BOYD v Taranaki REGIONAL COUNCIL [2022] NZHC 3451

BOYD v Taranaki REGIONAL COUNCIL [2022] NZHC 3451 [15 December 2022]IN THE HIGH COURT OF NEW ZEALANDNEW PLYMOUTH REGISTRYI TE KŌTI MATUA O AOTEAROANGĀMOTU ROHECRI-2022-443-000057[2022] NZHC 3451BETWEEN COLIN DAVID BOYDAppellantAND Taranaki REGIONAL COUNCILRespondentHearing: 13 December 2022Appearances: P J Mooney for AppellantK J L de Silva for RespondentJudgment: 15 December 2022JUDGMENT OF GRICE J(Sentence Appeal)Introduction[1] The appellant, Colin David Boyd, appeals his sentence relating to chargesunder the Resource Management Act 1991. The charges are for the discharge ofcontaminants into an unnamed tributary of the Mangatengehu stream, for reclaimingthat unnamed tributary and for breaching of an abatement notice. He was fined$95,750.00 in total.[2] The appellant challenges the decision of the District Court arising out of adisputed facts hearing and the sentence imposed based on those facts.11 Taranaki Regional Council v Boyd [2022] NZDC 10744 [Disputed facts decision].Background[3] The facts are taken from the notes of sentencing.2[4] The appellant is the sole director of Miles Square Farms Limited (theCompany). The Company owns a property (the farm) of approximately 480 hectareswhich is predominantly farmed as a dairy farm. There are six land titles across thefarm, including Identifier TNJI/397 (the site), on which significant earthworks wasbeing carried out.[5] The Mangatengehu Stream and a tributary flow west to east through the farm.The tributary has large bends and pools within it, harbouring a riparian margin withvegetation on its banks.[6] The purpose of the earthworks on the site was to reclaim part of the bed of thetributary. There was a discharge of sediment into the tributary because the silt andsediment controls were ineffective. This led to a complaint that the tributary below thesite of the earthworks was discoloured.[7] Between 27 October 2019 and 13 March 2020, a number of inspections wereundertaken at the site. In particular, on 29 October 2019 council officers inspected thesite and found that certain works had been undertaken to reclaim the bed of thetributary. The diversion included approximately 278 metres of the tributary havingbeen reclaimed and removal of the majority of the associated riparian vegetation.[8] On 30 October 2019 two abatement notices were served on the appellant:requiring him to immediately cease all earthworks and the associated silt and sedimentdischarge in contravention of rr 55 and 74 of the Regional Freshwater Plan forTaranaki (Abatement Notice 1); and requiring the appellant to install silt and sedimentcontrols and ensure that runoff from disturbed areas is directed through the silt controlsby 3 November 2019 (Abatement Notice 2).2 Taranaki Regional Council v Boyd [2022] NZDC 19123 [Sentencing decision].[9] On 4 November 2019 a reinspection was undertaken to assess compliance withthese abatement notices. It was found that silt and sediment controls had been installedwithin the channel of the diversion but were insufficient to cope with significantrainfall. As a result, a significant amount of erosion had occurred within the channelof the diversion.[10] On 21 November 2019 another inspection found contravention of AbatementNotice 1 though this did not lead to a charge. On 25 November a council officer spokewith the appellant about the inspection and advised him of the requirement to maintainsilt and sediment controls at the site. A further abatement notice (Abatement Notice 3)was issued. It required the appellant to install silt and sediment controls and replacethe ones that had failed, ensure all storm water runoffs from the disturbed area wasdirected through these controls, check and maintain the controls and replace anycontrols that fail.[11] On 29 November a re-inspection of the site found yet another contravention ofAbatement Notice 1. A large yellow digger was found at the site, although not inoperation during the inspection. Further works had been undertaken – a large concreteculvert had been installed within the tributary and a significant amount of scouringand erosion was observed on the downstream (eastern) side of what was described asthe "Large Culvert". There was also evidence that further north and bordering on theboundary of the site further works had been conducted within the tributary. Whenasked about these newly discovered works, the appellant stated he believed he coulddo the works because he believed Abatement Notice 1 only applied to the immediatearea of the diversion works.