Boyd v Taranaki Regional Council
[2022] NZHC 3451
•15 December 2022
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE
CRI-2022-443-000057
[2022] NZHC 3451
BETWEEN COLIN DAVID BOYD
Appellant
AND
Taranaki REGIONAL COUNCIL Respondent
Hearing: 13 December 2022 Appearances:
P J Mooney for Appellant
K J L de Silva for Respondent
Judgment:
15 December 2022
JUDGMENT OF GRICE J
(Sentence Appeal)
Introduction
[1] The appellant, Colin David Boyd, appeals his sentence relating to charges under the Resource Management Act 1991. The charges are for the discharge of contaminants into an unnamed tributary of the Mangatengehu stream, for reclaiming that unnamed tributary and for breaching of an abatement notice. He was fined
$95,750.00 in total.
[2] The appellant challenges the decision of the District Court arising out of a disputed facts hearing and the sentence imposed based on those facts.1
1 Taranaki Regional Council v Boyd [2022] NZDC 10744 [Disputed facts decision].
BOYD v Taranaki REGIONAL COUNCIL [2022] NZHC 3451 [15 December 2022]
Background
[3]The facts are taken from the notes of sentencing.2
[4] The appellant is the sole director of Miles Square Farms Limited (the Company). The Company owns a property (the farm) of approximately 480 hectares which is predominantly farmed as a dairy farm. There are six land titles across the farm, including Identifier TNJI/397 (the site), on which significant earthworks was being carried out.
[5] The Mangatengehu Stream and a tributary flow west to east through the farm. The tributary has large bends and pools within it, harbouring a riparian margin with vegetation on its banks.
[6] The purpose of the earthworks on the site was to reclaim part of the bed of the tributary. There was a discharge of sediment into the tributary because the silt and sediment controls were ineffective. This led to a complaint that the tributary below the site of the earthworks was discoloured.
[7] Between 27 October 2019 and 13 March 2020, a number of inspections were undertaken at the site. In particular, on 29 October 2019 council officers inspected the site and found that certain works had been undertaken to reclaim the bed of the tributary. The diversion included approximately 278 metres of the tributary having been reclaimed and removal of the majority of the associated riparian vegetation.
[8] On 30 October 2019 two abatement notices were served on the appellant: requiring him to immediately cease all earthworks and the associated silt and sediment discharge in contravention of rr 55 and 74 of the Regional Freshwater Plan for Taranaki (Abatement Notice 1); and requiring the appellant to install silt and sediment controls and ensure that runoff from disturbed areas is directed through the silt controls by 3 November 2019 (Abatement Notice 2).
2 Taranaki Regional Council v Boyd [2022] NZDC 19123 [Sentencing decision].
[9] On 4 November 2019 a reinspection was undertaken to assess compliance with these abatement notices. It was found that silt and sediment controls had been installed within the channel of the diversion but were insufficient to cope with significant rainfall. As a result, a significant amount of erosion had occurred within the channel of the diversion.
[10] On 21 November 2019 another inspection found contravention of Abatement Notice 1 though this did not lead to a charge. On 25 November a council officer spoke with the appellant about the inspection and advised him of the requirement to maintain silt and sediment controls at the site. A further abatement notice (Abatement Notice 3) was issued. It required the appellant to install silt and sediment controls and replace the ones that had failed, ensure all storm water runoffs from the disturbed area was directed through these controls, check and maintain the controls and replace any controls that fail.
[11] On 29 November a re-inspection of the site found yet another contravention of Abatement Notice 1. A large yellow digger was found at the site, although not in operation during the inspection. Further works had been undertaken – a large concrete culvert had been installed within the tributary and a significant amount of scouring and erosion was observed on the downstream (eastern) side of what was described as the “Large Culvert”. There was also evidence that further north and bordering on the boundary of the site further works had been conducted within the tributary. When asked about these newly discovered works, the appellant stated he believed he could do the works because he believed Abatement Notice 1 only applied to the immediate area of the diversion works.
