Environment Court Judges LJ Newhook and BP Dwyer sentenced the four defendants in the Whangarei District Court last month (September) and released their sentencing notes recently.
Appearing for sentence were contractor McBreen Jenkins, its employee Rob Wilson - who supervised the earthworks; project managers Lands & Survey Ltd and one of its directors Michael John Elrick.
Each of the four defendants had faced two charges laid by the Northland Regional Council (NRC) and linked to about 15,000 cubic metres of illegal cut and fill earthworks and sediment discharge from them. The earthworks – mainly across erosion-prone land - were carried out largely in January and February last year to construct about 10km of road at the Bream Tail subdivision. All eight charges were admitted.
Under the NRC’s Regional Water and Soil Plan, resource consent is required for more than 1000 cu m of earthworks on erosion-prone land within any 12 month period. While subdivision consent had been granted by the Kaipara District Council, NRC earthworks consent had not.
The Regional Council received a complaint about the earthworks in March last year and retrospective application for consent was eventually lodged in early May 2005.
The court heard there had been little actual environmental damage as a result of the earthworks, however, had there been heavier rain there could have been serious adverse effects to what had been marketed as a pristine environment.
The judges considered there was “an extremely sorry saga of fault on the part of all these defendants” and “the failure to undertake proper erosion and sediment controls in the early stages of the contract was a particularly serious breach, whether or not there was any requirement in the contract or any requirement in the resource consent to do so”.
“The measures taken were absolutely minimal and could have led to serious problems.”
In passing sentence, the judges noted that Lands & Survey, Elrick and Wilson had no previous convictions and commented on the good character of all three.
“In the case of McBreen Jenkins, the picture is quite different” and “our finding is that the company’s track record in this area is an aggravating circumstance…”
McBreen Jenkins had three previous convictions:
• 1997; an offence linked to discharge of diesel oil from a tank placed on land being prepared for subdivision where there had apparently been some interference by third parties
• 1998; $14,000 fine after discharge of several hundred cubic metres of rock, sediment and soil into a creek from one of company’s quarry operations
• 2000; $2000 fine after an incident where an employee – acting “other than in accordance with directions of the company” felled a rimu tree.
The company had also had seven infringement notices from NRC over a similar period.
The judges said the Regional Council had correctly submitted that with the Resource Management Act now in force for almost 15 years, Northland’s planners, surveyors, subdivision consultants and earthworks contractors should be well aware of their obligations.
The judges convicted all four, fining McBreen Jenkins a total of $45,000, Lands & Survey and Elrick a total of $12,500 each and Wilson a total of $2500. Judges also imposed $130 costs on each of the eight charges and directed that 90 percent of all fines be paid to the NRC.
Regional Council Acting Monitoring Manager Riaan Elliot says the Council is pleased with the sentences which reflect the seriousness of the offending. Mr Elliot says this case drives home a number of important points, including that there is a responsibility on all parties to meet legal requirements.
“Contractors, operators and other professionals need to take note that not only are companies liable for offences, but so too are the individuals actively involved in such projects, right down to the digger operator.”
Mr Elliot says the case has also demonstrated that the potential effects of not doing things right are just as important as the actual effects.
“Sediment controls in accordance with guidelines are required for permitted activities as well as consented earthworks and not just when it is wet. Northland is notorious for sudden heavy downpours at any time of year and all earthworks sites need to be secured against such events at all times. “