Environmental / Resource Management
In Otago Regional Council v Clutha District Council [2020] NZDC 26125 Judge Dwyer has fined the Clutha District Council (Council) $488,250 for "egregious" failures in managing its wastewater treatment plants. The decision serves as a warning to territorial authorities to be proactive in the management of their wastewater systems, even when contractors have been engaged carry out their operation and management.
The facts
The Council pleaded guilty to six charges brought by Otago Regional Council for breaches of the Resource Management Act 1991 (RMA) arising from the operation of five wastewater treatment plants that it operates.
Since 1 July 2019 the five wastewater plants have been managed and operated on behalf of Council by Citycare Limited (Citycare). However, no maintenance on the plants had been carried out since March 2019 and Citycare’s staff had only driven past the plants without going in to check them since it took over operations. Compounding that failure, the Council did not carry out any oversight of Citycare’s management. This should have involved Council checking the plants itself from time to time and requiring strict compliance with a reporting regime.
Inspections revealed that the wastewater treatment plants were in various poor states, which resulted in the discharge of inadequately treated wastewater containing human effluent into a number of rivers. There were also adverse cultural effects.
The sentencing starting point
When considering the starting points for the offending, the Court stated:
- That there was a systemic failure on Council's part to properly operate and/or monitor the operation of the wastewater plants whose outputs flowed into various water bodies.
- These failures led inevitably to discharges which exceeded a range of quality criteria that they were obliged to meet.
- Council was reckless in the extreme and its culpability was at the very high end of the scale.
- The Council had 11 wastewater plants under its control, so denunciation and deterrence were at the forefront of considerations in this case.
- Under s 6(a) of the RMA, the Court was obliged as a matter of national importance to recognise and provide for the preservation of the natural character of rivers and their margins and their protection from inappropriate use.
- The fact that this offending involved the breach of numerous conditions of Council's resource consents was a particularly aggravating factor in the offending.
The Court set starting points of $120,000 in the case of two wastewater discharges, $100,000 in the case of three wastewater discharges, and for the discharge to air the sum of $80,000.
Any mitigating factors?
The Council had one previous conviction for a discharge offence in 2018 and received no discount for past good character. There was a reduction from the starting point of 25 percent in each case to reflect Council's prompt guilty pleas. For the six charges the Council was fined a total of $488,250.
The lesson to territorial authorities
This case is a stern reminder to territorial authorities to maintain their wastewater systems and keep oversight of plants run by contractors or council-controlled organisations. It is not an option for territorial authorities to engage contractors and then take a hands-off approach. The Court expects territorial authorities to be vigilant. They have an obligation to monitor the performance of facilities themselves as well as the third party’s management. Adequate checks, balances and reporting regimes are required. One option is for territorial authorities to incorporate KPIs into their contracts with contractors.
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