NORTHLAKE INVESTMENTS LIMITED v OTAGO REGIONAL COUNCIL [2020] NZHC 1144

NORTHLAKE INVESTMENTS LIMITED v OTAGO REGIONAL COUNCIL [2020] NZHC 1144 [28 May2020]IN THE HIGH COURT OF NEW ZEALANDINVERCARGILL REGISTRYI TE KŌTI MATUA O AOTEAROAWAIHŌPAI ROHECRI-2019-425-27[2020] NZHC 1144BETWEEN NORTHLAKE INVESTMENTS LIMITEDAppellantAND OTAGO REGIONAL COUNCILRespondentHearing: 28 November 2019Appearances: A F Pilditch for AppellantN M Laws for RespondentJudgment: 28 May 2020JUDGMENT OF CLARK JIntroduction[1] Northlake Investments Ltd (Northlake) is a property development companycarrying out a residential subdivision at Aubrey Road near Wanaka. On 17 and18 August 2017, heavy rainfall carried sediment from the earthworks at the site alonga natural flow path to the Clutha River, just over 1 km away. Northlake was prosecutedfor discharging a contaminant into water under ss 15 and 338 of the ResourceManagement Act 1991 (RMA). On 21 June 2019, Northlake was convicted1 and fined$42,500.2 Northlake appeals its conviction on the basis the Judge erred both in lawand in his assessment of the evidence by finding that Northlake failed to take thenecessary reasonable precautions to prevent the discharge. Northlake also appeals thesentence on the grounds of disparity with the sentence imposed on its contractor CivilConstruction Ltd (CCL), which pleaded guilty to the same offence.1 Otago Regional Council v Northlake Investments Ltd [2019] NZDC 11710 [Conviction decision].2 Otago Regional Council v Northlake Investments Ltd [2019] NZDC 17582 [Sentence decision].2Background[2] Northlake is part of the Winton group of companies, which undertakesdevelopments across Australia and New Zealand. The Northlake site comprises108 ha of former pasture land 2.6 km northeast of the Wanaka town centre. It is locatedwithin the Northlake Special Zone of the Queenstown Lakes District Council (QLDC)Operative District Plan. On its eastern boundary, towards the Clutha River, theNorthlake site is adjacent to a property owned by Exclusive Developments Ltd (EDL).There is a natural flowpath from the Northlake site that runs through the EDL land andan adjacent Department of Conversation reserve before entering the Clutha River.[3] On 9 May 2016, the QLDC granted resource consent to Northlake to undertakebulk earthworks over a 19 ha area of the property in anticipation of subdivision.3 On26 September 2016, Northlake was given consent to carry out the subdivision over anarea of 25 ha.4 On 14 February 2017, the QLDC gave further resource consent forNorthlake to undertake bulk earthworks over the remaining 6 ha.5 The relevantresource consents are the two "earthworks consents" (as Judge Dwyer described them)RM160186 and RM161127.[4] The resource consent application documents contained the following proposalsregarding the staging of the earthworks:(a) 9 May 2016 consent:3.3.2 Staging WorksThe bulk earthworks construction will be staged in order to minimisethe area that is 'open' at any one time (i.e. stripped of turf and topsoil).Preliminary earthworks area boundaries are shown on the P-SMP as'Area, A, B etc. It is envisaged that Area D, which is predominantlycut in approximately 2.8 ha in size will be stripped first along withArea A, which is predominantly fill and also approximately 2.8 ha insize. Once the filling of Area A is complete, the future roads will beleft with a sacrificial metal layer shaped as a wide "V" and all futurelots will be re-topsoiled and seeded/fettilised.3 Resource consent RM160186.4 Resource consent RM160509.5 Resource consent RM161127.3The filling operation will proceed to the north into either Area B orArea C. As the cut operation in Area D is completed (progressing toArea E once Area D is complete), future roads will be metalled andfuture lots will be topsoiled and seeded/fertilised. It is envisaged thatthe contractor will submit a detailed methodology along with their sitemanagement plan prior to the commencement of any site works. Therecommended conditions reflect this requirement.(b) 14 February 2017 consent:3.3.2 Staging WorksThe bulk earthworks will be staged in order to minimise the area thatis 'open' at any one time (i.e. stripped of turf and topsoil).The filling operation will proceed to the north into either Area B orArea C. As the cut operation in Area D is completed (progressing toArea E once Area D is complete), future roads will be metalled andfuture lots will be topsoiled and seeded/fertilised. It is envisaged thatthe contractor will submit a methodology along with their sitemanagement plan. The recommended conditions reflect thisrequirement.