[12] On 3 December 2019 a re-inspection of the site found that Abatement Notice 3 had been contravened. This gave rise to the charge for contravening an abatement notice under s 338(1)(c) of the Resource Management Act 1991. Although the silt and sediment controls were operating, they were offering minimum treatment.
[13] On 13 March 2020, a re-inspection of the site found again a contravention of Abatement Notice 3. There was heavy silting within the channel of the diversion and the installed silt controls were full and offering no treatment. No further silt and
sediment controls were installed and a significant amount of erosion of the batter of the channel of the diversion had occurred since the previous inspection. The controls had also not been maintained.
The disputed facts hearing
[14] The disputed facts hearing was centred on the effects of the offending. The hearing took place before a Judge of the Environment Court. The appellant claimed that the Council, in its evidence, had focussed on effects arising “not only from the works that are the subject of these prosecutions but also historic works”.3
[15] The appellant’s position was that over the last 25 years he and the Company had undertaken a significant amount of drainage work that included the construction of a diversion upstream of the part of the tributary which was subject to the current charges. That was the historic work referred to by the Judge as the original diversion, Diversion 1. The diversion that is subject to the current charges is referred to as Diversion 2. In response, the Council argued that the three experts from whom it had obtained reports had amended their reports to remove reference to Diversion 1 and had taken into account the impact of that removal in their analysis and conclusions. The appellant’s concerns remained that that these amendments did not substantially change the report writers’ conclusions on the environmental effects. Accordingly, Mr Boyd disputed those conclusions. Mr Boyd’s case, the Judge recorded, was that the historical works “must have adversely impacted the unnamed tributary”, and that those impacts should not be factored into the analysis of effects on the environment of this offending.4
[16] The Judge had before her the three reports (amended) from the Council provided by Mr D R Harrison (Director-Operations), Mr P J Deegan (Environmental Scientist – Freshwater biology), and Ms B R Zieltjes (Environmental Scientist) and a statement of evidence provided by a consultant engineer, Mr H R Barnes, for the appellant. The primary focus became Mr Harrison’s report and evidence and Mr Barnes’ evidence.5
3 Disputed facts decision, above n 1, at [3].
4 At [13].
5 At [10].
[17] Mr Harrison’s report concluded that the work undertaken to modify the tributary “has caused significant adverse effects on the environment, and still has the potential to cause further adverse effects on the environment”.6 Meanwhile Mr Barnes’ evidence was based on the geography of the area, the groundwater table, and aerial photographs of the farm with commentary on what they showed, including loss of vegetation and reduction of flows in the unnamed tributary.7 He did not address the environmental effects of the works under prosecution. The main areas of disagreement between Mr Harrison and Mr Barnes’ evidence were around what the aerial photographs suggested and the coloured plan sourced by Mr Barnes.
[18]All the experts were called and cross-examined before the Judge.
[19] The Judge found “beyond reasonable doubt that the unnamed tributary the subject of this prosecution would have retained either a permanent or intermittent flow of water, which would have supported instream biodiversity and which in turn has been adversely affected by Diversion 2”.8 Her Honour noted the only evidence she had on the effects of the offending works was that provided by the Council’s witnesses. Her Honour held:
[38]Having determined that the unnamed tributary in which works were undertaken was either a permanent or intermittent stream at the time of the offending works were undertaken, there is no basis to reject the evidence of the Council’s witnesses on effects.
[39]Further, I accept the evidence of the Council’s witnesses that their assessments and conclusions as to the effects of the offending relate to Diversion 2. Therefore, for the purpose of assessing the environmental effects of the offending, I would place significant weight on the reports of the Council’s witnesses.
Appeal
[20] The essence of the appeal is that the District Court Judge misconstrued the evidence relating to the environmental effects of the offending in that she failed to recognise that the dominant cause of any effects noted was in fact earlier drainage work undertaken by the appellant – work that was not the subject of the prosecution.
