A recent sentencing decision demonstrates the difficulty for defendants hoping to establish successful defences to charges under the Resource Management Act 1991 (Manawatu-Wanganui Regional Council v Land Meat New Zealand Limited).
Land Meat New Zealand Limited (Land Meat) had pleaded guilty to discharging a contaminant, being meat processing waste water, onto land in circumstances where it may have entered water (i.e. breaching s 15(1)(b) of the RMA). It sought to rely on s 341(2)(b) of the RMA which provides parties with a defence if it can be proved that the action/event to which the prosecution relates was beyond the control of the defendant and not reasonably foreseeable. Land Meat was unsuccessful.
The Court held that, despite mitigating the effects expediently, it was nonetheless reasonably foreseeable that an offending discharge would occur if there was a system breakdown. There were also measures available to Land Meat to prevent the discharges that occurred.
Facts
Land Meat operated a meat processing plant in an industrial area close to the Whanganui River. As part of its processing operations, waste water flowed through a series of traps, filters, screens and a sump, separating out solids from the water. The water flowed from the plant’s waste water system to the Whanganui District Council’s trade waste system, which was monitored by the council.
On 2 March 2017, the council while undertaking its routine monitoring, observed that there was no effluent coming through the flume from the plant to the council system. This indicated that there was a system break-down. The council went to the plant and saw waste water running out of the area housing the sump and followed the flow to the River.
Land Meat’s explanation was:
- The sump was usually serviced by two pumps; a primary and back-up pump. The primary pump had failed the previous month and was out for repair. The backup pump was the only pump in operation on the day in question, though an electric pump had been hired as a temporary back-up while the primary pump was being repaired.
- On the day the discharge occurred the backup pump failed due to a build-up of fat solids. This was quickly identified and processing stopped. The electric hire pump was installed so that processing could re-start.
- The electric hire pump then failed as a result of a staff member accidently kicking the cable – this was sucked into the pump and the pump failed.
Strict liability and defences
Offences under the RMA are strict liability. However, s 341(2)(b) provides a defence in circumstances where:
- The action or event to which the prosecution relates was due to an event beyond the control of the defendant, including natural disaster, mechanical failure, or sabotage; and
- The action or event could not reasonably have been foreseen or provided against by the defendant; and
- The effects of the action or event were adequately mitigated or remedied by the defendant after it occurred.
The defendant must give written notice of its intention to raise this defence within seven days of service of the charging documents.
In this case, Land Meat raised the defence in time. It was also generally accepted that Land Meat had adequately mitigated the effects. The issues remaining were therefore whether the event or action was beyond the control of Land Meat and not reasonably foreseeable.
Decision
The Court did not accept that the discharge was beyond Land Meat’s control. Firstly, it was not true that Land Meats had to contend with the simultaneous failure of three separate pumps. In fact only two pumps had failed on the date of the incident. Secondly, the first pump had failed because of the build-up of fat solids. Second, no evidence was given explaining why the build-up of solids that are an ordinary component of the waste water and that requires on-going monitoring was a matter beyond the control of Land Meat. A maintenance regime should have been in place to avoid this occurring. Finally, the failure of the third electric hire pump was not beyond the control of Land Meat– adequately securing or protecting the power cable to this electric pump could well have avoided the pump’s failure and in turn the discharge.
The Court proceeded to find that it was also foreseeable that such a discharge could occur and that Land Meat should have had measures in place to deal with a spillage. Land Meat acknowledged that any wastewater would flow onto hard surfaces surrounding the sump and, because of the geography of the site, any such discharge would then flow, as storm-water did, to the River. There were options available to Land Meat to prevent any such flows entering the River (for example, bunding of the area and adequate maintenance of the pumps to prevent fat build-ups).
The Court held that Land Meat failed to make out the defence.
Take home points
The threshold for proving a defence, despite only being on the balance of probabilities, is high. There are very few examples of defendants successfully making out this defence. Councils should accordingly take a robust approach to any suggestion that there may be difficulties establishing liability for offending on the potentially availability of this defence.
Councils should be aware that the timeframe for a defendant being able to raise a defence is short. The clock starts ticking once charging documents have been served. A defendant attempting to raise the defence out of time will need to establish a good basis for the delay. Councils should also not accept notices from defendants raising the defences that do not adequately meet the requirements of sub-section (3) – the defendant needs to specifically set out the facts relied upon as establishing each of the three elements of the defence.
Finally, Land Meat is a reminder that the reasonable foreseeability analysis of the defence is focussed on the event with which the prosecution is concerned (the discharge of waste water from the treatment area) rather that the specific failure which caused the event (failure of the pump). Practically speaking, this means that a defendant needs to consider how to mitigate the effects of an action or event that is beyond its control and ensure that adequate protections are in place to address such eventualities.