[12] On 3 December 2019 a re-inspection of the site found that Abatement Notice3 had been contravened. This gave rise to the charge for contravening an abatementnotice under s 338(1)(c) of the Resource Management Act 1991. Although the silt andsediment controls were operating, they were offering minimum treatment.[13] On 13 March 2020, a re-inspection of the site found again a contravention ofAbatement Notice 3. There was heavy silting within the channel of the diversion andthe installed silt controls were full and offering no treatment. No further silt andsediment controls were installed and a significant amount of erosion of the batter ofthe channel of the diversion had occurred since the previous inspection. The controlshad also not been maintained.The disputed facts hearing[14] The disputed facts hearing was centred on the effects of the offending. Thehearing took place before a Judge of the Environment Court. The appellant claimedthat the Council, in its evidence, had focussed on effects arising "not only from theworks that are the subject of these prosecutions but also historic works".3[15] The appellant's position was that over the last 25 years he and the Companyhad undertaken a significant amount of drainage work that included the constructionof a diversion upstream of the part of the tributary which was subject to the currentcharges. That was the historic work referred to by the Judge as the original diversion,Diversion 1. The diversion that is subject to the current charges is referred to asDiversion 2. In response, the Council argued that the three experts from whom it hadobtained reports had amended their reports to remove reference to Diversion 1 and hadtaken into account the impact of that removal in their analysis and conclusions. Theappellant's concerns remained that that these amendments did not substantially changethe report writers' conclusions on the environmental effects. Accordingly, Mr Boyddisputed those conclusions. Mr Boyd's case, the Judge recorded, was that thehistorical works "must have adversely impacted the unnamed tributary", and that thoseimpacts should not be factored into the analysis of effects on the environment of thisoffending.4[16] The Judge had before her the three reports (amended) from the Councilprovided by Mr D R Harrison (Director-Operations), Mr P J Deegan (EnvironmentalScientist – Freshwater biology), and Ms B R Zieltjes (Environmental Scientist) and astatement of evidence provided by a consultant engineer, Mr H R Barnes, for theappellant. The primary focus became Mr Harrison's report and evidence andMr Barnes' evidence.53 Disputed facts decision, above n 1, at [3].4 At [13].5 At [10].[17] Mr Harrison's report concluded that the work undertaken to modify thetributary "has caused significant adverse effects on the environment, and still has thepotential to cause further adverse effects on the environment".6 MeanwhileMr Barnes' evidence was based on the geography of the area, the groundwater table,and aerial photographs of the farm with commentary on what they showed, includingloss of vegetation and reduction of flows in the unnamed tributary.7 He did not addressthe environmental effects of the works under prosecution. The main areas ofdisagreement between Mr Harrison and Mr Barnes' evidence were around what theaerial photographs suggested and the coloured plan sourced by Mr Barnes.[18] All the experts were called and cross-examined before the Judge.[19] The Judge found "beyond reasonable doubt that the unnamed tributary thesubject of this prosecution would have retained either a permanent or intermittent flowof water, which would have supported instream biodiversity and which in turn hasbeen adversely affected by Diversion 2".8 Her Honour noted the only evidence shehad on the effects of the offending works was that provided by the Council's witnesses.Her Honour held:[38] Having determined that the unnamed tributary in which works wereundertaken was either a permanent or intermittent stream at the timeof the offending works were undertaken, there is no basis to reject theevidence of the Council's witnesses on effects.[39] Further, I accept the evidence of the Council's witnesses that theirassessments and conclusions as to the effects of the offending relateto Diversion 2. Therefore, for the purpose of assessing theenvironmental effects of the offending, I would place significantweight on the reports of the Council's witnesses.Appeal[20] The essence of the appeal is that the District Court Judge misconstrued theevidence relating to the environmental effects of the offending in that she failed torecognise that the dominant cause of any effects noted was in fact earlier drainagework undertaken by the appellant – work that was not the subject of the prosecution.6 At [15].7 At [22].8 At [36].The appellant says that the Judge misunderstood