[5] The consent applications recognised the importance of staging bulk earthworksto minimise the area that would be 'open' at any one time in order to manage dust andsediment. As will be seen, a significant issue for the appellant arises from its relianceat trial on the terms of both the resource consent and the Site Management Plan (SMP)which Northlake, as consent holder, was required by the conditions of the consents toprovide. There was, and remains, a considerable focus on the issue of what wasintended by the term 'open' in relation to the necessary ground works.The SMP[6] In accordance with the requirements of RM160186 an SMP was prepared byCCL and submitted by Northlake to QLDC for review and certification. The relevantparts of the SMP are summarised:41. OutlineThis is a live document and will be updated as and whennecessary.3. Ongoing management and monitoring through [sic] the projectThe following areas have been identified as requiring ongoingmanagement and monitoring throughout the project:▪ Dust▪ Sediment/erosion control▪ Earthworks▪ Vegetation3.8 Dust Control- Stripped areas will be kept as small as possible whilstensuring works can progress economically.- Top-soil and seeding will be re-spread to the finished lotsareas as soon as practicable within 3 weeks after finishedearthworks.3.9 Erosion Control- All construction works will be monitored for erosionweekly and following rain event [sic] of 10mm in 12 hourperiod.- Suitable management of overland water by cut off drains,piping and dispersement will eliminate and/or minimiseconcentrated flows from causing erosion.- Earth worked and exposed areas will be stabilised byreinstatement of vegetation as per the resource consent(RM160186).3.10 Sediment, Runoff, Silt Control- Primary, Secondary and Tertiary sediment control will beimplemented in the means of catchment areas controlledby surface drains, hard piping to detention pond forsediment retention before final disposal into either on sitesoakage pits or into existing storm water system. Use of5silt fence will be implemented, locations to be confirmedbased on detailed site assessment of natural surface watermovement. These will be monitored and cleared whenrequired.- The silt catchment strategy revolves around assessment ofexisting over land water flows (or digging cut-off drainswhere required) and constructing settlement ponds atselected location. Silt fences are then placed downstreamof the ponds for final filtering prior to discharge.- Controls to manage potential silt run-off will be in placeprior to earthworks commencing in areas that have thepotential to discharge silt.- Silt controls will be assessed on a monthly basis and afterheavy rainfall (10mm within 12hours) to monitor theireffectiveness, ensure they are cleaned out regularly, andimprove the silt control system as required.3.12 VegetationRevegetation will be implemented as soon as practicable andas the seasons allow after the completion of the works.Vegetation of the disturbed areas will decrease sediment yieldfrom the disturbed areas and is considered the mostappropriate method of preventing on-going sedimentationpost-construction works.Timeline – silt discharge[7] Mr Alexander Todd, a land surveyor employed by Paterson Pitts Group, theproject engineer, gave evidence at trial to the effect that, by May 2017, the earthworkshad been largely completed and the land topsoiled except for some unsealed roadscomprising (approximately) between 2.5 and 3 ha. There were also some sealed roads,but the remainder of the land was unvegetated. Grass seed had been sown in someparts of the subdivision, but it had not struck successfully.[8] The Northlake site experienced heavy rain on 17 July 2017 resulting in adischarge of sediment onto the EDL land. EDL made a complaint to the QLDC.Northlake had earlier informed the QLDC about the discharge:Obviously, this time of year without the proposed grass cover completelyestablished, there is a bit more silt flowing than is ideal, and there are a fewdays of tidy up works in this respect which the guys are onto. In particular,CCL will also install a double line of silt fencing downstream of Outlet Road6and widen the existing silt fence. We are expecting some more rain later in theweek and it is proposed that these minor works will be complete by then.[9] Northlake outlined the difficulties encountered and adjustments made to itssediment controls in a further email to the QLDC on 27 July 2017:Very minor scouring to a section of the batter in eastern most permanentstormwater basin. This was due the fact that we had kept the silt clothes in themud tanks as discussed with Council to limit the ingress of silt into the mudtanks once building construction activity commences in the next few weeks.The silt cloth meant that flows could not get into the mud tank fast enoughand therefore water built up in the roadway and crossed the reserve into thestormwater basin and scoured a batter along the way. I note that this overlandflow path is as per design (in case that particular set of mud tanks do block inthe future) and that the scouring happened because the reserve topsoil has notyet been grassed.The main swale received