2,200 cfu per 100mL; and
  
• (f) Sample 6 (upstream in the Mangawhero Stream by S.H. 36 bridge) indicated cfu per 100mL of 300.
  

7 National Policy Statement for Freshwater Management 2020, Table 22 - Escherichia coli (primary contact sites).

Effects on the local environment8

[42] The Mangawhero Stream is a tributary of the Waihou River which is of significant cultural, spiritual, historical and environmental importance to Ngāti Hauā and other iwi, and flows into the Firth of Thames.

[43] The Waihou River’s water quality (at Te Aroha) is rated in the worst 25% of all New Zealand water quality sites. This discharge event would have temporarily added to the cumulative loading of nutrients (and sediments), further degrading the water quality of the Waihou and adding to impacts of excess nutrients and sediments to the Waihou and the Firth of Thames.

[44] Sampling of the water occurred between 4.00 and 8.75 hours after the pumps were restarted at the Treatment Plant. The time frame and distances to the receiving drain and downstream Mangawhero Stream mean that the measurements and samples collected are not representative of the conditions during the discharge event.

[45] The contaminant concentrations in the farm drain are likely to have been at concentrations where ammonia toxicity and physio-chemical stressor effects to aquatic species (if present) would occur.

[46] The increased loading of nitrogen and phosphorus, combined with other contaminants and physio-chemical stressors such as sediments (turbidity), organic matters, increased oxygen demand, and emerging contaminants, contributes to the cumulative impacts on the degraded water quality of the receiving Waihou River and Firth of Thames ecosystems.

Ngāti Hauā Iwi Trust

[47] The Court received a victim impact statement from Lisa Gardiner who is the chief executive of the Ngāti Hauā Iwi Trust. I record that Ms Gardiner noted that their relationship with their waterways lies at the heart of their physical, spiritual and cultural wellbeing. Ms Gardiner records that in 2016 Ngāti Hauā lodged the Ngāti Hauā Environmental Management Plan, which set clear expectations, with MPDC –

8 Summary of Facts, at [67] – [72].

noting that none of those expectations or policies have been upheld. She records that water is particularly important to Ngāti Hauā as it is considered to be the lifeblood of Papatūānuku (earth mother) that falls upon her as the tears of Ranginui (sky father). Ms Gardiner notes that the health and wellbeing of our freshwater resources are inherently connected to the health of our whenua and our health and wellbeing as a community.

Prosecutor’s submissions

[48] Ms McConachy submitted that the offending has had a significant adverse impact on the environment, as evidenced by the level of contamination of the Mangawhero Stream. Ms McConachy submitted that at its highest, the level of E. Coli in the stream was 500 times greater than the level that is safe for human contact. She later corrected that submission to note that the reference to that level was E. Coli found in the drainage system. I will return to this point later in the decision.

[49] Ms McConachy submitted that the testing conducted by both MPDC’s contractor and the WRC showed that the E. Coli cfu readings were significantly elevated at the discharge point and as far as 450m downstream, where a reading of 270,000cfu/100mL of water was recorded. This is despite sampling taking place well after the discharge ceased.

[50] Ms McConachy observed that in addition to the high contamination of E.coli, the discharge would have reduced the water quality of the Waihou River (of which the Mangawhero Stream is a tributary) which would, in turn, have had an adverse effects on the Firth of Thames ecosystems.

Defendant’s submissions

[51] Mr Neutze referred to various conclusions taken from the report prepared for MPDC by Pattle Delamore Partners Limited (PDP) dated October 2023, including:

• (a) based on the sampling results and the likely dilution of the ammoniacal nitrogen in the Mangawhero Stream, it is unlikely that the discharge

caused acute toxicity to the native fish community;9

(b) the discharges did not trigger acute toxicity in the Mangawhero Stream in relation to ammoniacal nitrogen based on sampling conducted on 10 April 2023;10 and
(c) the levels of microbial contaminants, namely E.Coli, were slightly

elevated in the Mangawhero Stream downstream of the discharge point.11

[52] Mr Neutze also noted that PDP in its report observed that the Mangawhero Stream had pre-existing elevated levels of E. Coli prior to the offending discharge event. On 5 April 2023 standard testing prior to the discharge showed that there was 1,600 E.coli/100mL against faecal indicator bacteria (E.coli). With reference to the bottom line allowance of 540 E.coli/100mL in the National Policy Statement for Freshwater Management 2020, this meant that even before the discharge there was an elevated level of E. Coli in the Mangawhero Stream.