the effects of the historical works onthe relevant flow of water and specifically:(a) the Judge failed to recognise the significance of the cross-examinationof Mr Harrison where he accepted that the solid blue lines drawn onthat photograph fairly represented the flow of water that has originallyflowed in the unnamed tributary. Mr Harrison said "but there is alsopotential for significant ground water to be entering the down streamchannel which would result in a permanent flow"(b) The key significance is that when the other Council experts, inparticular Ms Zieltjes, referred to impacts they are takingmeasurements from a fully functioning stream whereas it is submittedthat the effects of Mr Harrison's evidence is that following theconstruction of Diversion 1 there is much less water flow.(c) Mr Harrison acknowledged that he is not disputing that the flow wasimpacted and acknowledged later that he could not provide an actualmeasure as to the effect of the change in flow.(d) Mr Harrison stated, after referring to a photo where Diversion 2 entersinto a drain that ultimately makes it way to the unnamed tributary, "thisdemonstrates to me that given there is no contributing streams upstreamof this photo, yet you can see flowing water within the channel, thatflowing water occurs in these channels whether or not there is anupstream tributary and this is because the water from the ground wateris seeping into the channel and causing it to flow". The appellant saysthe importance of that acknowledgement is that the environmentaleffects on ground water is significantly different from streams flowingabove ground.Assessment[21] Under s 244 of the Criminal Procedure Act 2011 the appellant has a right toappeal against his sentence. The appeal must be allowed if the Court is satisfied thatfor any reason there is an error in the sentence, and that a different sentence ought tobe imposed.9[22] The Court of Appeal recently in Roulston v R10 noted that a determination on adisputed facts requires the Judge to make an evaluative assessment of the evidence.The appellate court has an obligation to consider the evidence and reach its ownopinion on the facts and the dispute.[23] In the District Court, it was noted by the Judge that Mr Boyd's case was thatthe historical works must have adversely impacted the unnamed tributary and thoseimpacts had not been factored properly into the experts' analysis of the effects on theenvironment of that offending. On appeal, Mr Mooney refined his argument. Inessence, it amounted to recapping the argument made before the District Court that itwas the historical impacts which caused the most significant detrimental effects on thewaterway. That is because the Judge had failed to recognise the significance of, inparticular, the evidence of the Council expert Mr Harrison, in relation to the source ofthe water flowing into the unnamed tributary. Mr Mooney argued that Mr Harrisonhad accepted that there was "significant groundwater" entering the downstreamchannel rather than surface water. He argued that the relevance of that was that theJudge had misunderstood the environmental effects which would result from the factthat it was groundwater (largely) rather than surface water flowing into the channel.[24] Mr Mooney submitted that the environmental effects on groundwater wouldbe "significantly different from streams flowing above ground".11 The evidential basisfor that submission, Mr Mooney said, could be found in the evidence of Mr Harrisonwho had "acknowledged that there is no aquatic life and groundwater until it entersthe stream."12 In Mr Mooney's submission, this was the "key issue which the LearnedJudge overlooked".139 Criminal Procedure Act 2011, s 250(2).10 Roulston v R [2020] NZCA 255 at [20].11 Submissions on behalf of appellant dated 5 December 2022 at [26].12 At [26].13 At [27].[25] Mr Mooney said that evidence concerning the environmental effects given bythe expert witnesses, Mr Deegan and Ms Zieltjes was undermined by Mr Harrison'sconcession about groundwater. That was because if the water flow was as a result ofgroundwater, then any "measurements by either Mr Deegan or Ms Zieltjes as to fishdiversity, or the like is irrelevant as they do not exist in groundwater."14 Their evidencecould therefore not be relied on by the Judge to assess the vulnerability or importanceof the affected environment and the extent of the damage to it. Therefore, Mr Mooneyargued, the Judge's conclusion that the environmental effects were serious andongoing was in error because the Judge had failed to recognise the effect of MrHarrison's evidence. As a result of the Judge's error, the sentence was based on amisunderstanding as to the seriousness of the detrimental effects involved. Thesentence was therefore excessive. Rather than the starting point taken by the Judge of$75,000 for the discharge and reclamation charges and a further $20,000 fine for theAbatement Notice offence, Mr Mooney submitted that a starting point of $40,000 mayhave been more appropriate with an increase for the charge relating to the abatementnotice and a discount for the appellant's pleas of guilty, as well as his undertaking tocarry out remedial work.