a layer of silt, particularly at the eastern end, thatneeded to be cleaned out. I note that this isn't an improvement but ratherstandard maintenance that will be on-going.Some minor silt was deposited at the outfall of the main SW pipes under OutletRoad. This indicated that whilst the stormwater was flowing in the correctpaths we could improve the removal of silt along the way. To achieve this wehave restricted the size of the orifice from the stormwater basins by bolting alength of plywood across the face of the outlet pipe leaving the top 100mmopen to the flow. By restricting the orifice size the water will back up in thedetention basins and facilitate the settling out of silts. We have also placedadditional silt fences at strategic locations including the SW outlet point atOutlet Road.[10] In August 2017, the Northlake site experienced further heavy rainfall. On12 and 13 August, there was rainfall of 23.6 mm. No sediment was discharged duringthis time. But, just days later, on 17 and 18 August, there was further rainfall of24.6 mm. It was on this occasion the sediment controls failed and the discharge forwhich Northlake was charged occurred.The charge and statutory provisions[11] The charge was that between 17 and 18 August 2017 at 762 Aubrey Road,Wanaka —Northlake Investments Limited together with Civil Construction Limiteddischarged contaminants (silts and sediments) onto land in circumstanceswhich might have resulted in those contaminants ( or any other contaminantsemanating as a result of natural processes from those contaminants) enteringwater, namely water in the Clutha River, when the discharge was not expressly7allowed by a National Environmental Standard or other regulations, a rule ina Regional Plan as well as a rule in a Proposed Regional Plan for the sameregion (if there is one), or a resource consent.Legislative reference: Sections 15(1)(b), 338(1)(a) and 339 of the ResourceManagement Act 1991 and Section 66 of the Crimes Act 1961.[12] The relevant provisions of the RMA provide as follows:15 Discharge of contaminants into environment(1) No person may discharge any—(a) contaminant or water into water; or(b) contaminant onto or into land in circumstances whichmay result in that contaminant (or any othercontaminant emanating as a result of naturalprocesses from that contaminant) entering water; or338 Offences against this Act(1) Every person commits an offence against this Act whocontravenes, or permits a contravention of, any of thefollowing:(a) Sections 9, 11, 12, 13, 14, and 15 (which imposeduties and restrictions in relation to land, subdivision,the coastal marine area, the beds of certain rivers andlakes, water, and discharges of contaminants):District Court trial[13] Northlake admitted that sediment had discharged from the Northlake site intothe Clutha River. Its defence was grounded in the reasonable steps it took to ensuresediment discharges to water did not occur. Northlake argued it took the reasonableprecautions of a prudent developer to prevent the discharge and the prosecution couldnot prove beyond reasonable doubt that Northlake, acting through its advisers, failedto investigate the possibility of sediment discharge into the Clutha River and takeappropriate preventive measures.[14] Additionally, Northlake was critical of the statutory basis relied upon by theprosecution. A material part of Northlake's defence relied on the appropriate fault8element to be proved, Northlake arguing that if it contributed at all to the discharge itwas a "passive" contributor not an "active" contributor to the cause of the siltdischarge.Judgment under appeal[15] After traversing the evidence at trial the Judge set out the events leading up tothe discharge in August 2017, considering, in that context, the sediment controlmeasures put in place by Northlake. The Judge discussed the elements of s 15 of theRMA and recorded that Northlake was a person within the meaning of the section, thesediment was a contaminant as defined in s 2 of the Resource Management Act, adischarge had occurred, and nothing expressly allowed the discharge to occur. Noneof those elements is contested by Northlake.[16] The Judge addressed Northlake's contention of a peculiarity in the chargingdocuments. Northlake and CCL had been charged as parties under s 66 of the CrimesAct 1961. Northlake took the position it should have been charged as a principalwithin the meaning of s 340 of the RMA.6 The Judge decided it was appropriate forNorthlake to be charged in its own right under s 338 and amended the charge to removethe reference to s 66. This was on the basis Northlake was the developer and hadultimate responsibility for environmental compliance. Northlake's failure to ensure"a fit for purpose SMP was in place throughout the duration of the project was anoperative factor in the chain of causation leading to the discharge ".7[17] Based on Mr