Ngā Takahanga RMA – Ngā Whakatau Whakawā

Breach of RMA - Sentencing Decisions

Gisborne District Council has initiated prosecutions for the breach of the Resource Management Act  (RMA) following the investigation of compliance issues associated with resource consents and the Tairawhiti Resource Management Plan rules.

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Forestry companies

Investigation of compliance issues at a number of forests after the June 2018 rain events

In the first half of June 2018, the Gisborne region experienced a significant storm. Heavy rain over a number of days upheaved large amounts of logging debris and carried it onto roads and landings. Forestry waste flowed onto and into neighbouring properties, water bodies, and coastal areas across the region. The environmental impact was significant. Those prosecutions and judgements are:

Aratu Forests Limited appeared for sentencing on 2 charges for breach of s15(1)(b) RMA.

One charge relates to Wakaroa Forest and one charge to Te Marunga Forest. That between 1 June 2017 and 3 July 2018 the defendant discharged a contaminant (slash logging debris, waste logging material and/or sediment) onto land in circumstances where it may enter water.

Fined $379,500

Sentencing decision GDC v Aratu Forests Limited

DNS Forest Products (2009) Ltd pleaded guilty to a charge under s338(1)(a) of the RMA of contravening or permitting the contravention of s15(1)(b) of that Act. The contravention involved the discharge of contaminants - slash, logging debris, waste logging material, and forestry waste - onto land in circumstances where it then entered water.

Fined $124,700 and reparation of $6,500. DNS appealed that decision.

16 September 2020 - DNS Forest Products (2009) Ltd v GDC

High court decision on the appeal against conviction and sentence DNS Forest Products contained in the judgement of  Dwyer J [2020] NZHC 2437 on the grounds that Judge Dwyer failed to properly consider consistency in the treatment of DNS and the other parties involved.

The appeal was dismissed.

Sentencing notes District Court GDC v DNS Forest Products 2009 Ltd

Sentencing decision DNS Forest Products (2009) Ltd v GDC

PF Olsen Ltd appeared for sentence on one charge of breach of s15(1)(b) RMA by discharging a contaminant namely slash, logging debris, waste logging material and sediment (forestry waste) onto land in circumstances where it may enter water in June 2018.

Fined $198,000

Sentencing decision GDC v PF Olsen Ltd

Juken New Zealand Ltd sentenced on one charge for breach of s15(1)(b) RMA by discharging a contaminant (slash logging debris, waste logging material and sediment) onto land between 3 - 12 June 2018 in circumstances where it may enter water. In this case, the contaminant did enter water, namely various tributaries of the Mangapoike River.

Fined $152,000.

Sentencing decision GDC v Juken NZ Ltd

Other RMA prosecutions

For the breach of the Resource Management Act following the investigation of compliance issues associated with resource consents and the Tairawhiti Resource Management Plan rules. Those prosecutions and judgements are:

Michael Joseph Timothy Lane appeared for sentencing on 4 separate charges related to undertaking unconsented earthworks and breaching an abatement notice.

The earthworks were associated with forming a  2.7km long forestry track being developed on the farm to access a forestry block without obtaining the necessary consents, despite having been told he would be required to.  The parts of the property where the work took place is classified as “red” zone, which means very high erosion susceptibility and “yellow” zone which means moderate erosion susceptibility and resulted in the discharge of sediment from a number of sources which entered both permanently flowing and ephemeral streams on the farm. These streams flow into the Wairoa Stream which flows to the Waiomoko Estuary. The Wairoa Stream is identified in the Regional Plan as a protected water course. The Waiomoko River is identified in the Regional Plan as a key habitat for longfin eel. The Estuary is recognised in the Plan as an area of coastal significance.

Michael Lane was fined $112,000 together with total solicitor costs of $452 and total court costs of $520.

In imposing these penalties, Judge Dwyer identified the primary aggravating features of the offending as being the deliberateness of the defendant’s offending (he referred to it as “defiance”), the location of the works primarily in the highly erodible land overlay 3, the extensive nature of the works, and the discharges of sediment to watercourses resulting from the unlawful earthworks.

Sentencing decision - GDC v Lane

Tairawhiti Pharmaceuticals Ltd (TPL) were sentenced on 2 charges in breach of the Resource Management Act 1991 (RMA) when in November 2019 established a new 30 hectare manuka plantation near Te Araroa.

Around 3.1ha of works undertaken were within identified wetlands. The works impacted 1.5-1.9ha of wetland vegetation and 460m of drainage channels were excavated within the wetland.

TPL contravened section 9(2) of the RMA by using land in contravention of a rule in the Tairawhiti Resource Management Plan (TRMP) by modifying a regionally significant wetland (Te Whare Wetlands in Te Araroa).

TPL also contravened section 14(2)(a) of the RMA by taking water from said wetland. Section 6(a) of the RMA seeks to protect wetlands from inappropriate development as a matter of national importance. Only around 1.75 percent of Gisborne region’s original wetlands remain.

Fined $28,000

Sentencing decision GDC v Tairawhiti Pharmaceuticals Ltd

All 4 defendants faced one charge of breaching s9(2) RMA by carrying out earthworks in contravention of the Tairawhiti Resource Management Plan without a resource consent.

The 4 defendants were also charged with breaching s15(1)(b) RMA by discharging sediment onto land where it may enter water, as it did (into the Hamanatua Stream).

SHL, Bain and Kershaw were also charged with breaching s338(1)(c) by contravening an abatement notice.

The earthworks were associated with forming an access road to building platforms for houses and other related works on a 10 hectare steep, hilly rural lifestyle block located at Scarlys Way, Okitu.

The property is situated on Land Overlay 2 of the TRMP where resource consents are required for any earthworks involving more than 50 cubic metres of soil disturbance in any 3 month period.

Fined - AF Thompson Contracting Ltd  $37,500.
Fined - Scarly Heights Ltd $33,600.
Fined - Jonathan Norman Bain $36,000.
Fined - Patrick John Kershaw  $16,800

Sentencing decision GDC v Scarly Heights, Bain, Kershaw, AF Thompson

John Richard Bracken appeared for sentencing on a charge of s15(1)(b) RMA for discharging sediment from earthworks on his farm into a tributary of the Motu River which is a protected river system.  Due to financial information presented, a community-based sentence of 150 hours of community service was imposed in lieu of a monetary penalty.

Sentencing decision GDC v John Rickard Bracken

Each party appeared for sentence on 2 charges of modifying a wetland with consent in breach of s9(2) RMA, and damming or diverting water in the Kopuaroa Stream in breach of s14(2)(a) RMA.

In May 2019 the defendants carried out earthworks at the property to divert the Kopuaroa Stream away from the point where the access road to the quarry crossed the stream. Those earthworks involved the excavation of a 380 metre long channel (the diversion channel) and the creation of a bund in the Kopuaroa Stream to direct the flow of the stream to the west through that channel (rather than flowing along its original path to the north toward the point where the access road crossed the stream).

Kuru Contracting Ltd and Ricky Kuru jointly fined $49,000 (divided equally between them)
Te-Rangi Parata fined $19,500.

Sentencing decision GDC v Kuru and Parata

Compliance, monitoring and enforcement

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