[53] Mr Neutze submitted that the discharge event did not significantly increase the level of E. Coli in the Stream. Further, that there is no evidence that the discharge event caused long-term damage to the Mangawhero Stream. Although there was a transient increase in E. Coli levels, the discharge event did not trigger acute toxicity to the native fish community in the Stream. He did acknowledge, however, that the Court may have regard to the cumulative effect that an offence may have on the receiving environment.

Conclusion on the environmental effects

[54] While faecal coliforms upstream of the discharge point were elevated, readings taken at and downstream of the discharge point revealed raised levels that exceeded acceptable concentrations and made the water unsafe for human contact. The Mangawhero Stream is a tributary to the Waihou River, which is of significant cultural, spiritual, historical and environmental importance to Ngāti Hauā and other iwi. The

9 Pattle Delamore Partners Limited (PDP) report dated 30 October 2023, at page 19.

10 PDP report, at page 20.

11 PDP report, at page 20.

Court heard from Ngāti Hauā how important the health and wellbeing of waterways such as this are to the health of the whenua and the community.

[55] While there was some debate about the levels of faecal coliforms, no issue was taken with the conclusions in the agreed Summary of Facts, which I have outlined. I accept that the timeframe and distances to the receiving drain in the downstream Mangawhero Stream means that the measurements and samples collected are not representative of conditions during the discharge event, but it is clear that at the discharge point E. Coli levels were very high; and therefore that the potential effects referred to in the Summary of Facts are likely to have been adverse and would contribute to the cumulative adverse effects of contaminants on the receiving environment.

Culpability

Prosecutor’s submissions

[56] Ms McConachy submitted that the defendant’s offending was highly careless. She acknowledged that the offending was not deliberate, however. She submitted that there were steps the defendant should have taken to prevent the offence including implementing appropriate training, having a supervisor on duty, installing bunds or barriers, or implementing safeguards where alarms are also sent to supervisors.

[57] Instead, she noted that a sole wastewater operator was responsible for monitoring and actioning alarms, without any supervision. There was no “back up plan” in the event that a wastewater operator ignores or fails to receive multiple alarms. Nor did the system allow for human error. Ultimately, the lack of training, supervision and appropriate redundancy measures resulted in a significant discharge.

[58] Ms McConachy referred to steps taken to remediate the effects of the discharge, noting that the discharge ceased when a second wastewater operator noticed the issue and subsequently reset the pumps. The defendant began clean-up of the contaminated area shortly after, and arranged for testing to be completed. The defendant informed the WRC eight hours after the discharge was discovered.

[59] Ms McConachy advised that the WRC is not aware of any further steps taken by the defendant to remedy or mitigate against the impacts of the discharge, or to prevent further discharges from occurring.

[60] Ms McConachy also highlighted the breach of the resource consent, emphasising with reference to Otago Regional Council v Clutha District Council12 the importance of compliance with resource consent conditions:

The fact that this offending involved the breach of numerous conditions of the Defendant’s resource consents is a particularly aggravating factor in the offending. Resource consents are routinely granted by consent authorities subject to conditions which seek to avoid remedy or mitigate adverse effects. There is a presumption that such conditions will be complied with. Failure to do so strikes at the heart of the resource consent system and destroys confidence which the public should have in the integrity of that system. If, by way of example, when applying for its resource consents CDC had advised the Regional Council that it was not going to keep accurate records, was not going to comply with the requirements of its operation and maintenance manual and was not going to ensure that its discharges met certain quality criteria, it would not have got resource consents for the plants.

Defendant’s submissions

[61] Mr Neutze submitted that the offending did not rise to the level of highly careless, but accepted it was careless. He also submitted that it is relevant that the experienced operator employed by the defendant thought he had started the system. The location of the reset button had not caused issues before, and this was not a known problem. Indeed, Mr Neutze observed that this is the first time a discharge event has occurred at the Matamata Wastewater Treatment Plant due to the location of the reset button.

[62] He responded to Ms McConachy’s submission relating to training, supervisors, bunds or barriers and other safeguards, noting that:13

• (a) MPDC had implemented training managed by an internal organisational Learning and Development Team. Internal and external training was provided to staff and linked to the requirements of the job. There were documented processes for Wastewater Treatment Plants in Promapp covering the pump station and the use of SCADA. MPDC’s treatment plant operators were trained and considered to be qualified to work alone.
  