Todd's evidence, the Judge concluded between 15 and 20 ha ofland was open, in the sense of being unvegetated. The Judge recorded hisunderstanding that "in some instances top-soiled land might be regarded as no longeropen but it is clear from Northlake's application documents and SMP that theearthworked areas were to be both top-soiled and revegetated so that use of the termopen is accurate".86 Conviction decision, above n 1, at [77]–[79].7 At [72]–[73].8 At [18].9[18] Addressing Northlake's case that the totality of the rainfall events wasunforeseeable, the Judge found no evidence to suggest the rainfall events on 17 and18 August were outside the range within which they could reasonably have beenforeseen and might need to be provided for. The expert witnesses agreed this level ofrainfall was less than a 1.58 Average Recurrence Interval event.9[19] The Judge was ultimately satisfied Northlake had not taken all reasonableprecautions or appropriate preventive measures to prevent the discharge of sedimentfrom the site. In reaching this conclusion, the Judge relied principally upon twofactors:10(a) The need to minimise open areas by topsoiling and revegetating at theconclusion of each stage of the bulk earthworks. The Northlake sitewas almost entirely unvegetated in August 2017.(b) The need to change the SMP from time to time to reflect thecircumstances. Northlake continued to rely on the above measuresduring a wet winter and after sediment discharge had occurred in July2017.Grounds of appeal[20] Mr Pilditch submitted on behalf of Northlake that the charges ought to havebeen brought on the basis of s 340 of the RMA because Northlake's liability wasessentially "vicarious" in nature. Northlake did not contribute to the "physical" eventscharged under s 15, which were entirely the province of CCL. Accordingly, Northlakewas entitled to a finding that both limbs of the statutory defence in s 340 wereestablished.[21] Mr Pilditch further submitted there was an inherent tension in the Judge'sassessment of the evidence. On the one hand, the Judge said, "there is no doubt thatNorthlake took a responsible and structured approach to the project and sought to9 At [30].10 At [67].10avoid environmental problems".11 On the other hand, the Judge found that Northlakehad not taken the precautions of a prudent developer to prevent the discharge ofsediment from the Northlake site and it had not investigated and taken properpreventive measures.[22] Mr Pilditch emphasised the need to assess the actions taken by Northlake inthe context of the information available to it at the time. He submitted the Judgeimposed standards that did not apply at the time, which he said amounted to "anexercise in hindsight". The Judge was said to have misconstrued Northlake'sobligations under the SMP, failed to recognise the relative roles of the parties involvedin the development and failed to consider advice that the earthworks controls wereadequate, including that the SMP had been approved by the QLDC.[23] In particular, Mr Pilditch took issue with the Judge's conclusion Northlake wasobliged to complete the development in stages, that further minimised the area thatwas "open" at any one time and, in relation to closing the land, revegetate in order tomitigate sediment. Mr Pilditch said these were controls designed to mitigate dust, notsediment. Northlake's application for resource consent said the earthworks would bestaged to minimise the area that was "open" at any one time but defined "open" as"stripped of turf and topsoil". Mr Pilditch said the Judge conflated the topsoiling andre-seeding of each stage with the need to vegetate the entire site after the completionof the works.[24] Mr Pilditch also emphasised that Northlake relied on its contractor to designand carry out the sediment controls. He stressed CCL was a reputable and experiencedcontractor, not the cheapest in the area. This case was dissimilar to McKnight v NZBiogas Industries Ltd, where the appellant had caused environmental damage byskimping on its responsibilities.12 Mr Pilditch referred to weekly meetings Northlakeheld with the contractor to discuss the status of environmental controls.11 Conviction decision, above n 1, at [67].12 McKnight v NZ Biogas Industries Ltd [1994] 2 NZLR 664 (CA).11Approach on appeal[25] To succeed on appeal, Northlake must establish that the Judge erred in hisassessment of the evidence to such an extent that a miscarriage of justice has occurred,or that a miscarriage of justice has occurred for any other reason.13 A miscarriage ofjustice is an error, irregularity, or occurrence that created a real risk that the outcomeof the trial was affected, or that resulted in an unfair trial or a trial that was a nullity.14A "real risk" is where "there is a reasonable possibility that a not guilty (or morefavourable) verdict might have been delivered if nothing had gone