6 At [15].
7 At [22].
8 At [36].
The appellant says that the Judge misunderstood the effects of the historical works on the relevant flow of water and specifically:
(a)the Judge failed to recognise the significance of the cross-examination of Mr Harrison where he accepted that the solid blue lines drawn on that photograph fairly represented the flow of water that has originally flowed in the unnamed tributary. Mr Harrison said “but there is also potential for significant ground water to be entering the down stream channel which would result in a permanent flow”
(b)The key significance is that when the other Council experts, in particular Ms Zieltjes, referred to impacts they are taking measurements from a fully functioning stream whereas it is submitted that the effects of Mr Harrison’s evidence is that following the construction of Diversion 1 there is much less water flow.
(c)Mr Harrison acknowledged that he is not disputing that the flow was impacted and acknowledged later that he could not provide an actual measure as to the effect of the change in flow.
(d)Mr Harrison stated, after referring to a photo where Diversion 2 enters into a drain that ultimately makes it way to the unnamed tributary, “this demonstrates to me that given there is no contributing streams upstream of this photo, yet you can see flowing water within the channel, that flowing water occurs in these channels whether or not there is an upstream tributary and this is because the water from the ground water is seeping into the channel and causing it to flow”. The appellant says the importance of that acknowledgement is that the environmental effects on ground water is significantly different from streams flowing above ground.
Assessment
[21] Under s 244 of the Criminal Procedure Act 2011 the appellant has a right to appeal against his sentence. The appeal must be allowed if the Court is satisfied that
for any reason there is an error in the sentence, and that a different sentence ought to be imposed.9
[22] The Court of Appeal recently in Roulston v R10 noted that a determination on a disputed facts requires the Judge to make an evaluative assessment of the evidence. The appellate court has an obligation to consider the evidence and reach its own opinion on the facts and the dispute.
[23] In the District Court, it was noted by the Judge that Mr Boyd’s case was that the historical works must have adversely impacted the unnamed tributary and those impacts had not been factored properly into the experts’ analysis of the effects on the environment of that offending. On appeal, Mr Mooney refined his argument. In essence, it amounted to recapping the argument made before the District Court that it was the historical impacts which caused the most significant detrimental effects on the waterway. That is because the Judge had failed to recognise the significance of, in particular, the evidence of the Council expert Mr Harrison, in relation to the source of the water flowing into the unnamed tributary. Mr Mooney argued that Mr Harrison had accepted that there was “significant groundwater” entering the downstream channel rather than surface water. He argued that the relevance of that was that the Judge had misunderstood the environmental effects which would result from the fact that it was groundwater (largely) rather than surface water flowing into the channel.
[24] Mr Mooney submitted that the environmental effects on groundwater would be “significantly different from streams flowing above ground”.11 The evidential basis for that submission, Mr Mooney said, could be found in the evidence of Mr Harrison who had “acknowledged that there is no aquatic life and groundwater until it enters the stream.”12 In Mr Mooney’s submission, this was the “key issue which the Learned Judge overlooked”.13
9 Criminal Procedure Act 2011, s 250(2).
10 Roulston v R [2020] NZCA 255 at [20].
11 Submissions on behalf of appellant dated 5 December 2022 at [26].
12 At [26].
13 At [27].
[25] Mr Mooney said that evidence concerning the environmental effects given by the expert witnesses, Mr Deegan and Ms Zieltjes was undermined by Mr Harrison’s concession about groundwater. That was because if the water flow was as a result of groundwater, then any “measurements by either Mr Deegan or Ms Zieltjes as to fish diversity, or the like is irrelevant as they do not exist in groundwater.”14 Their evidence could therefore not be relied on by the Judge to assess the vulnerability or importance of the affected environment and the extent of the damage to it. Therefore, Mr Mooney argued, the Judge’s conclusion that the environmental effects were serious and ongoing was in error because the Judge had failed to recognise the effect of Mr Harrison’s evidence. As a result of the Judge’s error, the sentence was based on a misunderstanding as to the seriousness of the detrimental effects involved. The sentence was therefore excessive. Rather than the starting point taken by the Judge of
$75,000 for the discharge and reclamation charges and a further $20,000 fine for the Abatement Notice offence, Mr Mooney submitted that a starting point of $40,000 may have been more appropriate with an increase for the charge relating to the abatement notice and a discount for the appellant’s pleas of guilty, as well as his undertaking to carry out remedial work.
