Environmental / Resource Management

A Warning Shot to Territorial Authorities for Future Unlawful Discharges

In Waikato Regional Council v Matamata-Piako District Council [2020] NZDC 7135 Judge Harland has issued a warning to territorial authorities about the likelihood increased fines for future unlawful discharges. She also sets out several proactive management measures that territorial authorities should be undertaking in respect of their infrastructure.

Download here for the Reserved Decision of Judge Harland

The facts

The decision concerned a guilty plea by Matamata-Piako District Council (“Council”) to a representative charge of permitting the discharge of wastewater containing untreated human sewage in circumstances where it may have entered water contrary to section 15(1)(b) of the Resource Management Act 1991 (“RMA”).  There were two related discharges.  The first occurred when a tree on private property fell and broke a wastewater pipe which traversed the property.  The broken area of pipe was in a remote area and wastewater discharged into a small stream in a tree-lined gully which unbeknownst to the Council, was a tributary of the Piako River. Approximately 100 cubic metres of discharge occurred over a 12-hour period.  The discharge occurred primarily at night-time because the Council ceased efforts to repair the pipe after dark due to health and safety concerns.  The second discharge occurred the following day while repairs were being carried out on the pipe.  Council staff blocked the pipeline at the manhole access immediately upstream of the fracture so that replacement piping could be installed.  This resulted in the wastewater line filling to capacity which resulted in an overflow at the manhole.  The overflow discharged overland and went down the gully bank and into the same tributary stream.

The culpability of the Council

In terms of culpability, the Court accepted the initial fracture of the pipe was not the fault of the Council. However, the Court then went on to make some interesting findings that meant the offending could not be low, arising out of the Council’s overall responsibility under ss 125 and 126 of the Local Government Act 2002 to assess the actual and potential consequences of sewage discharges within the district. These were:

  • there should have been greater consultation with reticulation experts prior to making the decision to abandon the repair work as it got dark;

  • Council officers were not aware that there was a stream or that it connected to the Piako River;

  • neither the Water & Waste Manager nor the KVS Works Manager was aware of Council’s standard operating procedure for responding to a sewer spill;

  • there was not a clear structure of command;

  • there was a failure of more senior management to ensure that these managers were properly trained and aware of what to do in such an emergency; and
  • the second discharge was entirely avoidable.

Overall, the Court considered that the culpability for offending was somewhere between moderate and moderately high.

What proactive management measures should territorial authorities be taking?

The Court’s findings indicate that territorial authorities’ management measures in respect of discharges should address the following: 

  • knowledge of the areas of wastewater infrastructure that they manage;

  • Council officers should be trained so that they are aware of standard operating procedures;

  • there should be a clear structure of command; and

  • consultation with reticulation experts should take place as part of the decision-making process.

The effects on the environment

In terms of effects on the environment, the Court agreed that there was no evidence of long-term damage to the Piako River, which is a fast-flowing river. The Court considered the impact to be moderately serious because there was actual discharge to the tributary with respect to the first discharge.  There was not enough information to assess environmental impact with respect to the second discharge.

The starting point - an increase in sentencing levels for territorial authorities?

In setting the starting point, the Court considered case law authorities and noted that cases prior to the uplift in fines by the 2009 RMA amendments were of little assistance.  Relevantly, Judge Harland noted that there was a case for arguing that there should be an increase in sentencing levels for territorial authorities for unlawful wastewater discharges because of the statutory responsibilities they have under ss 125 and 126 of the LGA02 to assess the actual and potential consequences of sewage discharges within the district.  She said:

"My analysis of the cases leads me to conclude that there may well be a case for increasing penalties against territorial authorities for discharges from wastewater plant, be that pipeline or facilities, because of the statutory responsibilities territorial authorities have under ss 125 and 126 of the Local Government Act 2002 to assess the actual and potential consequences of sewage discharges within the district. With an increasing focus nationally on water quality, and the approach the Court has taken in dairy effluent cases where the need for proactive management practices that include the effective training of staff have been highlighted, there may well be a case for the penalties against territorial authorities for offending of this nature to increase. It is probable that Ms O’Sullivan’s suggested starting point reflects this, however argument on the point was not developed during this hearing."

[Emphasis added]

 

Judge Harland’s comments therefore act as warning to territorial authorities that penalties for unlawful discharges may increase. Further, territorial authorities should ensure their proactive management practices include effective training of staff.

In the absence of any specific argument seeking an increase of the starting point, the Judge considered that a starting point of $70,000 was appropriate.

Discounts

The Judge granted a 25% discount for early guilty plea and a 5% discount to reflect the Council’s full cooperation with the regional council and steps taken following the incident.  She considered that any higher level of discount was not appropriate because those initiatives ought to have been considered and implemented earlier.  The Judge also refused to grant any discount for previous good character because the Council had a previous 2003 conviction under s.15(1)(b).  However, as the circumstances of that previous conviction were unknown, the Court did not consider it appropriate to uplift the starting point either. This resulted in an end sentence of $49,875.00.

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