Northlake Investments Limited v Otago Regional Council

[2020] NZHC 1144

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CRI-2019-425-27

[2020] NZHC 1144

BETWEEN

NORTHLAKE INVESTMENTS LIMITED

Appellant

AND

OTAGO REGIONAL COUNCIL

Respondent

Hearing:	28 November 2019
Appearances:	A F Pilditch for Appellant N M Laws for Respondent
Judgment:	28 May 2020

JUDGMENT OF CLARK J

Introduction

[1]    Northlake Investments Ltd (Northlake) is a property development company carrying out a residential  subdivision  at Aubrey Road  near Wanaka.  On 17  and  18 August 2017, heavy rainfall carried sediment from the earthworks at the site along a natural flow path to the Clutha River, just over 1 km away. Northlake was prosecuted for discharging a contaminant into water under ss 15 and 338 of the Resource Management Act 1991 (RMA). On 21 June 2019, Northlake was convicted1 and fined

$42,500.2 Northlake appeals its conviction on the basis the Judge erred both in law and in his assessment of the evidence by finding that Northlake failed to take the necessary reasonable precautions to prevent the discharge. Northlake also appeals the sentence on the grounds of disparity with the sentence imposed on its contractor Civil Construction Ltd (CCL), which pleaded guilty to the same offence.

1      Otago Regional Council v Northlake Investments Ltd [2019] NZDC 11710 [Conviction decision].

2      Otago Regional Council v Northlake Investments Ltd [2019] NZDC 17582 [Sentence decision].

NORTHLAKE INVESTMENTS LIMITED v OTAGO REGIONAL COUNCIL [2020] NZHC 1144 [28 May 2020]

Background

[2]    Northlake is part of the Winton group of companies, which undertakes developments across Australia and New Zealand. The  Northlake  site  comprises 108 ha of former pasture land 2.6 km northeast of the Wanaka town centre. It is located within the Northlake Special Zone of the Queenstown Lakes District Council (QLDC) Operative District Plan. On its eastern boundary, towards the Clutha River, the Northlake site is adjacent to a property owned by Exclusive Developments Ltd (EDL). There is a natural flowpath from the Northlake site that runs through the EDL land and an adjacent Department of Conversation reserve before entering the Clutha River.

[3]    On 9 May 2016, the QLDC granted resource consent to Northlake to undertake bulk earthworks over a 19 ha area of the property in anticipation of subdivision.3 On 26 September 2016, Northlake was given consent to carry out the subdivision over an area of 25 ha.4 On 14 February 2017, the QLDC gave further resource consent for Northlake to undertake bulk earthworks over the remaining 6 ha.5 The relevant resource consents are the two “earthworks consents” (as Judge Dwyer described them) RM160186 and RM161127.

[4]    The resource consent application documents contained the following proposals regarding the staging of the earthworks:

(a)9 May 2016 consent:

3.3.2 Staging Works

The bulk earthworks construction will be staged in order to minimise the area that is ‘open’ at any one time (i.e. stripped of turf and topsoil). Preliminary earthworks area boundaries are shown on the P-SMP as ‘Area, A, B etc. It is envisaged that Area D, which is predominantly cut in approximately 2.8 ha in size will be stripped first along with Area A, which is predominantly fill and also approximately 2.8 ha in size. Once the filling of Area A is complete, the future roads will be left with a sacrificial metal layer shaped as a wide “V” and all future lots will be re-topsoiled and seeded/fettilised.

3      Resource consent RM160186.

4      Resource consent RM160509.

5      Resource consent RM161127.

The filling operation will proceed to the north into either Area B or Area C. As the cut operation in Area D is completed (progressing to Area E once Area D is complete), future roads will be metalled and future lots will be topsoiled and seeded/fertilised. It is envisaged that the contractor will submit a detailed methodology along with their site management plan prior to the commencement of any site works. The recommended conditions reflect this requirement.

(b)14 February 2017 consent:

3.3.2 Staging Works

The bulk earthworks will be staged in order to minimise the area that is ‘open’ at any one time (i.e. stripped of turf and topsoil).