[26] The Judge had regard to three reports from experts called by the Council,against a background of several inspections and re-inspections and inadequateresponses from the appellant to the Council's concerns. Mr Harrison was an employeeof the respondent. As Rivers Manager he had assessed the works undertaken by theappellant. He had qualifications in natural resource management and forestry, andover 13 years' experience in river and drainage engineering works. Mr Deegan wasalso an employee of the respondent as an Environmental Scientist, FreshwaterBiology. He had qualifications and experience in ecology and environmental science.Ms Zieltjes was an employee of the respondent as an Environmental Scientist and hadscience qualifications in biology. The expert called by the appellant, Mr Barnes, wasa consultant engineer in private practice with civil engineering qualifications andexperience in a wide range of engineering and construction projects. Mr Barnes didnot make any findings on the environmental effects of Diversion 2 but directed hisevidence to trying to prove the environmental effects were caused by historical14 At [34].earthworks. Mr Barnes accepted he was not qualified to give evidence as to theenvironmental effects.[27] The appeal rests on the argument that the evidence did not allow a finding bythe Judge that the relevant water the subject of the environmental testing, in particularby Ms Zieltjes, and Mr Deegan was largely groundwater that would not exhibit thebiodiversity or have the same life supporting capacity that would have been the caseif it had been largely surface water that had been flowing in the stream.[28] I do not accept that submission. As Ms de Silva pointed out, the evidence wasthat while there may have been a significant groundwater contribution to the flow, thisdid not mean that there would be no aquatic life when the groundwater entered therelevant stream. In addition, the Judge was cognisant of the presence of significantgroundwater in the flow. The appellant pointed out that:(a) the Judge noted in her decision that there was a significant groundwatertable relatively close to the surface from which a number of naturalsprings "either flow underground or on occasion break the surface. Onthat, he [Mr Barnes] and Mr Harrison were in agreement".15(b) the Judge noted that Mr Harrison considered the groundwatercontribution to flow would have been significant.16(c) Mr Harrison's evidence when cross-examined on this issue had beenthat the water in the tributary "and all streams when it's not rainingcomes from groundwater. This is no different." He went on to say that"water in streams comes from other streams and water coming off themountain, but it also comes from groundwater. There is a verywell-known fact that there's a clear connection between groundwaterand streams and rivers. So therefore, the flow in streams and rivers isderived from groundwater other than when it's raining".1715 Disputed facts decision, above n 1, at [23].16 At [29].17 Notes of evidence, cross-examination of Mr Harrison, at 14.(d) Mr Harrison accepted that groundwater beneath the surface may haveno aquatic life (although that was not necessarily the case), however, itdid have aquatic life when it entered the stream.[29] The text of the cross-examination of Mr Harrison, upon which the appellanthad relied for his primary submission that the significant groundwater meant that therewould be no or little aquatic life in the stream and therefore the environmental effectsof diversion were far less than Ms Zieltjes and Mr Deegan had reported, insofar asrelevant went as follows (emphasis added):18Q. Isn't it the case that what's happened is that the channel has been dug down to a pointwhere it's capturing underground water that would not normally be caught?A. No, I don't agree with that. This demonstrates to me that given that there is nocontributing streams upstream of this photo yet you can see flowing water within the channel,that flowing water occurs in these channels whether or not there is an upstream tributary andthis is because the water from the groundwater is seeping into the channel and causing it toflow.Q. And that's my very point. Is that the water in this