[26] The Judge had regard to three reports from experts called by the Council, against a background of several inspections and re-inspections and inadequate responses from the appellant to the Council’s concerns. Mr Harrison was an employee of the respondent. As Rivers Manager he had assessed the works undertaken by the appellant. He had qualifications in natural resource management and forestry, and over 13 years’ experience in river and drainage engineering works. Mr Deegan was also an employee of the respondent as an Environmental Scientist, Freshwater Biology. He had qualifications and experience in ecology and environmental science. Ms Zieltjes was an employee of the respondent as an Environmental Scientist and had science qualifications in biology. The expert called by the appellant, Mr Barnes, was a consultant engineer in private practice with civil engineering qualifications and experience in a wide range of engineering and construction projects. Mr Barnes did not make any findings on the environmental effects of Diversion 2 but directed his evidence to trying to prove the environmental effects were caused by historical
14 At [34].
earthworks. Mr Barnes accepted he was not qualified to give evidence as to the environmental effects.
[27] The appeal rests on the argument that the evidence did not allow a finding by the Judge that the relevant water the subject of the environmental testing, in particular by Ms Zieltjes, and Mr Deegan was largely groundwater that would not exhibit the biodiversity or have the same life supporting capacity that would have been the case if it had been largely surface water that had been flowing in the stream.
[28] I do not accept that submission. As Ms de Silva pointed out, the evidence was that while there may have been a significant groundwater contribution to the flow, this did not mean that there would be no aquatic life when the groundwater entered the relevant stream. In addition, the Judge was cognisant of the presence of significant groundwater in the flow. The appellant pointed out that:
(a)the Judge noted in her decision that there was a significant groundwater table relatively close to the surface from which a number of natural springs “either flow underground or on occasion break the surface. On that, he [Mr Barnes] and Mr Harrison were in agreement”.15
(b)the Judge noted that Mr Harrison considered the groundwater contribution to flow would have been significant.16
(c)Mr Harrison’s evidence when cross-examined on this issue had been that the water in the tributary “and all streams when it’s not raining comes from groundwater. This is no different.” He went on to say that “water in streams comes from other streams and water coming off the mountain, but it also comes from groundwater. There is a very well-known fact that there’s a clear connection between groundwater and streams and rivers. So therefore, the flow in streams and rivers is derived from groundwater other than when it’s raining”.17
15 Disputed facts decision, above n 1, at [23].
16 At [29].
17 Notes of evidence, cross-examination of Mr Harrison, at 14.
(d)Mr Harrison accepted that groundwater beneath the surface may have no aquatic life (although that was not necessarily the case), however, it did have aquatic life when it entered the stream.
[29] The text of the cross-examination of Mr Harrison, upon which the appellant had relied for his primary submission that the significant groundwater meant that there would be no or little aquatic life in the stream and therefore the environmental effects of diversion were far less than Ms Zieltjes and Mr Deegan had reported, insofar as relevant went as follows (emphasis added):18
Q. Isn't it the case that what's happened is that the channel has been dug down to a point where it's capturing underground water that would not normally be caught?
A. No, I don't agree with that. This demonstrates to me that given that there is no contributing streams upstream of this photo yet you can see flowing water within the channel, that flowing water occurs in these channels whether or not there is an upstream tributary and this is because the water from the groundwater is seeping into the channel and causing it to flow.