12 Otago Regional Council v Clutha District Council [2020] NZDC 26125, at [38]

13 Synopsis of Defendant’s submissions on sentence, dated 2 April 2024, at [23].

(b) As a small local authority, MPDC does not have the resources to have a second person on-call actively monitoring sites. However, MPDC had an alarm escalation system and if alarms are not acknowledged, the alarms escalate to the appropriate manager. This is not an unusual practice for smaller local authorities.

(c) In this case, somewhat surprisingly, the relevant alarms were acknowledged by the on-call operator (who assumed the alarms were false alarms), stopping the escalation process.

(d) Installing a bund or barrier would not have prevented the offence from occurring.

[63] Mr Neutze acknowledged that, with the benefit of hindsight and knowing now what occurred, other steps could have been taken. However this was not a foreseen occurrence. Further, implementing constant supervision and redundant back-up systems for every possible point of failure is prohibitively expensive and not realistic. Referring to the breach of the resource consent, Mr Neutze acknowledged that the discharge breached the consent, but submitted there was no systemic non-compliance; rather the operator unexpectedly made errors which were not previously contemplated or foreseen.

Conclusion on culpability

[64] I find that the Council’s offending was highly careless but not deliberate. While the events leading to the discharge were unfortunate and somewhat unusual, the fact remains that no fewer than five alarms were ignored by the Council’s wastewater operator. I acknowledge the Council’s advice that problems with the reset button had never occurred before, and that economics prevent constant supervision. The fact remains, however, that multiple alarms were raised and their being ignored had serious consequences. When there is the potential for adverse effects to occur when key infrastructure (mechanical or people) supporting an activity fails, it is essential that there be back-ups in place to guard against further failure or to ensure that advice of the problem gets to the right people, enabling action to be taken. Here reliance was placed on one person, and when the seriousness of the problem was not recognised there was no default mechanism by which others could be advised. It was not until another wastewater operator logged into the database that a problem was identified and the pumps switched on.

[65] I note that the Council has set about remedying that situation, which I address later in this decision.

Starting point

[66] Ms McConachy referred to the following cases that she submitted may assist with sentencing: Waikato Regional Council v Hamilton City Council (Hamilton City Council 2022);14 Taranaki Regional Council v New Plymouth District Council (New Plymouth);15 Manawatu-Wanganui Regional Council v Rangitikei District Council (Rangitikei);16 Waikato Regional Council v Hamilton City Council (Hamilton City Council 2019);17 and Waikato Regional Council v Matamata-Piako District Council

14 Waikato Regional Council v Hamilton City Council [2022] NZDC 17901 – one charge of unlawfully discharging wastewater (including sewage) into water. There was a partial blockage in the wastewater mains, as designed the wastewater overflowed to the stormwater mains systems, then discharged to the tributary via a stormwater outlet. The discharge continued for nine days. The Court found that the offending would have had high adverse effects on the tributary and local environment, with low to moderate effects on the Waikato River. The Court also recognised the cultural effects of the offending because of the significance of the Waikato River to Waikato-Tainui. The Court found HCC to be highly careless, there was a communication breakdown, insufficient awareness of the proper way to notify suspected problems, and the monitoring system was such that a partial blockage was not as noticeable as a full blockage. Starting point of $90,000.

15 Taranaki Regional Council v New Plymouth District Council [2021] NZDC 3372 – one charge of discharging industrial wastewater and untreated sewage from a pump station into the Mangati Stream. The discharge involved 1500 cubic metres of contaminant being discharged over nine hours, creating odour and discolouration which extended out to sea for almost one kilometre. The discharge was lethal to fish species, with many dead fish observed in the stream including three at risk species. Primary responsibility for the discharge lay with City Care Ltd and its inadequate response to the alarms that went off. The District Council had acknowledged its vicarious liability. The Court found a high degree of culpability attaching to CCL due to its failures. Starting point for CCL was $150,000, for Council was $95,000.

