Wetlands: Sizeable sentencing penalties despite no direct evidence of ecological damage

January 2023

The Manawatu-Wanganui Regional Council v Donview Farms Ltd* case demonstrates the potential penalties for breaching effluent discharge consent conditions and the consequences of ignoring abatement notices. The case involved three defendants – the farm company, a non-operational director, and the farm manager.

What happened?

The non-operational director was granted an effluent discharge consent in 2011. Due to numerous permanent and seasonal wetlands on the property (considered to be rare or threatened habitat), the consent conditions required effluent to not be discharged within 50m of the wetlands and that an effluent storage facility was to be constructed by 2013 (amongst other conditions).

A Council inspection in January 2019 found that the effluent storage pond had still not been built and the Defendants were significantly non-compliant with other management conditions in the effluent discharge consent. As a result, the Council issued an abatement notice requiring the farm to address the problems.

The Defendants did install an effluent storage pond before the next inspection in February 2020, but they were still significantly non-compliant with their effluent management on farm. A second abatement notice was issued, directing the Defendants to provide an effluent management plan to the Council by 29 May 2020.

The third Council inspection in April 2021 recorded:

• breaches of both abatement notices, including that the effluent pond had never been used, and there was no effluent management plan;
• dark scum covering an area approximately 25 x 20 metres in a wetland area. A water sample taken from the wetland confirmed the presence of raw effluent run-off; and
• surface ponding of liquid and solid effluent in a paddock, and evidence of a blow-out below the effluent hydrant causing significant effluent ponding within the farm drain that flowed to a wetland.

The fourth and final inspection in July 2021 found that there was still effluent run-off occurring due to the shed effluent pump not working correctly. The storage pond was still not being used and an effluent management plan had still not been supplied to Council.

Sentencing

The Court determined the Defendants had reasonably high culpability because their effluent management had been substandard for many years, despite multiple warnings and instructions from the Council.

But, while there was evidence of effluent flow into wetland areas, the Court acknowledged there was no direct evidence of ecological damage. Had there been such evidence, the starting point for penalties would have been considerably higher. The Court also acknowledged that the area affected by the dark scum discharge was an induced (human-made) wetland. Overall the Court held that the offending fell within the middle band of offending (moderate level), but at the upper level of that band.

The Court determined that the appropriate penalty starting points were $80,000 for the discharge offending and $25,000 for breaching the abatement notices. A 25% reduction was given for prompt guilty pleas. While the Defendants had a previously clear compliance record and good character, no discount was given due to the long period of non-compliance associated with this offending. The final penalties were therefore $60,000 for the discharge offending and $18,750 for the abatement notices.

Diverting from usual practice, the Court then split the penalties evenly between the three Defendants. The Court was satisfied that they were essentially each others financial alter-egos, meaning a fine imposed on one would essentially be paid by the others. Each defendant was therefore fined $20,000 for the discharge offences and $6,250 for the abatement offences. The Court also put in place an Enforcement Order requiring all three defendants to get the effluent system and operational management up to scratch.

Key takeaways

• Abatement notices are serious and should not be ignored, even if the Council takes a while to check back in on you;
• There does not need to be a proven adverse ecological effect on a wetland for high culpability to be found; the risk of potential effect is enough for high culpability and moderately high penalties; and
• Non-operational directors can be implicated in on-farm operational issues

Need assistance?

If you have any questions about rules relating to wetlands on your property, or you may have a compliance issue, contact our Resource Management experts:

Johanna King (JK)- Senior Associate
johanna.king@tp.co.nz
021 917 140

Sam Chidgey - Senior Solicitor
sam.chidgey@tp.co.nz
021 221 1388

* Manawatu-Wanganui Regional Council v Donview Farms Ltd [2022] NZDC 20425

Special thanks to Samantha Couch for her assistance in preparing this article.