Q. And that's my very point. Is that the water in this channel has come from groundwater, hasn't it?
A. Just like the water in the, in this tributary, and all streams when it's not raining comes from ground water. This is no different.
A. Well no. Water and streams do not come only from underground water, they come from rivers and streams flowing off the mountain, don't they?
A. No, that's not right. You're correct in that water in streams comes from other streams and water coming off the mountain, but it also comes from groundwater. There is a very well-known fact that there's a clear connection between groundwater and streams and rivers. So therefore, the flow in streams and rivers is derived from groundwater other than when it's raining.
Q. In the open tributary, southern tributary that was ultimately impacted by these north south channels and so on, there was clearly water flowing at some point over the years in that tributary, wasn't there?
A. Yes, there would have been, yes.
Q. And you're saying to us that that was sourced, among other things, from groundwater?
A. Yes I am, yes.
Q. okay. I can't dispute that. But my question of you I suppose, comes down to this. That once that tributary was impacted by the north south channels, and we've gone through
- there was perhaps about four of them over 10 years or so?
A. Yes.
18 At 14-19.
Q. The only source of water would have been that channel that we can see there in 18A and 17A and so on, is groundwater, isn't it?
Q. It is, yes. And it's flowing water as you can see.
….
Q. Paragraph 10 of your reply, you say that the groundwater contribution to the flow would have been significant. Right?
A. Yes.
Q. Now normally the groundwater is by definition below the surface, isn't it?
A. Yeah, absolute-
Q. Until it bubbles through to a stream?
A. Absolutely. Yes.
Q. So when it's groundwater beneath the surface there's no aquatic life is there?
A. Not until it enters the stream. Although to be fair there is actually evidence of aquatic life existing in aquifers in Canterbury below the surface. Small shrimp life creatures
[30] The Judge referred to the evidence of Mr Harrison in her sentencing decision as follows:
[32]Mr Harrison made several observations about the effects of the recent works in his report:
14. The infilled channel has been completely removed from the environment and no longer provides natural ecological, hydrological and geological services.
…
18. The excavated channels are steep sided, run in straight lines with occasional 90 degree bends, and typically have a uniform cross- section and grade. The ground material that the channels have been cut into predominantly consists of loose gravels, sand overlain with clay, and a thin layer of topsoil (see Figure 5).
19. This gravel and sand material is highly erodible …
…
24. … The excavated channels have no riparian vegetation.
25. Riparian vegetation provides habitat and food for a range of native and beneficial organisms.
26. This reach was a stream of high naturalness that supported instream biodiversity and was a continuation of the natural channel upstream and downstream of the works area, allowing geomorphic processes, such as gravel transport and erosion, to happen naturally.
27. The excavated channel would not have the same life supporting capacity as the natural channel. Erosion rates will be high for many years, and geomorphic and hydrological processes will be altered indefinitely.
28. In my opinion, the potential adverse effects of infilling the natural channel and diverting the stream into an excavated channel will be significant and long lasting.
[33] Mr Harrison concluded that the work undertaken to modify the unnamed tributary “has caused significant adverse effects on the environment, and still has the potential to cause further adverse effects on the environment”. He said:
29. It is my view that the work undertaken to modify the unnamed tributary of Mangatengehu Stream on the Mile Square Farms Ltd Property on Derby Road, Tariki, has caused significant adverse effects on the environment, and still has the potential to cause further adverse effects on the environment.
30. Adverse effects include: pollution of water and the downstream streambed from a discharge of silt and sediment; habitat loss in downstream reaches caused by silt and sediment smothering streambed gravels and cobbles; habitat loss caused by the destruction of mature riparian vegetation; habitat loss caused by the destruction of the streambed over the modified reach.
31. Potential adverse effects include: ongoing silt and sediment loss caused by disturbed earth and erosion of the excavated channel; increased flood flows; reduced summer low flows; and a major adjustment to natural geomorphic processes causing an increase in downstream erosion, and damage and loss of capacity to downstream culverts and bridges.