16 Manawatu-Wanganui Regional Council v Rangitikei District Council [2020] NZDC 12891 – one charge of discharging human effluent into water over four days. The river was a popular recreational site with a swim spot zone in the vicinity of the discharge. While there was no evidence provided of actual physical effects, the Court stated that the discharge of sewage to waterways was repugnant, prohibited by the regional plan and caused cumulative adverse effects to the river waters, potential adverse effects to human health and caused specific cultural offence to Māori. Regarding culpability, the Court accepted that both councils at first mistakenly assumed that the discharge was coming from the pump station itself. It was not until the district council had undertaken extensive investigation that it was discovered that the effluent was coming from an overflow pipe manhole. Nevertheless, the Court stated that the district council had to accept responsibility. Starting point of $80,000.

17 Waikato Regional v Council v Hamilton City Council [2019] NZDC 16254 – one charge of permitting the discharge of wastewater, containing untreated human sewage, into water. Two mechanisms failed. An estimated 1,782 litres of wastewater discharged into the Waikato River. The discharge would have had a relatively insignificant physical adverse effect. However, the cultural effects to iwi were described by Waikato-Tainui and acknowledged by City Waters. The Court characterised the adverse environmental effects as moderate, given the high volume of discharge, its untreated nature, its location and the cultural effects. Council found to be careless because the supposedly failsafe system failed as the result of human error. Starting point $80,000.

(Matamata-Piako).18

[67] Ms McConachy submitted that the offending, to the extent it is analogous to dairy effluent offending, would fall within Level three of the levels in Waikato Regional Council v GA & BG Chick Ltd,19 being offending occasioned by a real want of care featuring a large one-off event with a disregard for the effects on the environment.

[68] Ms McConachy submitted that the offending is similar in seriousness to Hamilton City Council 2022 and New Plymouth, but more serious than Rangitikei and Hamilton City Council 2019. She submitted that it is more serious than Rangitikei because the duration and volume of the discharge in Rangitikei was not clear and it is more serious than Hamilton City Council 2019 because there is higher volume and duration. She submitted that an appropriate starting point is in the range of $95,000-

$100,000, taking into account the following factors:

(a) the extensive volume and duration of the discharge is reflected by the fact that the charge is for a continuing offence under s 339(1A) of the RMA;

(b) the significant levels of contamination that were potentially harmful to aquatic life and human health;

(c) the inadequate training, protocols and back-up systems in respect of the wastewater treatment plant operator who cleaned the wetwells and subsequently ignored the plethora of alarms; and

(d) the fact that the discharge was into a tributary which flowed into an ecologically vulnerable and culturally important river.

18 Waikato Regional Council v Matamata-Piako District Council [2020] NZDC 7135 – representative charge of permitted the discharge of wastewater containing untreated human sewage from a broken wastewater pipe and overflowing wastewater network access manhole onto land where it in fact entered an unnamed tributary of the Piako River. Samples revealed elevated E.coli contaminant levels. While there was no evidence of long-term damage to the river, there was potential for damage. The Court assessed the culpability as moderate regarding the first discharge and moderately high for the second. Overall, the culpability was assessed as between moderate and moderately high. Starting point of $70,000.

19 Waikato Regional Council v GA & BG Chick Ltd (2007) 14 ELRNZ 291 (DC).

[69] Mr Neutze addressed Hamilton City Council 2022, New Plymouth, and Rangitikei. He also referred to Waikato Regional Council v Wellington Water Limited.20 The offending in that case was a discharge of approximately 5,000m3 of wastewater and activated sludge (approximately 1,000m3 of activated sludge discharged) from Porirua’s wastewater treatment plant at an outlet at Rukutane Point, creating a visible plume stretching in excess of 200 metres. The offending had a moderate effect on the environment, considering the amenity values of the coastal area and the potential harm for people coming into contact with the discharge. Mr Neutze noted that there was a cascade of failures by staff that amounted to a very high level of carelessness and the situation where alarms were ignored, not working properly, not being received, or only investigated in a cursory manner bordered on recklessness. The starting point for sentencing was $90,000.

[70] He submitted that in contrast to the present case, there was not a cascade of failures by staff. Rather, there was an unexpected failure by one staff member. Mr Neutze submitted that the starting point in New Plymouth of $95,000 would be too high because no aquatic life were killed here. In contrast to Rangitikei where the starting point was $80,000, the discharge here was over a shorter period and there was no abatement notice. He submitted that a starting point of $80,000 is too high and that

$75,000 is appropriate.

