Boyd v Taranaki Regional Council - [2022] NZHC 3451

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.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] NZHC 3451
Decision Date: 15 December 2022

CaseChat Overview and Summary

The appellant, Colin David Boyd, appeals against his sentence for charges under the Resource Management Act 1991, which include the discharge of contaminants into an unnamed tributary of the Mangatengehu stream, reclaiming the tributary, and breaching an abatement notice. Boyd was fined a total of $95,750.00. The appellant challenges the District Court's decision, which arose from a disputed facts hearing, and the sentence imposed based on those facts. Boyd argues that the District Court Judge misconstrued the evidence relating to the environmental effects of the offending, and that she failed to recognise that the dominant cause of any effects noted was in fact earlier drainage work undertaken by the appellant, which was not the subject of the prosecution.

The Court of Appeal must consider the evidence and reach its own opinion on the facts and the dispute. The appellant's argument is that the Judge had failed to recognise the significance of the evidence of the Council expert Mr Harrison, in relation to the source of the water flowing into the unnamed tributary. The appellant's argument was that the environmental effects on groundwater would be significantly different from streams flowing above ground. However, the Court found that the Judge was cognisant of the presence of significant groundwater in the flow and that 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.

The Court of Appeal found that the Judge evaluated the evidence correctly and that the basis for the appeal was that the Judge was in error in her assessment of the environmental evidence. The Court was satisfied that the Judge adopted an appropriate starting point for sentencing and that the deductions and uplifts applied were appropriate in the circumstances. Accordingly, the appeal was dismissed.

If an appeal is dismissed, the original sentence stands, and the appellant is still required to pay the fine of $95,750.00. The Court did not make any changes to the sentence imposed by the District Court.

Orders