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District Court of New Zealand |
Last Updated: 30 November 2024
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IN THE DISTRICT COURT AT WELLINGTON
I TE KŌTI-Ā-ROHE
KI TE WHANGANUI-A-TARA
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CRI-2023-085-001305
[2024] NZDC 27445 |
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WELLINGTON CITY COUNCIL
Prosecutor
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v
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LIFFEY STREET LIMITED KUMAR VASIST
Defendants
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Hearing:
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24 October 2024
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Appearances:
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N Whittington and K Lee for the Prosecutor
R J B Fowler KC and M R C Wolff for the Defendants
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Judgment:
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19 November 2024
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NOTES OF JUDGE L J SEMPLE ON SENTENCING
[1] Liffey Street Ltd and Mr Kumar Vasist appear for sentence on 14 charges relating to development at 27 Liffey Street, Island Bay, Wellington.
[2] Both Defendants have pleaded guilty to the charges.
[3] The Agreed Summary of Facts (SOF) records that Liffey Street Ltd was granted a land use consent in February 2022 to undertake a residential development at 27 Liffey Street.
WELLINGTON CITY COUNCIL v LIFFEY STREET LIMITED [2024] NZDC 27445 [19 November 2024]
[4] The consent conditions required that all earthworks be monitored by a suitably experienced and qualified Chartered Professional Engineer and that an Erosion and Sediment Control Plan (ESCP) comprising certain characteristics (as set out in the conditions) be developed and certified by Council. The land use consent does not authorise any discharge of contaminants.
[5] Earthworks commenced on site at some time between February and August 2022.
[6] On 18 August 2022, a site inspection by Council found that contrary to the consent conditions no erosion and sediment control measures were in place, a stockpile of exposed earth was apparent with no geotextile covering and the site entrance had not been overlaid by aggregate. Sediment laden water was observed to be discharging from the site onto Liffey Street.
[7] An abatement notice was served on Liffey Street Ltd in relation to these matters on 26 August 2022. A subsequent site visit by Council on 6 September 2022 identified that the stockpiled material remained uncovered, and the entrance had not been overlaid by aggregate, but a silt fence had been erected. The fence did not however cover the lower eastern corner of the site and dirty water was discharging from the site as a result.
[8] A further site visit on 19 September 2022, identified that the stockpiled material had been removed, no silt fence was now in place nor were any other erosion and sediment controls. The entrance was still not overlain by aggregate as required. Sediment laden run-off was observed to be discharging from the site and entering the stormwater drain. As a result of these observations a second abatement notice was issued on 22 September 2022. A subsequent site visit on 29 September 2022 identified that no erosion and sediment control measures were yet in place.
[9] Site visits on 1, 2, 3, 6, 7 and 10 October 2022 identified sediment laden water “running across the footpath and into the kerb and channel on Liffey Street, and down into the stormwater drain”. No erosion and sediment control measures were observed to be in place.
[10] On 3 October 2022, Council wrote to Mr Vasist, as the sole director and shareholder of Liffey Street Ltd, to advise that the ongoing failure to comply with abatement notices and the conditions of consent would result in an escalation of enforcement action by the Council. An interim enforcement order was sought and granted on 3 November 2022 requiring that, inter alia, all earthworks at Liffey Street cease and not recommence until such time as the Council’s Compliance Monitoring Officer had confirmed that adequate erosion and sediment control measures were in place.
[11] Council subsequently inspected the site at monthly intervals between February and May 2023. On each occasion, there were inadequate erosion and sediment control measures in place and sediment laden water was discharging from the site and into the stormwater drain.
[12] The SOF identifies considerable correspondence from the Council to Mr Vasist during this period. Mr Vasist replied on only one occasion and did not address the question of the unlawful discharge.
[13] Charges in relation to the ongoing discharge were laid in May 2023.
Principles of Sentencing
[14] The High Court in Thurston v Manawatu-Wanganui Regional Council provides a useful summary of the approach to be taken to sentencing, which includes consideration of: culpability; precautions taken to prevent discharges; the vulnerability or importance of the affected environment; extent of damage; deterrence; capacity to pay a fine; disregard for abatement notices; co-operation and guilty pleas.1
Environmental Impact
[15] The SOF records that contaminated water entering the Council's stormwater system poses both a public health risk and a risk to aquatic ecosystems at the discharge point, which in this case flows through the Taputeranga Marine Reserve at Island Bay.
Taputeranga is identified in the Regional Coastal Plan for the Wellington Region as an area of significant conservation value. The SOF records it as a location of scientific research and home to 180 species of fish, kōura, kina, pāua, starfish, crabs, sponges and octopus.
[16] The Prosecutor accepts that there is no evidence of specific harm to the marine environment but submits that the effects of sediment in marine environments is well documented. The Prosecutor also points to the risks associated with sediment discharge blocking stormwater drains with subsequent impacts on people and infrastructure. The Defence acknowledges the risk (including the cumulative risk) of environmental harm but points to the lack of any evidence of specific lasting damage.
[17] The Court is well acquainted with the effects of discharging sediment and the implications of this for human and aquatic health. Even in an urban environment these risks are appreciable, and it is for this reason that consent conditions seek to manage this risk by the imposition of erosion and sediment control measures, as the consent authority did in this instance.