32. The adverse effects have been significant and will continue for many years.
[31] Ms Zieltjes was clear that the biomonitoring survey upon which she relied to investigate the effects of the impacts of Diversion 2 were undertaken at four sample sites, which would not have been influenced by Diversion 1 or the works, upstream of
Diversion 1 due to the historic nature of Diversion 1.19 Under cross-examination Mr Zieltjes remained adamant that her survey assessed the impacts from Diversion 2. She said:20
Q. So the earthworks up there have had an impact on what you're recorded at site 2 and indeed site 3?
A. The earthworks and subsequent discharge of silt and sediment impacted site 3. The impacts on site 2 were predominantly due to the dewatering of the stream and the filling of the stream bed.
Q. Indeed though the effects have occurred long before the area that we've talked about but indeed have been impacted by earthworks to the west, closer to the mountain, of that diversion that was originally called diversion 1 and indeed by other north south channels that were constructed over the years, doesn't it?
A. The survey that I conducted was not assessing prior works that were occurring upstream of channel 2. My survey was designed to assess any impacts that silt and sediment, the discharge from diversion 2 had on the unnamed tributary.
Q. When with respect to site number 2 you say that the score is fair, MCI score is fair?
A. Yes, mhm.
Q. Would you agree with me that that reflects earthworks not only in the immediate vicinity but earthworks much closer to the mountain?
A. No, I disagree.
Q. Well were you aware that there had been significant earthworks closer to the mountain along what had been the course of that tributary over the years?
A. That's not what I was assessing with this biomonitoring survey.
Q. Okay. So were you not aware of that?
A. I was assessing the works in question which involved the infilling of the stream and the discharge of silt and sediment from diversion 2. ·
Q. Okay. Well let me put it to you another way. If you were told that there had been significant earthworks to the west, closer to the mountain, over a period of perhaps 10 or 15 years in which the flow within that tributary, that southern tributary, had been impacted, that must of itself impacted upon the score that you recorded at that second site. Would you agree?
A. No, that's a hypothetical question not relevant to the survey that I conducted.
19 Brooke Zieltjes’ Statement of Evidence at 7-10.
20 Notes of evidence, pages 26-29
(emphasis added)
[32] The appellant submitted that Ms Zieltjes had referred to detrimental impacts based on samples taken “from a fully functioning stream, whereas… the effects of Mr Harrison’s evidence is that following the construction of Diversion 1, there is much less water flow and indeed he makes particular reference to the significant groundwater.” This is not correct, Ms Zieltjes said Site 2 was undertaken in the dewatered reach of the affected tributary which she said showed "severely depleted macroinvertebrate populations".21
[33] The Judge commented on Ms Zieltjes evidence in her decision on disputed facts as follows:
[34]Ms Zieltjes was asked about the survey she conducted. She confirmed tht [sic] the survey was not assessing prior works upstream of channel
2. It was designed to address any impacts of Diversion 2.
[35]Ms Zieltjes was asked about prior earthworks in the vicinity and their effects. She maintained that she had not assessed the effects of those works
[34] In her sentencing decision, the Judge also referred to Mr Zieltjes report as follows:
[35]Ms Zieltjes' report concluded:
Extensive sediment was evident throughout the Stream below the unauthorised earthworks. The impacts from the sediment discharge from the works will likely be problematic for some time. It is probable the sediment will only be removed by high flows, and is expected to require numerous floods to be completely removed, provided there is no additional input of sediment into the Stream. Overall, in my opinion, the unauthorised earthworks and reclamation of the Stream has resulted in significant loss of high quality macroinvertebrate habitat. It has resulted in the displacement and likely death of numerous macroinvertebrates and fish. These works resulted in the discharge of sediment into the Stream, which will have had chronic impacts on biota for hundreds of metres downstream.
