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Waikato Regional Council v Chisholm Farms Ltd [2018] NZDC 20594

Published 15 January 2019

Sentencing — unlawful discharge of effluent onto land — unlawful discharge of effluent into water — permitting contravention of abatement notice — appropriate starting point for fine — Waslander v Southland Regional Council [2017] NZHC 2699 — Resource Management Act 1991, ss 15(1)(b), 338(1)(a), 339(1)(b). The defendant faced sentence after pleading guilty to permitting a contaminant (farm animal effluent) to be unlawfully discharged onto land and into water, and to permitting the contravention of an Abatement Notice. The defendant was incorporated in 1994 and since that time the size of its dairy milking herd had grown from 300 cows to 700. However the defendant had not improved its effluent holding capacity to keep up with the growth in its business. The court noted that effluent pollution of ground water had been a topical issue for some years, and that the Waikato Regional Council and other authorities had undertaken extensive efforts to educate dairy farmers on their legal obligations. Council staff had inspected the defendant's property and observed that the effluent storage ponds were overflowing into a nearby stream. They issued an Abatement Notice several days later, prohibiting the defendant from unlawfully discharging farm effluent. They then undertook a second inspection, during which they observed that the defendant was undertaking irrigation in a manner that was likely to result in effluent entering the stream. Water samples taken on the days of both inspections showed effluent contamination with the potential to create significant adverse effects on local waterways. The court reviewed relevant authorities to assess the correct starting point for a fine. The court concluded that the offending was moderately serious. In relation to the first offence, the defendant hadn't managed the effluent system proactively enough; the second offence had involved a negligent employee. The court adopted a starting point for the fine of $85,000. Mitigating factors included the defendant's major upgrade of its effluent management system following the offending. Also the defendant was a first-time offender and had pleaded guilty at the earliest opportunity. For these reasons the court awarded the defendant a 25 percent discount. The final amount of the fine was $57,375. Judgment Date: 7 November 2018.