channel has come from groundwater,hasn't it?A. Just like the water in the, in this tributary, and all streams when it's not raining comesfrom ground water. This is no different.A. Well no. Water and streams do not come only from underground water, they come fromrivers and streams flowing off the mountain, don't they?A. No, that's not right. You're correct in that water in streams comes from other streamsand water coming off the mountain, but it also comes from groundwater. There is a verywell-known fact that there's a clear connection between groundwater and streams and rivers.So therefore, the flow in streams and rivers is derived from groundwater other than when it'sraining.Q. In the open tributary, southern tributary that was ultimately impacted by thesenorth south channels and so on, there was clearly water flowing at some point over the yearsin that tributary, wasn't there?A. Yes, there would have been, yes.Q. And you're saying to us that that was sourced, among other things, from groundwater?A. Yes I am, yes.Q. okay. I can't dispute that. But my question of you I suppose, comes down to this.That once that tributary was impacted by the north south channels, and we've gone through- there was perhaps about four of them over 10 years or so?A. Yes.18 At 14-19.Q. The only source of water would have been that channel that we can see there in 18Aand 17A and so on, is groundwater, isn't it?Q. It is, yes. And it's flowing water as you can see..Q. Paragraph 10 of your reply, you say that the groundwater contribution to the flowwould have been significant. Right?A. Yes.Q. Now normally the groundwater is by definition below the surface, isn't it?A. Yeah, absolute -Q. Until it bubbles through to a stream?A. Absolutely. Yes.Q. So when it's groundwater beneath the surface there's no aquatic life is there?A. Not until it enters the stream. Although to be fair there is actually evidence of aquaticlife existing in aquifers in Canterbury below the surface. Small shrimp life creatures[30] The Judge referred to the evidence of Mr Harrison in her sentencing decisionas follows:[32] Mr Harrison made several observations about the effects of the recentworks in his report:14. The infilled channel has been completely removed from theenvironment and no longer provides natural ecological, hydrologicaland geological services.18. The excavated channels are steep sided, run in straight lines withoccasional 90 degree bends, and typically have a uniform cross-section and grade. The ground material that the channels have beencut into predominantly consists of loose gravels, sand overlain withclay, and a thin layer of topsoil (see Figure 5).19. This gravel and sand material is highly erodible 24. The excavated channels have no riparian vegetation.25. Riparian vegetation provides habitat and food for a range of nativeand beneficial organisms.26. This reach was a stream of high naturalness that supportedinstream biodiversity and was a continuation of the natural channelupstream and downstream of the works area, allowing geomorphicprocesses, such as gravel transport and erosion, to happen naturally.27. The excavated channel would not have the same life supportingcapacity as the natural channel. Erosion rates will be high for manyyears, and geomorphic and hydrological processes will be alteredindefinitely.28. In my opinion, the potential adverse effects of infilling the naturalchannel and diverting the stream into an excavated channel will besignificant and long lasting.[33] Mr Harrison concluded that the work undertaken to modify the unnamedtributary "has caused significant adverse effects on the environment, and stillhas the potential to cause further adverse effects on the environment". Hesaid:29. It is my view that the work undertaken to modify the unnamedtributary of Mangatengehu Stream on the Mile Square Farms LtdProperty on Derby Road, Tariki, has caused significant adverse effectson the environment, and still has the potential to cause further adverseeffects on the environment.30. Adverse effects include: pollution of water and the downstreamstreambed from a discharge of silt and sediment; habitat loss indownstream reaches caused by silt and sediment smotheringstreambed gravels and cobbles; habitat loss caused by the destructionof mature riparian vegetation; habitat loss caused by the destructionof the streambed over the modified reach.31. Potential adverse effects include: ongoing silt and sediment losscaused by disturbed earth and erosion of the excavated channel;increased flood flows; reduced summer low flows; and a majoradjustment to natural geomorphic processes causing an increase indownstream erosion, and damage and loss of capacity to downstreamculverts and bridges.32. The adverse effects have been significant and will continue formany years.