[18] Moreover, I accept as the Court did in Auckland Council v Opal & Joe Trustee Ltd that there “does not need to be evidence of “actual harm” in order for the Court to be satisfied that there are adverse effects on the environment from this type of offending”.2
[19] Sediment laden water was observed by Council officers to be discharging from the site on at least 13 separate occasions over a 10 month period. While there is no evidence that the discharge in this case created any particular environmental harm, I am satisfied that there were some adverse cumulative effects on the environment as a result of these breaches albeit at a low level.
Culpability
[20] The Prosecutor submits that the Defendants’ offending was at least “extremely careless” and could be classed as “deliberate” given the numerous attempts made by
2 Auckland Council v Opal & Joe Trustee Ltd [2023] NZDC 24579 at [51].
Council to have the situation rectified.
[21] The Defence argues the offending was a “regrettable failure to meet the required standards, rather than deliberate offending” and points to the fact that the Defendants engaged a geotechnical engineer as evidence of the care taken. It is the Defence position that particular “unique and unforeseen challenges” with the site complicated site management which meant the erosion and sediment control measures proposed for the site in the ESCP and which counsel submit “the defendants followed to the letter” were ineffective.
[22] On the evidence before me, I have difficulty accepting this submission.
[23] The SOF records that on all but one occasion on which site visits were undertaken no erosion and sediment control measures were in place. On the one occasion a silt fence was observed to be in place, it was not operating effectively. On the next site inspection, the silt fence had been removed. On all occasions when stockpiled earth was observed, it was uncovered contrary to the consent conditions (and I infer the certified ESCP). The entrance remained bare and uncovered by aggregate throughout, again contrary to the consent conditions.
[24] The SOF does not paint a picture of the Defendants and their geotechnical engineer struggling to manage a difficult site, whereby it might be expected that meaningful engagement with Council would occur and/or various erosion and sediment control measures might be trialled and modified over time.
[25] Rather the SOF records a situation where no measures were taken to control run-off until escalating enforcement orders were taken by Council and then the measure which was eventually taken (a silt fence) was inadequate and subsequently removed entirely.
[26] On the basis of the evidence before me, I am satisfied that having recognised they were developing on a difficult site, the Defendants took little to no steps to manage run-off to ensure contaminated water did not discharge from said site. In the circumstances the offending was highly careless becoming negligent once the issues
on site had been brought to the Defendants' attention. The Defendants are in the business of residential development and can be expected to know their obligations to comply with consent conditions. If a particular site proves more challenging than expected when applying for consent, the appropriate response to that is not to disregard the breach and continue with the development regardless. If, as the Defence suggest, the Defendants have learnt from this experience that is a positive outcome, however it is clear on the evidence before me that the Defendants paid little heed to the Council’s concerns and escalating enforcement actions during the process.
[27] In all of the circumstances I consider culpability to be high.
Starting Point
[28] The Prosecutor referred me to seven cases as being helpful to determining the starting point: Waikato Regional Council v Rex Holloway & Co Ltd, Otago Regional Council v Civil Construction Ltd, Otago Regional Council v Trustpower Ltd, Marlborough District Council v Laurie Forestry Services Ltd, Nelson City Council v KB Contracting and Quarries Ltd, Bay of Plenty Regional Council v CRS Tauranga Ltd and Bay of Plenty Regional Council v TBE 2 Ltd.3
[29] Each of these cases had some similarity with the offending in this instance, notably the absence or ineffectiveness of erosion and sediment control measures, however all were of a significantly larger scale than was the case here and/ or had greater actual adverse effects on the environment.
[30] The Defence provided no submissions on starting point or commensurate penalties in other similar cases.
[31] I have found the Defendants' culpability to be high and the actual adverse effects on the environment to be low while acknowledging the potential adverse consequence of cumulative discharges of this nature.
[32] I am also cognisant that the charges include contravention of an interim enforcement order. As the Court noted in Porirua District Council v McPhee:4
The issue of an enforcement order is the primary compliance mechanism available to the Court to ensure that persons meet their environmental obligations. If orders can be ignored with impunity or without consequence they lose their effectiveness. The Resource Management Act 1991 recognises that by making the breach of an enforcement order a crime carrying substantial penalties.
[33] In the circumstances I consider that it is appropriate to identify a single starting point for all of the offending, given as the Prosecution put it “it was a manifestation of the same ongoing failures with similar causes and effects”.
[34] On the basis of the above I set a starting point of $95,000.
Aggravating and Mitigating Effects
[35] The SOF identifies a number of enforcement proceedings against other companies associated with Mr Vasist at two sites in Brooklyn and Karori. Those matters also relate to unauthorised discharges to land. As such, I do not consider there is room for any good character discount.
[36] The Prosecutor accepts that some discount for a guilty plea is appropriate but submits this should be not more than 10 per cent given the plea was not signalled until preparation for a defended hearing was well advanced. I concur and apply a 10 per cent discount from starting point, resulting in a total fine of $85,500.
Ability to pay fine
[37] The Defence accepted that both Defendants were in a position to pay a fine.
Outcome
[38] I have adopted the two-step methodology outlined by the Court in Moses v R.
[39] I convict Liffey Street Ltd and impose a fine of $42,750. I order Liffey Street Ltd to pay court costs of $143 on each charge and solicitor fees of $113.
4 Porirua District Council v McPhee [2017] NZDC 27346.
[40] I convict Mr Kumar Vasist and impose a fine of $42,750. I order Mr Vasist to pay court costs of $143 on each charge and solicitor fees of $113.
[41]
In terms of s 342 of the RMA, I order 90 per cent of the fine to be paid to Wellington City Council.
L J Semple
Environment/ District Court Judge
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