wrong".15[26] In Sena v Police, the Supreme Court explained that a challenge to a trial judge'sassessment of the evidence is an appeal by way of rehearing conducted on the basis ofthe principles established in Austin, Nichols & Co Inc v Stichting Lodestar.16 Thatmeans the appellate court must reach its own view on the evidence, although theburden remains on the appellant to demonstrate that the trial judge erred in his or herassessment. Appropriate weight must be given to advantages the trial judge wouldhave had in assessing matters such as credibility.17DiscussionFormulation of the charge[27] In the end, the formulation of the charge has little bearing on the outcome ofthis appeal because at trial Northlake ran the defence that it took all reasonable care.[28] Sections 340 and 341 provide:340 Liability of principal for acts of agents(1) Where an offence is committed against this Act—(a) by any person acting as the agent (including anycontractor) or employee of another person, that otherperson shall, without prejudice to the liability of thefirst-mentioned person, be liable under this Act in the13 Criminal Procedure Act 2011, s 232(2).14 Section 232(4).15 R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [110].16 Sena v Police [2019] NZSC 55 at [32]; and Austin, Nichols & Co Inc v Stichting Lodestar [2007]NZSC 103, [2008] 2 NZLR 141.17 Green v Green [2016] NZCA 486, [2017] 2 NZLR 321 at [29]–[31].12same manner and to the same extent as if he, she, orit had personally committed the offence; or341 Strict liability and defences(1) In any prosecution for an offence of contravening orpermitting a contravention of any of sections 9, 11, 12, 13, 14,and 15, it is not necessary to prove that the defendant intendedto commit the offence.[29] The terms of the defence for a defendant actually discharging material ins 340(1) are little different from those identified by the Court of Appeal in McKnightv NZ Biogas Industries Ltd as to when a person may be liable as a contributor to thecausal events leading to a discharge:18We find no straining of language in saying that a person allows a contaminantto escape who fails to take the precautions that a reasonably prudent person inthe position would take to prevent that escape. The element of awareness inthe concept of allowing is broader than that adverted to in the Courts below.It is sufficient if there is awareness of facts from which a reasonable personwould recognise that escape could occur. In that case, failure to investigateand take appropriate preventive steps would amount to allowing an escapeshould it subsequently occur.[30] A person, other than a person who actually (i.e physically) causes a discharge,may also cause a discharge through acts or omissions that indirectly contribute to thatdischarge. This is captured by the language of s 340. No miscarriage arises from thefact that Northlake was treated as though it "personally committed" the offence ofdischarging sediment into the Clutha River.19 Ultimately, the appeal turns on theJudge's evaluation of the evidence as to the steps Northlake took to prevent a dischargeand the sufficiency of those steps, not the formulation of the charge.The need for revegetation and staging[31] As I have noted, the appellant is critical of a pivotal finding that the land inissue was 'open' unless under replaced vegetation. Any assessment of reasonablenesstherefore, on the appellant's case, had to engage with Northlake's SMP and the related18 McKnight v NZ Biogas Industries Ltd [1994] 2 NZLR 664 (CA) at 672.19 Resource Management Act 1991, s 340(1)(a).13resource consent documentation. The Judge placed considerable focus on certainaspects namely the staging of earthworks, the minimisation of open areas and therevegetation of the site. These features are not identified under the heading "Sediment,Runoff, Silt Control" in the SMP to which the Judge did not refer in the judgmentunder appeal.[32] Under this heading, Northlake described the use of catchment areas withsurface drains and hard piping, settlement ponds and silt fences. These controls wereto be reassessed on a monthly basis and after heavy rainfall to monitor theireffectiveness. There was evidence such monitoring was in fact carried out. Northlakeproduced minutes from its meeting and correspondence with the QLDC following theheavy rain in July 2017. This lead to the implementation of further sediment controls,including the construction of another silt fence on the EDL land.[33] Furthermore, the weight placed by the Judge on revegetation appears to havebeen misplaced. The apparent assumptions that the SMP required Northlake torevegetate the site in stages or that the SMP ought to have required this arequestionable. The SMP only required revegetation to be completed "as soon aspracticable and as the seasons allow after the completion of the works". It is doubtfulrevegetation could have been completed during the winter months leading up toAugust 2017.