High Court confirms starting point for dairy effluent prosecutions

In Yates v Taranaki Regional Council (High Court, New Plymouth, 14 May 2010) Justice Mackenzie approved a framework and scale of penalties for offending involving discharge of dairy effluent, by endorsement of the District Court decision in Waikato Regional Council v Chick. The Chick case established a starting point for dairy effluent offences as follows:

  • Level 1 — least serious — $0 – $15,000. This range of offending reflects unintentional one-off incidents occurring as a result of a system failure. There is little or no effect on the environment.
  • Level 2 — moderately serious — $15,000 – $30,000. 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 parts of the system. It reflects at the most a moderate effect on the environment.
  • Level 3 — more than moderately serious — $30,000 plus. This range of offending reflects the more serious offending that is deliberate, or if not deliberate, is occasioned by a real want of care. It is often associated with large plural discharges over time or one large one-off event.

The High Court appeal in Yates was decided prior to the significant increase of penalties from the Resource Management (Simplifying and Streamlining) Amendment Act 2009 which increased maximum fines under the RMA from $200,000 to $300,000 for a natural person, and $600,000 for corporates and unincorporated bodies. It is predictable that sentencing tariffs for offences under the RMA will continue to trend upwards reflecting the increase in the statutory maximum penalties.

Hearing sought on $300 infringement notice exposes defendant to penalty of $300,000!

Owners of a piggery prosecuted by way of an infringement notice (subject to a $300 “instant fine”) issued by the Otago Regional Council received a nasty surprise on being told by the Court that having taken the step of seeking a hearing on the infringement notice, the piggery became susceptible to the full financial penalty regime of the RMA of up to $300,000. The situation arises from findings of the High Court in Nelson City Council v Howard [2004] NZAR 689. Fortunately for the piggery owners the Judge limited the penalty to $300 on each infringement offence because the summary of rights in the infringement notice failed to warn recipients as to the potential liability for a higher penalty than the infringement fee should defendants seek to deny liability or even seek to submit on penalty: see Otago Regional Council v Bloem (District Court, Dunedin, 15 March 2010, Dwyer DCJ).