The filling operation will proceed to the north into either Area B or Area C. As the cut operation in Area D is completed (progressing to Area E once Area D is complete), future roads will be metalled and future lots will be topsoiled and seeded/fertilised. It is envisaged that the contractor will submit a methodology along with their site management plan. The recommended conditions reflect this requirement.

[5]    The consent applications recognised the importance of staging bulk earthworks to minimise the area that would be ‘open’ at any one time in order to manage dust and sediment. As will be seen, a significant issue for the appellant arises from its reliance at trial on the terms of both the resource consent and the Site Management Plan (SMP) which Northlake, as consent holder, was required by the conditions of the consents to provide. There was, and remains, a considerable focus on the issue of what was intended by the term ‘open’ in relation to the necessary ground works.

The SMP

[6]    In accordance with the requirements of RM160186 an SMP was prepared by CCL and submitted by Northlake to QLDC for review and certification. The relevant parts of the SMP are summarised:

1.      Outline

…

This is a live document and will be updated as and when necessary.

…

3.Ongoing management and monitoring through [sic] the project

The following areas have been identified as requiring ongoing management and monitoring throughout the project:

…

§   Dust

§   Sediment/erosion control

§   Earthworks

§   Vegetation

…

3.8Dust Control

…

-        Stripped areas will be kept as small as possible whilst ensuring works can progress economically.

-        Top-soil and seeding will be re-spread to the finished lots areas as soon as practicable within 3 weeks after finished earthworks.

…

3.9Erosion Control

-      All construction works will be monitored for erosion weekly and following rain event [sic] of 10mm in 12 hour period.

-      Suitable management of overland water by cut off drains, piping and dispersement will eliminate and/or minimise concentrated flows from causing erosion.

-      Earth worked and exposed areas will be stabilised by reinstatement of vegetation as per the resource consent (RM160186).

3.10Sediment, Runoff, Silt Control

-      Primary, Secondary and Tertiary sediment control will be implemented in the means of catchment areas controlled by surface drains, hard piping to detention pond for sediment retention before final disposal into either on site soakage pits or into existing storm water system. Use of

silt fence will be implemented, locations to be confirmed based on detailed site assessment of natural surface water movement. These will be monitored and cleared when required.

-      The silt catchment strategy revolves around assessment of existing over land water flows (or digging cut-off drains where required) and constructing settlement ponds at selected location. Silt fences are then placed downstream of the ponds for final filtering prior to discharge.

-      Controls to manage potential silt run-off will be in place prior to earthworks commencing in areas that have the potential to discharge silt.

-      Silt controls will be assessed on a monthly basis and after heavy rainfall (10mm within 12hours) to monitor their effectiveness, ensure they are cleaned out regularly, and improve the silt control system as required.

…

3.12     Vegetation

Revegetation will be implemented as soon as practicable and as the seasons allow after the completion of the works. Vegetation of the disturbed areas will decrease sediment yield from the disturbed areas and is considered the most appropriate method of preventing on-going sedimentation post-construction works.

Timeline – silt discharge

[7]    Mr Alexander Todd, a land surveyor employed by Paterson Pitts Group, the project engineer, gave evidence at trial to the effect that, by May 2017, the earthworks had been largely completed and the land topsoiled except for some unsealed roads comprising (approximately) between 2.5 and 3 ha. There were also some sealed roads, but the remainder of the land was unvegetated. Grass seed had been sown in some parts of the subdivision, but it had not struck successfully.

[8]    The Northlake site experienced heavy rain on 17 July 2017 resulting in a discharge of sediment onto the EDL land. EDL made a complaint to the QLDC. Northlake had earlier informed the QLDC about the discharge:

Obviously, this time of year without the proposed grass cover completely established, there is a bit more silt flowing than is ideal, and there are a few days of tidy up works in this respect which the guys are onto. In particular, CCL will also install a double line of silt fencing downstream of Outlet Road

and widen the existing silt fence. We are expecting some more rain later in the week and it is proposed that these minor works will be complete by then.

[9]    Northlake outlined the difficulties encountered and adjustments made to its sediment controls in a further email to the QLDC on 27 July 2017:

Very minor scouring to a section of the batter in eastern most permanent stormwater basin. This was due the fact that we had kept the silt clothes in the mud tanks as discussed with Council to limit the ingress of silt into the mud tanks once building construction activity commences in the next few weeks. The silt cloth meant that flows could not get into the mud tank fast enough and therefore water built up in the roadway and crossed the reserve into the stormwater basin and scoured a batter along the way. I note that this overland flow path is as per design (in case that particular set of mud tanks do block in the future) and that the scouring happened because the reserve topsoil has not yet been grassed.