[31] Ms Zieltjes was clear that the biomonitoring survey upon which she relied toinvestigate the effects of the impacts of Diversion 2 were undertaken at four samplesites, which would not have been influenced by Diversion 1 or the works, upstream ofDiversion 1 due to the historic nature of Diversion 1.19 Under cross-examination MrZieltjes remained adamant that her survey assessed the impacts from Diversion 2. Shesaid:20Q. So the earthworks up there have had an impact on what you're recordedat site 2 and indeed site 3?A. The earthworks and subsequent discharge of silt and sedimentimpacted site 3. The impacts on site 2 were predominantly due to thedewatering of the stream and the filling of the stream bed.Q. Indeed though the effects have occurred long before the area that we'vetalked about but indeed have been impacted by earthworks to the west, closerto the mountain, of that diversion that was originally called diversion 1 andindeed by other north south channels that were constructed over the years,doesn't it?A. The survey that I conducted was not assessing prior works that wereoccurring upstream of channel 2. My survey was designed to assess anyimpacts that silt and sediment, the discharge from diversion 2 had on theunnamed tributary.Q. When with respect to site number 2 you say that the score is fair, MCIscore is fair?A. Yes, mhm.Q. Would you agree with me that that reflects earthworks not only in theimmediate vicinity but earthworks much closer to the mountain?A. No, I disagree.Q. Well were you aware that there had been significant earthworks closer tothe mountain along what had been the course of that tributary over theyears?A. That's not what I was assessing with this biomonitoring survey.Q. Okay. So were you not aware of that?A. I was assessing the works in question which involved the infilling of thestream and the discharge of silt and sediment from diversion 2. ·Q. Okay. Well let me put it to you another way. If you were told that therehad been significant earthworks to the west, closer to the mountain, over aperiod of perhaps 10 or 15 years in which the flow within that tributary, thatsouthern tributary, had been impacted, that must of itself impacted upon thescore that you recorded at that second site. Would you agree?A. No, that's a hypothetical question not relevant to the survey that Iconducted.19 Brooke Zieltjes' Statement of Evidence at 7-10.20 Notes of evidence, pages 26-29(emphasis added)[32] The appellant submitted that Ms Zieltjes had referred to detrimental impactsbased on samples taken "from a fully functioning stream, whereas the effects of MrHarrison's evidence is that following the construction of Diversion 1, there is muchless water flow and indeed he makes particular reference to the significantgroundwater." This is not correct, Ms Zieltjes said Site 2 was undertaken in thedewatered reach of the affected tributary which she said showed "severely depletedmacroinvertebrate populations".21[33] The Judge commented on Ms Zieltjes evidence in her decision on disputedfacts as follows:[34] Ms Zieltjes was asked about the survey she conducted. She confirmedtht [sic] the survey was not assessing prior works upstream of channel2. It was designed to address any impacts of Diversion 2.[35] Ms Zieltjes was asked about prior earthworks in the vicinity andtheir effects. She maintained that she had not assessed the effects ofthose works[34] In her sentencing decision, the Judge also referred to Mr Zieltjes report asfollows:[35] Ms Zieltjes' report concluded:Extensive sediment was evident throughout the Stream below theunauthorised earthworks. The impacts from the sediment dischargefrom the works will likely be problematic for some time. It is probablethe sediment will only be removed by high flows, and is expected torequire numerous floods to be completely removed, provided there isno additional input of sediment into the Stream. Overall, in myopinion, the unauthorised earthworks and reclamation of the Streamhas resulted in significant loss of high quality macroinvertebratehabitat. It has resulted in the displacement and likely death ofnumerous macroinvertebrates and fish. These works resulted in thedischarge of sediment into the Stream, which will have had chronicimpacts on biota for hundreds of metres downstream.21 Brooke Zieltjes' Statement of Evidence at 9.