[34] On a strict construction of both the consent and SMP in relation to theobligations as to, and the meaning of, 'open' land it is arguable that the appellant couldsay that land covered in topsoil without grassing or other vegetation was not 'open'.But even if the point is resolved in line with the appellant's case that does not in itselfgive rise to an error of fact leading to a miscarriage of justice. At best of the severalpoints made by the Judge in the passage immediately below one may have been put indoubt:[27] Accordingly, the situation in respect of the silt/sediment controls onthe Property as at the end of July 2017 was that:• The subdivision works area of somewhere in the range 15-20 ha was open(in the sense of being unvegetated) and had been open for a period of twoto three months or so, notwithstanding the clear recognition in resource14consent documents that the area of open land had to be minimised andvegetation established as part of staged subdivision works;• The weather had been particularly wet during July;• Ground conditions in the works area were accordingly wet;• There had been a discharge of silt and sediment laden stormwater fromthe Property into the flowpath on the adjoining EDL land;• Some amendments to the SMP had been put in place.[35] The Judge's pivotal finding20 has not been materially disturbed by theappellant's exacting submissions as to the evidence.[36] In relation to whether it was reasonable to require vegetation, Mr MarcBretherton, the development manager for Northlake, gave the following evidence:The site gets locked down to a degree through winter in that the, you know,the necessary controls are put in place. Those areas that can be topsoiled arebecause topsoil is a, whether or not there's grass. I mean it's desirable to havea strike of grass, the sort of grass on topsoiled areas but topsoil doesn't erodeto the same degree that glacial till does, so where there's topsoil placed on asite, I'm not saying that it doesn't produce sediment because it does produce adegree of sediment and needs to be managed, but it doesn't mobilise to thesame degree, anywhere near the same degree as glacial till does. So in someways, well, not in some ways. The fact is, and [Mr Todd] will be able toconfirm this if asked I suspect, topsoiling of a site is generally regarded by acontractor by the engineers by the Council as a suitable way in which to leavethe site through a wet period but a strike of grass is certainly desirable.[37] In his response to questions from the Court, Mr Todd confirmed it is commonpractice to leave a site covered by topsoil without grass cover over the winter period:Q So what we've got in August 2017 is a situation where that site,somewhere in the order of 15 hectares give or take, is open and hasbeen open for a period possibly since May? So it's been open for threemonths.A I just want to be clear on what you mean by open. So no grass cover,then you–Q No grass cover. Covered by topsoil and/or some glacial soils.A Correct.Q The bulk of it topsoil?20 At [75].15A Correct.Q And we're going into winter?A That's common practice because generally what you'd try and do isget your bulk earthworks done over your summer months. You leaveyour road corridors open because during the winter months, you'regetting your pipes done. So you're excavating that roading corridorand laying pipe so as that come September, your pipes are laid in themiddle of the road, because that's where they generally live, andyou're placing pavement layers in order to then beat sealing season.[38] The Judge referred to this passage as confirmation unvegetated land could beconsidered "open".21 I accept some ambiguity may have arisen here. Mr Todd mayhave been confirming what the Judge meant by the word "open" for the purpose ofanswering his question accurately in terms of the condition of the land in August 2017.Mr Todd was not necessarily accepting that land covered by topsoil was open.[39] In re-examination, Mr Pilditch asked Mr Todd to explain why he qualified hisearlier answers regarding when land would be considered "open". Mr Todd explained:For me it goes back to Council's, QLDC's lack of documentation on this issue.They have, to the best of my knowledge, up until, well, even until today, theyaccept that a topsoiled site is considered stable. If we refer to GDO5, which isAuckland Regional Council's replacement to TP90, as I have done in recentdays, we find that they consider a grass sward of less than 80% coverage tonot yet be stable. So that's why I lingered on that issue. I believed that at thetime that if we were topsoiled, because it's a far less erodible material than thetills, we were considered stable.