The main swale received a layer of silt, particularly at the eastern end, that needed to be cleaned out. I note that this isn’t an improvement but rather standard maintenance that will be on-going.

Some minor silt was deposited at the outfall of the main SW pipes under Outlet Road. This indicated that whilst the stormwater was flowing in the correct paths we could improve the removal of silt along the way. To achieve this we have restricted the size of the orifice from the stormwater basins by bolting a length of plywood across the face of the outlet pipe leaving the top 100mm open to the flow. By restricting the orifice size the water will back up in the detention basins and facilitate the settling out of silts. We have also placed additional silt fences at strategic locations including the SW outlet point at Outlet Road.

[10]   In August 2017, the Northlake site experienced  further heavy rainfall.  On  12 and 13 August, there was rainfall of 23.6 mm. No sediment was discharged during this time. But, just days later, on 17 and 18 August, there was further rainfall of

24.6 mm. It was on this occasion the sediment controls failed and the discharge for which Northlake was charged occurred.

The charge and statutory provisions

[11]   The charge was that between 17 and 18 August 2017 at 762 Aubrey Road, Wanaka —

Northlake Investments Limited together with Civil Construction Limited discharged contaminants (silts and sediments) onto land in circumstances which might have resulted in those contaminants ( or any other contaminants emanating as a result of natural processes from those contaminants) entering water, namely water in the Clutha River, when the discharge was not expressly

allowed by a National Environmental Standard or other regulations, a rule in a Regional Plan as well as a rule in a Proposed Regional Plan for the same region (if there is one), or a resource consent.

Legislative reference: Sections 15(1)(b), 338(1)(a) and 339 of the Resource Management Act 1991 and Section 66 of the Crimes Act 1961.

[12]The relevant provisions of the RMA provide as follows:

15       Discharge of contaminants into environment

(1)No person may discharge any—

(a)contaminant or water into water; or

(b)contaminant onto or into land in circumstances which may result in that contaminant (or any other contaminant emanating as a result of natural processes from that contaminant) entering water; or

…

338     Offences against this Act

(1)Every person commits an offence against this Act who contravenes, or permits a contravention of, any of the following:

(a)Sections 9, 11, 12, 13, 14, and 15 (which impose duties and restrictions in relation to land, subdivision, the coastal marine area, the beds of certain rivers and lakes, water, and discharges of contaminants):

…

District Court trial

[13]   Northlake admitted that sediment had discharged from the Northlake site into the Clutha River. Its defence was grounded in the reasonable steps it took to ensure sediment discharges to water did not occur. Northlake argued it took the reasonable precautions of a prudent developer to prevent the discharge and the prosecution could not prove beyond reasonable doubt that Northlake, acting through its advisers, failed to investigate the possibility of sediment discharge into the Clutha River and take appropriate preventive measures.

[14]   Additionally, Northlake was critical of the statutory basis relied upon by the prosecution. A material part of Northlake’s defence relied on the appropriate fault

element to be proved, Northlake arguing that if it contributed at all to the discharge it was a “passive” contributor not an “active” contributor to the cause of the silt discharge.

Judgment under appeal

[15]   After traversing the evidence at trial the Judge set out the events leading up to the discharge in August 2017, considering, in that context, the sediment control measures put in place by Northlake. The Judge discussed the elements of s 15 of the RMA and recorded that Northlake was a person within the meaning of the section, the sediment was a contaminant as defined in s 2 of the Resource Management Act, a discharge had occurred, and nothing expressly allowed the discharge to occur. None of those elements is contested by Northlake.

