The effluent storage pond at the end of the feedpad was so full inspectors could not determine where the pad ended and the pool began. Effluent ran onto the race and into at least three adjacent paddocks. The council investigation found that the farm had an abnormally high stocking rate of 5.37 cows/ha before the inspection when the regional average was 2.88 cows/ha.
Mr Van Bysterveldt pleaded guilty to a charge under the Resource Management Act 1991 and was fined $33,075. Judge Melanie Harland said in the Hamilton District Court there had been inadequate contingency measures built into the effluent storage system and it should have been upgraded in tandem with the increase in stock numbers. There had been enough cases now to warn dairy farmers that sufficient storage capacity to cope with unseasonable weather was a necessity.
Appeal rejected
In another case, the High Court in November last year rejected an appeal by a dairy farmer against a fine of $48,000 imposed for discharging dairy effluent onto land.
Gilbert Watt owned adjoining dairy farms near Riversdale, Southland. He lived on one and his contract milker, Tony Cabral, managed the other property, where there were 450 cows. Mr Cabral employed Tony Marsh to assist him.
It was a condition of the resource consent under which Mr Watt had operated a travelling irrigator since 2008 that he install and maintain an alarm and automatic switch-off system as a contingency measure in the event of any stoppage or breakdown.
But Mr Watt said that the condition was new in 2008 and he was not aware of it. On the morning of March 30, 2011, Mr Cabral switched the irrigator on at 5am but did not check it as it operated. He went home for breakfast between 7.30 and 8am and later received a text from Mr Marsh to say that the irrigator pipe had blown apart. A pipe had disconnected at a coupling and was discharging effluent into the paddock near the dairy. The sludge was then flowing into nearby Sandstone Creek.
Mr Watt and Mr Cabral did all they reasonably could to minimise the damage but a substantial quantity of effluent entered the creek, with samples taken 3km downstream showing high levels of contaminants.
Judge Harland sentenced Mr Cabral in the District Court on June 29, 2012, accepting the faulty equipment was a partial cause of the discharge but also finding Mr Cabral’s management was less than satisfactory. The judge said that Mr Cabral’s behaviour was careless and unwise rather than deliberate and fined him $5000 after taking into account his personal circumstances and mitigating factors.
Mr Watt was fined $48,000 and appealed to the High Court against that sentence, arguing that the disparity in sentences between him and Mr Cabral was unjustified and the judge had adopted too high a starting point in considering the appropriate fine. His lawyer argued that Mr Cabral was the more culpable offender as he knew the couplings sometimes failed and had not followed the procedures established by Mr Watt. The lawyer drew attention to the fact Mr Watt had a reading difficulty and the council had not drawn the new condition about a failsafe device to his attention.
However, Justice Miller dismissed the appeal, and said he agreed with the District Court Judge that Mr Watt’s culpability was greater. Mr Watt had chosen to use a travelling irrigator, which carried with it a significant risk of accidental discharges from couplings. He had also chosen to avoid the cost of installing a failsafe device and had failed to comply with the condition of the resource consent requiring a failsafe device.
The judge said Mr Watt had taken an environmental risk for financial gain and had been seriously careless in failing to comply with the resource consent condition. Both of those failings required deterrent penalties to eliminate incentives to act in such a way in future.
Justice Miller said the offending fell into the moderately serious category and the sentence was appropriate.