Conclusion on the starting point

[71] I find that the offending is at the upper end of Level two offending in the Chick sense rather than the Level three the prosecution has claimed. Level two of Chick is moderately serious offending. This range of offending reflects unintentional but careless discharges usually of a recurring nature over a period of time, or of incidents arising from the malfunction of different parts of the system. The offending is often manifested by a reluctance to address the need for a safe system, resulting in delays in taking restorative action. It also reflects little, or at the most a moderate, effect on the environment.

20 Waikato Regional Council v Wellington Water Limited [2019] NZDC 18588.

[72] I have found the Council was highly careless and that the effects on the environment of the offending were serious. It is regrettable, but inescapable, that numerous alarms were ignored and a discharge of effluent over a period of some days resulted. Steps taken since the discharge will assist in ensuring there is not a repeat of this incident. I endorse the Court’s observations in Waikato Regional Council v Contact Energy Limited:21

• [73] In my judgment, the key factor in the setting of a starting point for this offending was the failure by Contact’s staff to respond to the warnings and alarms produced by its own system. The presence of automatic switches to control pumping in the event of abnormal readings from the pipeline is something that might have protected against human error, but even without those the system overall still afforded a margin of a few days in which the staff could have done what the system did not. ...
  
• [74] The process of controlling activities such as this under the RMA, including considering applications for resource consent and imposing conditions on the grant of resource consent, typically includes a careful examination of systems of this kind to ensure that they are robustly designed to protect the environment. This is especially so where the nature of the activity and the potential for it to create adverse effects on the environment require clear limits and strong controls to achieve such limits. All of the care and attention required of participants in the planning and consenting framework of the RMA is wasted if the alarms built into the system are disregarded by operators and no action is taken to intervene on a timely basis.
  

[73] The result of MPDC failing to respond to the alarms raised by its systems, and avoid the discharge, means that the overall gravity of the offending is high. Operators of a plant in these circumstances, who rely on warning systems to avoid unlawful discharges, must realise that a failure to heed warnings will result in a sizable penalty. However, I consider that a starting point in the range suggested by Ms McConachy is too high in the circumstances and that a starting point of $90,000 is appropriate, having regard to the circumstances of this offending and to the cases to which I was referred.

Aggravating and mitigating factors

[74] Ms McConachy observed that since 2012 the defendant has been investigated ten times by the Regional Council relating to treatment plants at four locations. It received formal warnings on nine of those occasions. In December 2018 the defendant pleaded guilty to, and was subsequently convicted, on a representative charge of

21 Waikato Regional Council v Contact Energy Limited [2020] NZDC 24794.

discharging wastewater where it was fined $49,875 from a starting point of $70,000. Ms McConachy submitted that there are aggravating factors personal to the defendant, and because of their previous conviction an uplift of 20 per cent to the starting point, in line with Hamilton City Council 2022, is appropriate.

[75] Mr Neutze opposed an uplift and suggested that no uplift was appropriate. Failing that, no more than five per cent would be sufficient. He referred to the previous offence, but noted that the offending did not involve the Matamata Wastewater Treatment Plant or in fact a treatment plant at all. Rather, a wastewater pipe was broken by a fallen tree and the offending related to the Council’s response to that broken wastewater pipe which formed part of the Morrinsville wastewater network (not part of Matamata). In the midst of addressing the issue, a decision was made to postpone the repair work and stand all staff down for the night. That resulted in an unabated discharge of untreated wastewater into the environment overnight.

[76] In relation to Hamilton City Council 2022, Mr Neutze observed that the second prosecution was within two years from that current offence, and was described as occurring in extremely similar circumstances. He submitted that none of those considerations apply here as the prior offending by the defendant was more historical (about 4.5 years prior) and related to entirely different circumstances and to an entirely different failing. He submitted that given that the offending was very different in nature and location no uplift is appropriate. The loss of a prior good conduct discount is sufficient to take into account that prior conviction. Alternatively, if an uplift is considered appropriate, which he denied, a modest uplift of no more than five per cent would be sufficient.

[77] I acknowledge that the previous offending occurred in quite different circumstances arising from an accident. I agree with the defendant that the loss of a previous good character discount is sufficient to take into account that prior conviction.

Mitigation

[78] Ms McConachy submitted that there are no mitigating factors. In contrast, Mr Neutze argued that a discount of 10 per cent is appropriate having regard to the

defendant’s cooperation with the Regional Council during the investigation, its responsible upgrade of its systems and training, its full acceptance of responsibility for the discharge, its genuine remorse and its offer to attend restorative justice with iwi. Mr Neutze recorded that an offer of restorative justice was made in November 2023 but was declined.