[16]   The Judge addressed Northlake’s contention of a peculiarity in the charging documents. Northlake and CCL had been charged as parties under s 66 of the Crimes Act 1961. Northlake took the position it should have been charged as a principal within the meaning of s 340 of the RMA.6 The Judge decided it was appropriate for Northlake to be charged in its own right under s 338 and amended the charge to remove the reference to s 66. This was on the basis Northlake was the developer and had ultimate responsibility for environmental compliance. Northlake’s failure to ensure “a fit for purpose SMP was in place throughout the duration of the project … was an operative … factor in the chain of causation leading to the discharge …”.7

[17]   Based on Mr Todd’s evidence, the Judge concluded between 15 and 20 ha of land was open, in the sense of being unvegetated. The Judge recorded his understanding that “in some instances top-soiled land might be regarded as no longer open but it is clear from Northlake's application documents and SMP that the earthworked areas were to be both top-soiled and revegetated so that use of the term open is accurate”.8

6      Conviction decision, above n 1, at [77]–[79].

7      At [72]–[73].

8 At [18].

[18]   Addressing Northlake’s case that the totality of the rainfall events was unforeseeable, the Judge found no evidence to suggest the rainfall events on 17 and 18 August were outside the range within which they could reasonably have been foreseen and might need to be provided for. The expert witnesses agreed this level of rainfall was less than a 1.58 Average Recurrence Interval event.9

[19]   The Judge was ultimately satisfied Northlake had not taken all reasonable precautions or appropriate preventive measures to prevent the discharge of sediment from the site. In reaching this conclusion, the Judge relied principally upon two factors:10

(a)The need to minimise open areas by topsoiling and revegetating at the conclusion of each stage of the bulk earthworks. The Northlake site was almost entirely unvegetated in August 2017.

(b)The need to change the SMP from time to time to reflect the circumstances. Northlake continued to rely on the above measures during a wet winter and after sediment discharge had occurred in July 2017.

Grounds of appeal

[20]   Mr Pilditch submitted on behalf of Northlake that the charges ought to have been brought on the basis of s 340 of the RMA because Northlake’s liability was essentially “vicarious” in nature. Northlake did not contribute to the “physical” events charged under s 15, which were entirely the province of CCL. Accordingly, Northlake was entitled to a finding that both limbs of the statutory defence in s 340 were established.

[21]   Mr Pilditch further submitted there was an inherent tension in the Judge’s assessment of the evidence. On the one hand, the Judge said, “there is no doubt that Northlake took a responsible and structured approach to the project and sought to

9 At [30].

10 At [67].

avoid environmental problems”.11 On the other hand, the Judge found that Northlake had not taken the precautions of a prudent developer to prevent the discharge of sediment from the Northlake site and it had not investigated and taken proper preventive measures.

[22]   Mr Pilditch emphasised the need to assess the actions taken by Northlake in the context of the information available to it at the time. He submitted the Judge imposed standards that did not apply at the time, which he said amounted to “an exercise in hindsight”. The Judge was said to have misconstrued Northlake’s obligations under the SMP, failed to recognise the relative roles of the parties involved in the development and failed to consider advice that the earthworks controls were adequate, including that the SMP had been approved by the QLDC.

[23]   In particular, Mr Pilditch took issue with the Judge’s conclusion Northlake was obliged to complete the development in stages, that further minimised the area that was “open” at any one time and, in relation to closing the land, revegetate in order to mitigate sediment. Mr Pilditch said these were controls designed to mitigate dust, not sediment. Northlake’s application for resource consent said the earthworks would be staged to minimise the area that was “open” at any one time but defined “open” as “stripped of turf and topsoil”. Mr Pilditch said the Judge conflated the topsoiling and re-seeding of each stage with the need to vegetate the entire site after the completion of the works.

[24]   Mr Pilditch also emphasised that Northlake relied on its contractor to design and carry out the sediment controls. He stressed CCL was a reputable and experienced contractor, not the cheapest in the area. This case was dissimilar to McKnight v NZ Biogas Industries Ltd, where the appellant had caused environmental damage by skimping on its responsibilities.12 Mr Pilditch referred to weekly meetings Northlake held with the contractor to discuss the status of environmental controls.

