Walling v Waikato Regional Council - [2023] NZHC 3437

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2023-419-000064

[2023] NZHC 3437

BETWEEN
JOHN LEONARD WALLING

Appellant

AND

WAIKATO REGIONAL COUNCIL

Respondent

Hearing: 21 November 2023

Counsel:

MJ Hammond and EC Stewart for Appellant JM O’Sullivan for Respondent

Judgment:

30 November 2023

JUDGMENT OF DOWNS J

This judgment was delivered by me on Thursday, 30 November 2023 at 11 am.

Registrar/Deputy Registrar

Solicitors/Counsel: Tompkins Wake, Hamilton. Gordon Pilditch, Rotorua. J O’Sullivan, Wellington.

WALLING v WAIKATO REGIONAL COUNCIL [2023] NZHC 3437 [30 November 2023]

The appeal

[1] This appeal concerns a significant fine for offending contrary to the Resource Management Act 1991. The defendant, John Walling, argues the fine is too severe.

[2] The appeal must be allowed if the sentencing Court erred, and a different sentence should be imposed.1

Background

[3] Mr Walling, Cazjal Farms Ltd,2 and three other defendants pleaded guilty to charges concerning the discharge of effluent to water, and breaches of an abatement notice in relation to effluent. The offending occurred at a dairy farm near Wharepūhunga. The farm was, and is, owned by Cazjal. Mr Walling was, and is,
Cazjal’s director.3

[4] The offending involved three distinct episodes; one on 30 June 2021; one on 21 September 2021; and one on 3 November 2021. The sentencing Judge, Chief Environment Court Judge Kirkpatrick, summarised matters this way:4
On 30 June 2021, a resident in the area called the Council complaining that the Matapara Stream was a dark green colour and smelled of effluent. Council officers attended the farm shortly afterwards. They found an irrigator on the farm had been spraying on a limited arc on the right hand side of the tanker track on a slope above a tributary to the stream. There was a clear flow path of effluent from the irrigator across the paddock to a boggy area in the bottom of the gully and then into the tributary, which was still running green, was frothy in places and had an odour of effluent. Samples were taken in a number of locations and subsequent analysis confirmed the presence of high levels of contaminants.

On 21 September 2021 the same complainant called and there was a further inspection by Council officers. Analysis of samples confirmed elevated levels of contaminants consistent with dairy effluent. Council officers inspected the effluent pond which they found was full with very little freeboard left. A travelling irrigator was in Paddock 14 and had been set up to run in a heavily pugged and rutted area causing it to travel more slowly with the consequence that effluent was applied at higher rates and the further consequent risk of

1      Criminal Procedure Act 2011, s 250.
2      Cazjal.
3      Mr Walling’s wife was also a director until 31 March 2022.
4      Waikato Regional Council v Cazjal Farm Ltd [2023] NZDC 10973 at [9]–[13].

ponding due to the pugged soil. The farm’s hydrant system was broken and prevented irrigation in a more suitable area. Effluent…

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: [2023] NZHC 3437
Decision Date: 30 November 2023

CaseChat Overview and Summary

The appeal in Walling v Waikato Regional Council concerns the severity of a fine imposed on John Walling, a director of Cazjal Farms Ltd, for environmental offences under the Resource Management Act 1991. Walling argues the $96,000 fine is excessive and should not exceed $56,000. He raises several contentions, including that the Act contemplates a distinction in fine levels between companies and individuals, that both parties sought such a distinction, and that a lesser fine is warranted on the facts. The court considered the statutory maximum penalties and noted that the maximum penalty for an individual is not a $300,000 fine, but a two-year term of imprisonment. It held that comparing maximum fine penalties is not comparing like with like. The court found that the sentencing judge was correct to impose a more severe sentence than the one sought by the prosecution. The court also rejected Walling’s argument that the judge erred in treating his enforcement history as aggravating in the absence of a conviction. The court held that the judge considered Walling’s knowledge of the circumstances in relation to the earlier offending aggravated culpability. Finally, the court held that the overall penalty is not too severe given the fine imposed on Cazjal. The appeal was dismissed.

Orders