Hefty fine imposed on farmer and director for pollution

A Waikato farmer, Mr Gurnam Singh, and his company B&B Singh Limited, have been convicted and fined a total of $63,000 for unlawfully discharging farm effluent into the environment at a farm in Morrinsville in August and September 2018.  The fine is the latest in a long history of environmental breaches for Mr Singh.  Judge Dickey also issued an enforcement order requiring the farmer to install appropriate effluent infrastructure on the property.

Background

The first inspection on 17 August 2018 found a pipe from the cow shed discharging effluent directly into the ground, as well an effluent holding ponds discharging on to adjacent land, resulting in ponding of effluent and posing risk of contaminated ground water.

Council inspectors visited the site again on 26 September 2018 to check whether the issue had been resolved.  The initial leak had been repaired but the pond was overflowing and discharging effluent on the other side.

Curiously, Mr Singh laid the blame at an unlikely culprit – telling investigators that the break in the effluent pond had been caused by “ducks wearing a track”.  Mr Singh said that he was aware the ponds were leaking and this had been as a result of a blow out during the winter causing a slight leak.  He had been waiting for the weather to improve and the paddocks to dry out so the ponds could be repaired.  As to decision-making on the farm, Mr Singh said that this rested on “his accountant, bank, himself and the rest of the people that worked there I suppose”.

Sentencing and comments

In setting the starting point, Judge Dickey considered various case authorities including the often cited decision of Waikato Regional Council v GA and BG Chick Limited, where the court provided guidance to assessing and distinguishing between different levels of dairy farm effluent discharge offending – albeit some time ago and prior to the increase in the levels of fines under the RMA.

The Court held that while the various cases were helpful, each case depends on its own facts and that aggravating features included the effects of the offending on the environment, the high level of carelessness of the defendants, attitude of the offenders, and lack of clear processes for monitoring the pond.

The Court stated that “it is unacceptable to be aware of the failings in a system and to not take steps to address those failings or mitigate them until they can be addressed”.  The Court took a starting point of $80,000, with a 10% for previous convictions and a discount of 25% for early guilty pleas.

The Court also imposed enforcement orders, requiring the defendants to arrange for an accredited designer to assess the effluent management infrastructure at the farm and establish what improvements are required to ensure compliance, with specific reference to the 2015 dairy farm effluent design standards and code of practice. The works must be undertaken by August 2020.

Enforcement orders are becoming more common in the RMA context and are a key tool available to councils to try to ensure compliance and instead act as the “ambulance at the top of the cliff”.

Rice Speir acted for the Waikato Regional Council in this case. A full decision can be read here.

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