11     Conviction decision, above n 1, at [67].

12     McKnight v NZ Biogas Industries Ltd [1994] 2 NZLR 664 (CA).

Approach on appeal

[25]   To succeed on appeal, Northlake must establish that the Judge erred in his assessment of the evidence to such an extent that a miscarriage of justice has occurred, or that a miscarriage of justice has occurred for any other reason.13 A miscarriage of justice is an error, irregularity, or occurrence that created a real risk that the outcome of the trial was affected, or that resulted in an unfair trial or a trial that was a nullity.14 A “real risk” is where “there is a reasonable possibility that a not guilty (or more favourable) verdict might have been delivered if nothing had gone wrong”.15

[26]   In Sena v Police, the Supreme Court explained that a challenge to a trial judge’s assessment of the evidence is an appeal by way of rehearing conducted on the basis of the principles established in Austin, Nichols & Co Inc v Stichting Lodestar.16 That means the appellate court must reach its own view on the evidence, although the burden remains on the appellant to demonstrate that the trial judge erred in his or her assessment. Appropriate weight must be given to advantages the trial judge would have had in assessing matters such as credibility.17

Discussion

Formulation of the charge

[27]   In the end, the formulation of the charge has little bearing on the outcome of this appeal because at trial Northlake ran the defence that it took all reasonable care.

[28]Sections 340 and 341 provide:

340Liability of principal for acts of agents

(1)Where an offence is committed against this Act—

(a)by any person acting as the agent (including any contractor) or employee of another person, that other person shall, without prejudice to the liability of the first-mentioned person, be liable under this Act in the

13     Criminal Procedure Act 2011, s 232(2).

14     Section 232(4).

15     R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [110].

16     Sena v Police [2019] NZSC 55 at [32]; and Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.

17     Green v Green [2016] NZCA 486, [2017] 2 NZLR 321 at [29]–[31].

same manner and to the same extent as if he, she, or it had personally committed the offence; or

…

341Strict liability and defences

(1)In any prosecution for an offence of contravening or permitting a contravention of any of sections 9, 11, 12, 13, 14, and 15, it is not necessary to prove that the defendant intended to commit the offence.

…

[29]   The terms of the defence for a defendant  actually discharging material in     s 340(1) are little different from those identified by the Court of Appeal in McKnight v NZ Biogas Industries Ltd as to when a person may be liable as a contributor to the causal events leading to a discharge:18

We find no straining of language in saying that a person allows a contaminant to escape who fails to take the precautions that a reasonably prudent person in the position would take to prevent that escape. The element of awareness in the concept of allowing is broader than that adverted to in the Courts below. It is sufficient if there is awareness of facts from which a reasonable person would recognise that escape could occur. In that case, failure to investigate and take appropriate preventive steps would amount to allowing an escape should it subsequently occur.

[30]   A person, other than a person who actually (i.e physically) causes a discharge, may also cause a discharge through acts or omissions that indirectly contribute to that discharge. This is captured by the language of s 340. No miscarriage arises from the fact that Northlake was treated as though it “personally committed” the offence of discharging sediment into the Clutha River.19 Ultimately, the appeal turns on the Judge’s evaluation of the evidence as to the steps Northlake took to prevent a discharge and the sufficiency of those steps, not the formulation of the charge.

The need for revegetation and staging

[31]   As I have noted, the appellant is critical of a pivotal finding that the land in issue was ‘open’ unless under replaced vegetation. Any assessment of reasonableness therefore, on the appellant’s case, had to engage with Northlake’s SMP and the related

18     McKnight v NZ Biogas Industries Ltd [1994] 2 NZLR 664 (CA) at 672.

19     Resource Management Act 1991, s 340(1)(a).

resource consent documentation. The Judge placed considerable focus on certain aspects namely the staging of earthworks, the minimisation of open areas and the revegetation of the site. These features are not identified under the heading “Sediment, Runoff, Silt Control” in the SMP to which the Judge did not refer in the judgment under appeal.

[32]   Under this heading, Northlake described the use of catchment areas with surface drains and hard piping, settlement ponds and silt fences. These controls were to be reassessed on a monthly basis and after heavy rainfall to monitor their effectiveness. There was evidence such monitoring was in fact carried out. Northlake produced minutes from its meeting and correspondence with the QLDC following the heavy rain in July 2017. This lead to the implementation of further sediment controls, including the construction of another silt fence on the EDL land.