[40] This remark is the source of Mr Pilditch's submission the Judge applied astandard to Northlake in hindsight. In essence, Northlake says it could not have knownthe Council would consider topsoil alone to be insufficient to stabilise the land andprevent the discharge of sediment from the site. It is arguable that a prudent developercould rely on this fact, so long as it accorded with the expert opinion of the developer'sadvisors. However, as I have noted above, the question of what should reasonablyhave been done to prevent the silt deposits in issue must be determined on the totalityof the evidence.21 Conviction decision, above n 1, at [19].16The July 2017 discharge[41] Irrespective of any failure to revegetate, the Judge said Northlake was put onnotice of the inadequacy of its SMP by the events in May and July 2017. This matterwas not the focus of Mr Pilditch's submissions but, in my view, it was equallyimportant to the Judge's conclusion that Northlake did not take the reasonableprecautions of a prudent developer. In particular, the discharge in July 2017demonstrated there were issues with the sediment controls.[42] In cross-examination, Mr Garry Dent, Northlake's expert witness on waterresources engineering, made the following concession:Q It's relatively uncommon isn't it under TP90 and industry practise forstorm water, ah for sediment retention systems to install sedimentfences within the flow of a sediment channel essentially isn't it? It'snot recommended practice is it?A It's putting it at the end, I mean that, I think that, it is something youmight do, but you wouldn't normally have that within the site, wellyou'd usually try and – this is trying to remove the bulk of thesediment within the site but in a sedimentation pond or somethingfrom other means, so this was obviously intended as a, as a backupmeasure.Q It's not ideal is it?A No.Q A silt fence is never going to do, is never going to be as effective as asediment pond is it?A Ah generally not no.Q So as an expert in your field, if you see sediment fences at the end ofa system on someone else's land, it would be an indication thatsomething's going wrong wouldn't it?A No, it would be, yeah it would indicate that there was a problemupstream, yeah.Q And if something needed to happen on the site to better treat thesediment that would be your conclusion wouldn't it?A Yes, that would be correct, yep.[43] Mr Dent also accepted it would be prudent to design a sediment control systemto accommodate a rainfall event of the kind that occurred on 17 and 18 August 2017:17Q Mr Dent, this rainfall event on the 17th and 18th of August 2017 wasnot particularly in itself severe, was it?A No. No, I agree with Mohssen on that, in that regard, yep, (inaudible12:21:37).Q And at paragraph 11 do you agree with his claims there that in the past34 months the event was exceeded at least 13 times?A I would, yeah, (inaudible 12:21:50) that. Yes, that's correct.Q And it's not uncommon is it, for rainfall events to –A – excuse me, sorry, the difference would be the event on a singleperiod of one or two or three days, yes, but the (inaudible 12:22:11)conditions are not typical of the previous 18 months.Q And we need to talk about that, but thank you, that's what I was aboutto do. The context to that is that it's not uncommon for rainfall eventsto occur at the same site within a matter of days, is it?A No, it can happen.Q Sometimes it happens in the same place within four or five days ofeach other, doesn't it?A It can happen, yes, obviously does, yeah.Q Well not only "can happen" but it's not uncommon, is it?A Well depends what "uncommon" mean, but the events that we've beentalking about, and what Mr Mohssen referred to, they're clearly, youknow, that might happen three or four times in a two-year period, yep.Q And so if you're designing –A – it might happen –Q – a sediment retention system, you would make an assumption thatthere might be during the period of the project consecutive rainfallevents, wouldn't you?A Um, the expectation of a – yeah, you would design, you'd design fora hydrograph which for a two-year event. For instance I looked at atwo-year event and the one-hour rainfall for that was of the order ofabout 11 millimetres – a 30-minute rainfall was 11 millimetres perhour, so you would design it and the total volume of rainfall would begreater, that would be part of the design process, that's correct. Inother words, the rainfall totals for each event.Q Yes. Would you accept that it would be poor practice to design and/oroperate a sediment retention system on a presumption that it might notrain within five days of each event?A Um, yes, yeah, mhm.18Q And indeed the more it rains and the wetter it gets, the more attentionneeds to be given to a sediment retention system, isn't it?A Within the – within – it could based on the design perimeter which isnormally accepted of a two-year event, that's what you're designingfor. You would not expect to have two two-year events successivelyin the space of three or four days obviously.Q But it could happen, couldn't it?A No, the probability of that happening is very low.Q Well it happened here, didn't it?A No. Yeah, there were two successive events but they weren't two-yearaverage rain retainable events, in two days.Q Yes, they were less than two years ARI, weren't they?A They were, they were less than that, yes. Yep.Q And that two-year ARI perimeter features within the Bulk Earthworks20 Guideline Auckland Regional Council TP90, doesn't it?A Yes, I believe so, yep. So there's a number of designs now, that's thetypical one and there has been changes and we've been dealing withGD05 recently and that has slightly different, but yes at the time it wasprobably TP90, yep.