[79] Mr Neutze advised that the Council deeply regrets that the discharge occurred. It accepts full responsibility for the decision-making of its staff during and following the discharge event.

[80] Mr Neutze also referred to further steps to remedy or mitigate the impacts of the offending and prevent further discharges:22

26. The Human Machine Interface system has been reprogrammed to move the lockout button away from the reset button, as well as to require an operator pin number to activate the lockout. This was in direct response to the events which occurred in this case.
    
27. Additional improvements to the alarm system have been made to allow for additional modes of escalation on alarms. This utilizes MPDC’s new SCADA system capability, such as having a class of alarms which notify all members of the escalation tree when triggered, or escalating alarms that are acknowledged if they remain in the alarm state.
    
28. There has been an update of Piping and Instrumental Diagrams (PNID) and Functional Description (FDs) for sites to provide operators with better information regarding plant function.
    
29. MPDC will also engage Process Engineering support who will also measure operator competency annually.
    
30. These are all steps taken to try to ensure best practice, rather than mere compliance and which have been taken in a direct response to the discharge event.
    

[81] Following the hearing, Mr Neutze sought and was granted leave to provide evidence and a fuller explanation to the Court addressing MPDC’s cooperation with the Council and the efforts to arrange a restorative meeting with Ngāti Hauā. MPDC advised – supported by evidence from Nerida Anne Turner, Compliance and Improvement Manager at the Council:

22 Synopsis of Defendant’s submissions on sentence, dated 2 April 2024, at [26] – [30].

(a) four of its employees were interviewed and answered questions put to them;

• (b) delays in providing sample results to WRC were due to PDP not providing the preliminary report until June 2023;
  
• (c) issues about compliance with its resource consent, in terms of the timeframe for reporting breaches, were not directly in issue in the

proceeding. In any event, written notice of the discharge was provided within the required timeframe while the PDP report was not provided until June;

(d) Ngāti Hauā were notified of the discharge on 14 April 2023. The Chief Executive Officer and Mayor apologised to Ngāti Hauā separately.

[82] Ms McConachy responded to the further evidence with a memorandum and an affidavit from Scott Hunter, Investigator for the WRC. WRC advised:

• (a) it does not dispute that certain of MPDC’s employees were interviewed;
  
• (b) it does not accept it was notified of the discharge as soon as practicable. It was not provided with a written report as required by the Resource Consent within seven days;
  
• (c) it applied for a Production Order because it felt it had no other option to obtain information that had been requested. Further, while sampling was undertaken and the samples delivered to the laboratory on 11 April, with results provided on 27 April, it nevertheless took two more months for MPDC to provide the results to WRC.
  

[83] In determining whether there should be a discount for cooperation, I am assisted by Williams v R23 where the Court of Appeal held that the key determinant of the discount to be given for assistance will generally be its value. It referred to other factors such as the nature of the assistance and the degree of personal risk. It concluded that it would count for little if the information has no practical value.

23 William v R [2011] NZCA 384.

[84] I find that the information the Council provided is no more than would be expected from any other defendant in these circumstances. Further, I conclude that the Council has not followed up on its suggested restorative justice process as I have not received advice of that. I note that Ngāti Hauā’s refusal to participate in such a process was expressed as being not interested “at this stage”.

[85] In those circumstances, I do not allow any discount for cooperation or improvements made to the Council’s systems. Those improvements will help in ensuring that there is no repeat of the incident that led to the discharge occurring.

[86] A discount of 25 per cent is appropriate for the early guilty plea.

Outcome

[87] I have applied the two-step sentencing process following Moses v R.24

[88] Having already convicted Matamata Piako District Council I fine it $67,500.

[89] I make an order pursuant to s 342(2) of the RMA, that the fine less 10 per cent Crown deductions is to be paid to the Regional Council.

[90] I also make an order pursuant to the Costs in Criminal Cases Regulations 1987 for solicitor’s costs of $113 to be paid to the Regional Council.

Judge MJL Dickey

District Court Judge | Kaiwhakawā o te Kōti ā-Rohe

Date of authentication | Rā motuhēhēnga: 22/07/2024

24 Moses v R [2020] NZCA 296 at [46].