[33]   Furthermore, the weight placed by the Judge on revegetation appears to have been misplaced. The apparent assumptions that the SMP required Northlake to revegetate the site in stages or that the SMP ought to have required this are questionable. The SMP only required revegetation to be completed “as soon as practicable and as the seasons allow after the completion of the works”. It is doubtful revegetation could have been completed during the winter months leading up to August 2017.

[34]   On a strict construction of both the consent and SMP in relation to the obligations as to, and the meaning of, ‘open’ land it is arguable that the appellant could say that land covered in topsoil without grassing or other vegetation was not ‘open’. But even if the point is resolved in line with the appellant’s case that does not in itself give rise to an error of fact leading to a miscarriage of justice. At best of the several points made by the Judge in the passage immediately below one may have been put in doubt:

[27]     Accordingly, the situation in respect of the silt/sediment controls on the Property as at the end of July 2017 was that:

•     The subdivision works area of somewhere in the range 15-20 ha was open (in the sense of being unvegetated) and had been open for a period of two to three months or so, notwithstanding the clear recognition in resource

consent documents that the area of open land had to be minimised and vegetation established as part of staged subdivision works;

•     The weather had been particularly wet during July;

•     Ground conditions in the works area were accordingly wet;

•     There had been a discharge of silt and sediment laden stormwater from the Property into the flowpath on the adjoining EDL land;

•     Some amendments to the SMP had been put in place.

[35]   The Judge’s pivotal finding20 has not been materially disturbed by the appellant’s exacting submissions as to the evidence.

[36]   In relation to whether it was reasonable to require vegetation, Mr Marc Bretherton, the development manager for Northlake, gave the following evidence:

The site gets locked down to a degree through winter in that the, you know, the necessary controls are put in place. Those areas that can be topsoiled are because topsoil is a, whether or not there's grass. I mean it's desirable to have a strike of grass, the sort of grass on topsoiled areas but topsoil doesn’t erode to the same degree that glacial till does, so where there's topsoil placed on a site, I'm not saying that it doesn’t produce sediment because it does produce a degree of sediment and needs to be managed, but it doesn’t mobilise to the same degree, anywhere near the same degree as glacial till does. So in some ways, well, not in some ways. The fact is, and [Mr Todd] will be able to confirm this if asked I suspect, topsoiling of a site is generally regarded by a contractor by the engineers by the Council as a suitable way in which to leave the site through a wet period but a strike of grass is certainly desirable.

[37]   In his response to questions from the Court, Mr Todd confirmed it is common practice to leave a site covered by topsoil without grass cover over the winter period:

Q So what we've got in August 2017 is a situation where that site, somewhere in the order of 15 hectares give or take, is open and has been open for a period possibly since May? So it's been open for three months.

AI just want to be clear on what you mean by open. So no grass cover, then you–

Q        No grass cover. Covered by topsoil and/or some glacial soils. A     Correct.

Q        The bulk of it topsoil?

20 At [75].

A        Correct.

Q        And we're going into winter?

AThat’s common practice because generally what you'd  try and do is  get your bulk earthworks done over your summer months. You leave your road corridors open because during the winter months, you're getting your pipes done. So you're excavating that roading corridor and laying pipe so as that come September, your pipes are laid in the middle of the road, because that’s where they generally live, and you're placing pavement layers in order to then beat sealing season.

[38]   The Judge referred to this passage as confirmation unvegetated land could be considered “open”.21 I accept some ambiguity may have arisen here. Mr Todd may have been confirming what the Judge meant by the word “open” for the purpose of answering his question accurately in terms of the condition of the land in August 2017. Mr Todd was not necessarily accepting that land covered by topsoil was open.

[39]   In re-examination, Mr Pilditch asked Mr Todd to explain why he qualified his earlier answers regarding when land would be considered “open”. Mr Todd explained:

For me it goes back to Council’s, QLDC’s lack of documentation on this issue. They have, to the best of my knowledge, up until, well, even until today, they accept that a topsoiled site is considered stable. If we refer to GDO5, which is Auckland Regional Council’s replacement to TP90, as I have done in recent days, we find that they consider a grass sward of less than 80% coverage to not yet be stable. So that’s why I lingered on that issue. I believed that at the time that if we were topsoiled, because it's a far less erodible material than the tills, we were considered stable.