21 Brooke Zieltjes’ Statement of Evidence at 9.
[35] The Judge also had before her, the evidence of Mr Deegan. She outlined his summary and conclusion in her sentencing decision as follows:22
[34] Mr Deegan’s summary and conclusion includes:
The stream channel that was altered by reclamation no longer provided any suitable permanent fish habitat as a result of the infilling of the Stream. The work likely resulted in the loss of all fish within that 278 metre stretch (as per the agreed summary of facts) of stream, by result of crushing from dirt and other substrates. … It is expected that anywhere from 200-600 non-juvenile fish were killed by the direct infilling of the Stream, although in terms of total fish life stages killed this could be a very conservative figure depending on the abundance of larvae or juvenile non-migratory bully species, or other species that spawn in the headwaters of streams, such as lamprey and shortjaw kokopu.
… In my professional opinion, based on the sediment loading I have witnessed, I expect that there has been a significant displacement of fish from the Stream above the confluence as a result of the loss of habitat diversity. I also expect that the effects of prolonged exposure of fish to suspended sediment and deposited sediment reach beyond the confluence, although the level of effects is hard to quantify, and will be lower than that above the confluence due to the additional flows from Stream 2. The discharge of sediment has and likely continues to be causing damage to fish gills (and the subsequent increased risk of infection, disease, and predation for those fish), the changing of normal behaviours of resident fish (including migration away from the area and feeding activities), and the loss of food resources available to those fish (loss of macroinvertebrates displaced by sediment). Deposited sediments will also be smothering egg habitat for fish, and making it less available, resulting in the loss of eggs and increasing the competition for egg laying locations respectively.
It is important to outline the long term effects of habitat loss from stream reclamations. In contrast to ‘one off’ contaminant discharge incidents where recruitment into an affected area can instantly begin when the water quality is below chronic and acute levels (in most cases), it can take years to thousands of years for the habitat values of reclaimed stream to become available either through anthropogenic intervention or natural processes. The implications of loss of habitat can extend for a significant period, and therefore, the effects can be cumulative over many generations for fish species. …
Overall, I believe the earthworks and reclamation in the Stream has resulted in the significant loss of and loss of access to high quality habitat for a variety of fish species. The works have likely resulted in the deaths of a significant of fish over several species, some of which may have had a conservation status of at risk declining and possibly
22 Sentencing decision, above n 2, at [34].
nationally vulnerable, and that were also regionally significant species.
[36] There was ample evidence from the three experts called for the Council upon which the Judge could reach conclusions as to the significant detrimental effects caused by Diversion 1.
[37] In addition, the Judge had before her a cultural impact statement concerning the potential significant and long-lasting adverse effects of the diversion23 on the culture and traditions of Pukerangiora and Te Atiawa.
[38] The Judge aptly concluded that the environmental and cultural effects of the offending were serious, putting it as follows:24
[40]I accept the conclusions on environmental effects from the three report writers. The effects include loss of biodiversity, impacts on geomorphic and hydrological processes, increased erosion rates, pollution, habitat loss, displacement and killing of macroinvertebrates and fish, exposure of fish to sediments, and smothering of egg habitat for fish. I agree with the report writers that the effects are significant, cumulative and long-lasting. I am concerned with the effects on the relationship, culture and traditions of Pukerangiora and Te Atiawa. In all the circumstances I determine that the environmental and cultural effects of this offending are serious.
[39] As will be apparent I do not consider that the Judge made any errors in her assessment of the evidence. I am of the view that she evaluated the evidence correctly. The basis for the appeal was that the Judge was in error in her assessment of the environmental evidence. There was no argument otherwise directed at the level of the sentencing on the basis of her findings as to the significance of the environmental and other effects. In those circumstances, I am satisfied that she adopted an appropriate starting point. There was no specific criticism made of the deductions and uplifts applied. They were appropriate in the circumstances.
[40]Accordingly, the appeal is dismissed.
23 At [36].
24 At [40].
Grice J
Solicitors:
Mooney & Webb, New Plymouth Karenza de Silva, Auckland
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