Burrows v Otago Regional Council - [2015] NZHC 861

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2015-412-000004 [2015] NZHC 861

BETWEEN
JOHN DOUGLAS BURROWS

Appellant

AND

OTAGO REGIONAL COUNCIL Respondent

Hearing: 1 April 2015

Appearances:

K E Tohill for Appellant
A J Logan for Respondent

Judgment:

29 April 2015

JUDGMENT OF GENDALL J

Introduction

[1] The appellant (Mr Burrows) was charged and pleaded guilty in the District Court at Dunedin to two charges under the Resource Management Act 1991 (the RMA) of:

(a) discharging effluent to land in circumstances where it may enter water;1 and

(b) discharging effluent to saturated soils in breach of a Regional Rule.2

[2] On 23 January 2015 Judge Dwyer in the District Court refused to grant Mr Burrows a discharge without conviction and imposed fines on the two charges totalling $7120 and ordered Mr Burrows to pay solicitors costs of $226 and court
costs of $130 on each charge.

1 Resource Management Act 1991, s 15(1)(b).
2 Resource Management Act 1991, s 15(2A).

[3] In doing so, Judge Dwyer set out the relevant background details to the offending in his judgment:3

[3] Alpine is or was at the time of the offending the sharemilker on a dairy farm at Georgetown in the Waitaki Valley. The farm is owned by a company called Kowhai Dairy Limited and Alpine is also a shareholder in that company. Eight hundred and fifty cows are milked on the farm.

[4] Mr Burrows is a director of Alpine and oversees the farm on a day to day basis. An employee was responsible for running the effluent system from the dairy shed where the offending occurred at the time of the offence but subject to Mr Burrows’ overall control. I formally record that Mr Burrows was not personally operating the effluent system at the time of the offending.

[5] On 19 February 2014 a Council enforcement officer inspected the farm and found that both a travelling effluent irrigator and K-line irrigation system were operating in reasonably close proximity to each other. No one was present at the time to monitor operation of the irrigators. Soils in the vicinity were saturated and effluent was running off the land surface into a drain which was carrying a mix of irrigation water from the K-line and effluent from the travelling irrigator. This mix was found in the drain for a distance of up to 640 metres before it could no longer be tracked due to the terrain of the farm.

[6] The environment affected by the offending is in the Waitaki Valley. The ultimate destination of the drain into which the effluent was discharged is the gravels of the Waitaki Plains and their underlying aquifer situated about three and a half kilometres away. Analysis of water in the drain showed that it was highly polluted by dairy effluent. The drain itself has no ecological values but the water sampled in it was unsafe for human contact and stock consumption. It is not possible to identify the extent to which the effluent might…

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: [2015] NZHC 861
Decision Date: 29 April 2015

CaseChat Overview and Summary

John Douglas Burrows appeals against his conviction in the District Court for two charges under the Resource Management Act 1991. The appeal was heard in the High Court of New Zealand and the judgment was delivered on 29 April 2015. The appellant was found guilty of discharging effluent to land in circumstances where it may enter water and discharging effluent to saturated soils in breach of a Regional Rule. The appellant was fined $7120 and ordered to pay costs. The appellant argues that the District Court was wrong in not exercising its discretion to discharge him without conviction under s 106 of the Sentencing Act 2002. The court considered the gravity of the offending, the direct and indirect consequences of conviction and whether the consequences would be out of all proportion to the gravity of the offending. The court found that the direct and indirect consequences of the conviction were not out of all proportion to the gravity of the offending. The appeal was dismissed.

The final orders of the court were that the appeal is dismissed.

Orders