[40]   This remark is the source of Mr Pilditch’s submission the Judge applied a standard to Northlake in hindsight. In essence, Northlake says it could not have known the Council would consider topsoil alone to be insufficient to stabilise the land and prevent the discharge of sediment from the site. It is arguable that a prudent developer could rely on this fact, so long as it accorded with the expert opinion of the developer’s advisors. However, as I have noted above, the question of what should reasonably have been done to prevent the silt deposits in issue must be determined on the totality of the evidence.

21     Conviction decision, above n 1, at [19].

The July 2017 discharge

[41]   Irrespective of any failure to revegetate, the Judge said Northlake was put on notice of the inadequacy of its SMP by the events in May and July 2017. This matter was not the focus of Mr Pilditch’s submissions but, in my view, it was equally important to the Judge’s conclusion that Northlake did not take the reasonable precautions of a prudent developer. In particular, the discharge in July 2017 demonstrated there were issues with the sediment controls.

[42]   In cross-examination, Mr Garry Dent, Northlake’s expert witness on water resources engineering, made the following concession:

Q It’s relatively uncommon isn’t it under TP90 and industry practise for storm water, ah for sediment retention systems to install sediment fences within the flow of a sediment channel essentially isn’t it? It’s not recommended practice is it?

AIt’s putting it at the end, I mean that, I think that, it is something you might do, but you wouldn’t normally have that within the site, well you’d usually try and – this is trying to remove the bulk of the sediment within the site but in a sedimentation pond or something from other means, so this was obviously intended as a, as a backup measure.

Q        It’s not ideal is it?

A        No.

Q A silt fence is never going to do, is never going to be as effective as a sediment pond is it?

A        Ah generally not no.

QSo as an expert in your field, if you see sediment fences at the end of a system on someone else’s land, it would be an indication that something’s going wrong wouldn’t it?

A No, it would be, yeah it would indicate that there was a problem  upstream, yeah.

Q And if something needed to happen on the site to better  treat the  sediment that would be your conclusion wouldn’t it?

A        Yes, that would be correct, yep.

[43]   Mr Dent also accepted it would be prudent to design a sediment control system to accommodate a rainfall event of the kind that occurred on 17 and 18 August 2017:

QMr Dent, this rainfall event on the 17th and 18th of August 2017 was not particularly in itself severe, was it?

A No. No, I agree with Mohssen on that, in that regard, yep, (inaudible 12:21:37).

QAnd at paragraph 11 do you agree with his claims there that in the past 34 months the event was exceeded at least 13 times?

A      I would, yeah, (inaudible 12:21:50) that. Yes, that’s correct. Q And it’s not uncommon is it, for rainfall events to –

A– excuse me, sorry,  the difference would be the event on a single    period of one or two or three days, yes, but the (inaudible 12:22:11) conditions are not typical of the previous 18 months.

QAnd we need to talk about that, but thank you, that’s what I was about to do. The context to that is that it’s not uncommon for rainfall events to occur at the same site within a matter of days, is it?

A        No, it can happen.

QSometimes  it happens in the same place within four or five days of   each other, doesn’t it?

A        It can happen, yes, obviously does, yeah.

Q        Well not only “can happen” but it’s not uncommon, is it?

AWell depends what “uncommon” mean, but the events that we’ve been talking about, and what Mr Mohssen referred to, they’re clearly, you know, that might happen three or four times in a two-year period, yep.

Q      And so if you’re designing – A – it might happen –

Q– a sediment retention system, you would make an assumption that   there might be during the period of the project consecutive rainfall events, wouldn’t you?

AUm, the expectation of a – yeah, you would design, you’d design for a hydrograph which for a two-year event. For instance I looked at a two-year event and the one-hour rainfall for that was of the order of about 11 millimetres – a 30-minute rainfall was 11 millimetres per hour, so you would design it and the total volume of rainfall would be greater, that would be part of the design process, that’s correct. In other words, the rainfall totals for each event.

QYes. Would you accept that it would be poor practice to design and/or operate a sediment retention system on a presumption that it might not rain within five days of each event?

A        Um, yes, yeah, mhm.

Q And indeed the more it rains and the wetter it gets, the more attention needs to be given to a sediment retention system, isn’t it?