[44] It appears from this evidence that expert opinion supported the need to preparefor two successive rainfall events of the scale that occurred in August 2017.Accordingly, a prudent developer would devise a SMP requiring sediment controls toprovide this level of protection. Mr Dent's evidence about the "backup" nature of thesilt fences constructed in July 2017 suggests Northlake's sediment controls wereinadequate to prevent one heavy rainfall event, let alone two successive events.[45] Although the QLDC did not provide guidance on the level of rainfall for whicha developer must prepare, this does not mean the Judge imposed a retrospectivestandard by entering a conviction. Section 15 of the RMA is an independent obligationon a developer over and above any rules or guidance provided by a local council.Ultimately, the developer's obligation as consent holder is not to discharge anycontaminant into water. To avoid causing a discharge, a developer must take allreasonable precautions as a prudent developer. The fact alone that a developer reliedon its contractors to make relevant decisions does not alter that obligation. In thiscase, as Mr Laws pointed out, the appellant, through its manager, was engaged with19the contractors on the central question of silt control and the site problems in thatregard.[46] It was therefore open to the Judge to conclude the SMP was not adequatelyupdated and that Northlake failed to take all reasonable steps to prevent the discharge.[47] Mr Pilditch submitted it was "illogical" to suppose the discharge within a fewmetres of the Northlake site boundary in July 2017 should have alerted Northlake toan impending discharge to the Clutha River over 1 km away. As I have said, it is notso much about whether Northlake should have been alerted, but what this occurrencecould be taken to suggest about the state of the sediment controls in place at the time.As Mr Dent accepted, the further controls implemented afterwards amounted to"backup measures" and would do little to compensate for an inadequacy in the primarycontrol system. I do not consider the connection between the July 2017 discharge andthe August 2017 discharge to be illogical. Although the scale of the discharge inAugust was more serious, so were the not unforeseeable weather conditions. The July2017 discharge was reasonably to be seen as evidence of the underlying weakness ofthe sediment control system and the susceptibility of the systems that were in place toan event of the kind that occurred on 17 and 18 August.[48] It is the failure of Northlake to insist on a stronger sediment control system, inaccordance with the expectations of expert opinion at the time (albeit Northlake saysit was not informed of this by its own expert), that prevents Northlake fromdemonstrating that a miscarriage of justice has occurred.Sentence appeal[49] Northlake objects to the starting point adopted by the Judge of $50,000. Astarting point of $40,000 was adopted for CCL. The Judge said Northlake had agreater level of culpability because it was the developer and ultimately the oneresponsible for environmental protection. Mr Pilditch submitted this was in error andNorthlake's culpability should have been less than (or at least equal to) CCL becausethe contractual arrangements explicitly recognised CCL's role in designing andimplementing the SMP.20[50] This submission was very much premised on the assumption Northlake wasonly vicariously responsible for the discharge. As I have already explained, it wasappropriate for the Judge to proceed on the basis Northlake was responsible as aprimary offender. It failed to ensure an adequate level of protection was in place andthat was ultimately its responsibility. A small disparity between the two sentences wastherefore acceptable.[51] In the end, the fine of $42,500 was not manifestly excessive.22Result[52] The appeals against conviction and sentence are dismissed._____________________________Karen Clark JSolicitors:Justine Hollows, Winton Group, Auckland for AppellantRoss Dowling Marquet Griffin, Dunedin for Respondent22 Criminal Procedure Act 2011, s 250(2); and Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR482 at [29] and [35].