[35] The Judge also had before her, the evidence of Mr Deegan. She outlined hissummary and conclusion in her sentencing decision as follows:22[34] Mr Deegan's summary and conclusion includes:The stream channel that was altered by reclamation no longerprovided any suitable permanent fish habitat as a result of the infillingof the Stream. The work likely resulted in the loss of all fish withinthat 278 metre stretch (as per the agreed summary of facts) of stream,by result of crushing from dirt and other substrates. It is expectedthat anywhere from 200-600 non-juvenile fish were killed by thedirect infilling of the Stream, although in terms of total fish life stageskilled this could be a very conservative figure depending on theabundance of larvae or juvenile non-migratory bully species, or otherspecies that spawn in the headwaters of streams, such as lamprey andshortjaw kokopu. In my professional opinion, based on the sediment loading I havewitnessed, I expect that there has been a significant displacement offish from the Stream above the confluence as a result of the loss ofhabitat diversity. I also expect that the effects of prolonged exposureof fish to suspended sediment and deposited sediment reach beyondthe confluence, although the level of effects is hard to quantify, andwill be lower than that above the confluence due to the additionalflows from Stream 2. The discharge of sediment has and likelycontinues to be causing damage to fish gills (and the subsequentincreased risk of infection, disease, and predation for those fish), thechanging of normal behaviours of resident fish (including migrationaway from the area and feeding activities), and the loss of foodresources available to those fish (loss of macroinvertebrates displacedby sediment). Deposited sediments will also be smothering egghabitat for fish, and making it less available, resulting in the loss ofeggs and increasing the competition for egg laying locationsrespectively.It is important to outline the long term effects of habitat loss fromstream reclamations. In contrast to 'one off' contaminant dischargeincidents where recruitment into an affected area can instantly beginwhen the water quality is below chronic and acute levels (in mostcases), it can take years to thousands of years for the habitat values ofreclaimed stream to become available either through anthropogenicintervention or natural processes. The implications of loss of habitatcan extend for a significant period, and therefore, the effects can becumulative over many generations for fish species. Overall, I believe the earthworks and reclamation in the Stream hasresulted in the significant loss of and loss of access to high qualityhabitat for a variety of fish species. The works have likely resulted inthe deaths of a significant of fish over several species, some of whichmay have had a conservation status of at risk declining and possibly22 Sentencing decision, above n 2, at [34].nationally vulnerable, and that were also regionally significantspecies.[36] There was ample evidence from the three experts called for the Council uponwhich the Judge could reach conclusions as to the significant detrimental effectscaused by Diversion 1.[37] In addition, the Judge had before her a cultural impact statement concerningthe potential significant and long-lasting adverse effects of the diversion23 on theculture and traditions of Pukerangiora and Te Atiawa.[38] The Judge aptly concluded that the environmental and cultural effects of theoffending were serious, putting it as follows:24[40] I accept the conclusions on environmental effects from the three reportwriters. The effects include loss of biodiversity, impacts ongeomorphic and hydrological processes, increased erosion rates,pollution, habitat loss, displacement and killing of macroinvertebratesand fish, exposure of fish to sediments, and smothering of egg habitatfor fish. I agree with the report writers that the effects are significant,cumulative and long-lasting. I am concerned with the effects onthe relationship, culture and traditions of Pukerangiora and TeAtiawa. In all the circumstances I determine that the environmentaland cultural effects of this offending are serious.[39] As will be apparent I do not consider that the Judge made any errors in herassessment of the evidence. I am of the view that she evaluated the evidence correctly.The basis for the appeal was that the Judge was in error in her assessment of theenvironmental evidence. There was no argument otherwise directed at the level of thesentencing on the basis of her findings as to the significance of the environmental andother effects. In those circumstances, I am satisfied that she adopted an appropriatestarting point. There was no specific criticism made of the deductions and upliftsapplied. They were appropriate in the circumstances.[40] Accordingly, the appeal is dismissed.____________________23 At [36].24 At [40].Grice JSolicitors:Mooney & Webb, New PlymouthKarenza de Silva, Auckland