A Within the – within – it could based on the design perimeter which is normally accepted of a two-year event, that’s what you’re designing for. You would not expect to have two two-year events successively in the space of three or four days obviously.

Q        But it could happen, couldn’t it?

A        No, the probability of that happening is very low. Q        Well it happened here, didn’t it?

ANo. Yeah, there were two successive events but they weren’t two-year average rain retainable events, in two days.

Q        Yes, they were less than two years ARI, weren’t they? A   They were, they were less than that, yes. Yep.

QAnd that two-year ARI perimeter features within the Bulk Earthworks 20 Guideline Auckland Regional Council TP90, doesn’t it?

A Yes, I believe so, yep. So there’s a number of designs now, that’s the typical one and there has been changes and we’ve been dealing with GD05 recently and that has slightly different, but yes at the time it was probably TP90, yep.

[44]   It appears from this evidence that expert opinion supported the need to prepare for two successive rainfall events of the scale that occurred in August 2017. Accordingly, a prudent developer would devise a SMP requiring sediment controls to provide this level of protection. Mr Dent’s evidence about the “backup” nature of the silt fences constructed in July 2017 suggests Northlake’s sediment controls were inadequate to prevent one heavy rainfall event, let alone two successive events.

[45]   Although the QLDC did not provide guidance on the level of rainfall for which a developer must prepare, this does not mean the Judge imposed a retrospective standard by entering a conviction. Section 15 of the RMA is an independent obligation on a developer over and above any rules or guidance provided by a local council. Ultimately, the developer’s obligation as consent holder is not to discharge any contaminant into water. To avoid causing a discharge, a developer must take all reasonable precautions as a prudent developer. The fact alone that a developer relied on its contractors to make relevant decisions does not alter that obligation. In this case, as Mr Laws pointed out, the appellant, through its manager, was engaged with

the contractors on the central question of silt control and the site problems in that regard.

[46]   It was therefore open to the Judge to conclude the SMP was not adequately updated and that Northlake failed to take all reasonable steps to prevent the discharge.

[47]   Mr Pilditch submitted it was “illogical” to suppose the discharge within a few metres of the Northlake site boundary in July 2017 should have alerted Northlake to an impending discharge to the Clutha River over 1 km away. As I have said, it is not so much about whether Northlake should have been alerted, but what this occurrence could be taken to suggest about the state of the sediment controls in place at the time. As Mr Dent accepted, the further controls implemented afterwards amounted to “backup measures” and would do little to compensate for an inadequacy in the primary control system. I do not consider the connection between the July 2017 discharge and the August 2017 discharge to be illogical. Although the scale of the discharge in August was more serious, so were the not unforeseeable weather conditions. The July 2017 discharge was reasonably to be seen as evidence of the underlying weakness of the sediment control system and the susceptibility of the systems that were in place to an event of the kind that occurred on 17 and 18 August.

[48]   It is the failure of Northlake to insist on a stronger sediment control system, in accordance with the expectations of expert opinion at the time (albeit Northlake says it was not informed of this by its own expert), that prevents Northlake from demonstrating that a miscarriage of justice has occurred.

Sentence appeal

[49]   Northlake objects to the starting point adopted by the Judge of $50,000. A starting point of $40,000 was adopted for CCL. The Judge said Northlake had a greater level of culpability because it was the developer and ultimately the one responsible for environmental protection. Mr Pilditch submitted this was in error and Northlake’s culpability should have been less than (or at least equal to) CCL because the contractual arrangements explicitly recognised CCL’s role in designing and implementing the SMP.

[50]   This submission was very much premised on the assumption Northlake was only vicariously responsible for the discharge. As I have already explained, it was appropriate for the Judge to proceed on the basis Northlake was responsible as a primary offender. It failed to ensure an adequate level of protection was in place and that was ultimately its responsibility. A small disparity between the two sentences was therefore acceptable.

[51]In the end, the fine of $42,500 was not manifestly excessive.22

Result

[52]The appeals against conviction and sentence are dismissed.

Karen Clark J

Solicitors:

Justine Hollows, Winton Group, Auckland for Appellant Ross Dowling Marquet Griffin, Dunedin for Respondent

22     Criminal Procedure Act 2011, s 250(2); and Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [29] and [35].