Auckland Council v Gx Developers Ltd DC Ak

• Jurisdiction: New Zealand
• Judge: R G Whiting
• Judgment Date: 23 April 2012
• Court: District Court
• Docket Number: CRI-2011-1004-019454
• Date: 23 April 2012

Auckland Council

Informant

and

Gx Developers Limited

Defendant

CRI-2011-1004-019454

IN THE DISTRICT COURT AT AUCKLAND

Sentencing following guilty pleas on 15 charges of breaching erosion and sediment control conditions on earthworks consents and breaching abatement notices — significant amount of sediment entered water way which discharged into creek which was noted in plan as significant — offending over lengthy period — whether starting point of $65,000 reflected culpability and was consistent with other sentencing in similar cases

Appearances:

D Sadlier for the Informant

J Goodyer for the Defendant

NOTES OF JUDGE R G Whiting ON SENTENCING

Introduction

1 GX Developers Limited has pleaded guilty to 15 charges laid under the Resource Management Act 1991. The three directors of the company are here in Court today representing the company and two of them, I understand, have flown all the way from China particularly for this occasion. I thank the directors for their courtesy in coming. I think this reflects the remorse and the manner in which they have constructively co-operated with the Council since the laying of these informations.

2 I have received written submissions from both counsel; counsel for the Council, and counsel for the defendant company. Both counsel have addressed the major points in those written submissions in Court today and I thank counsel for their industry in the preparing of their submissions, and also for both counsel, in the fairness and responsible approach towards this matter. It is, indeed, quite refreshing to see it.

Background

3 The offences arise from work being carried out by the defendant company on a subdivision site owned by it at 14 Exeter Place, Avondale. The works included drainage and earthworks and it was undertaken from December 2010 to March 2011. The defendant had obtained regional earthwork consents to carry out the works which were subject to conditions relating to, amongst other things, erosion and sediment control measures.

4 The 15 charges relate to:

• (a) Discharging sediment laden water onto land where it entered water;

• (b) Carrying out earthworks with incorrectly installed erosion and sediment controls, and with unstable areas of earth;

• (c) Contravening an abatement notice by continuing to work on the site; and

• (d) Contravening another abatement notice by having unstable exposed areas on the site.

5 The facts upon which the charges are based are relatively straightforward and are not in dispute. An agreed Summary of Facts, dated 2 February 2012, has been lodged with the Court. This Summary sets out, in some detail, the factual basis for the charges. I do not propose to set it out word for word. Between 2 December 2010 and 7 April 2011 an officer and a consultant of the informant Council, together and/or separately, undertook a number of site inspections and found breaches of the resource consent. These breaches included:

• (a) At times during that period no sediment and erosion controls at all for certain areas of the earthworks;

• (b) At times inadequate or incorrectly installed sediment and erosion controls;

• (c) Some areas of unstable exposed soils; and

• (d) On six occasions, discharges of untreated water to a stream situated on the property.

6 The informant sent inspection reports to a Mr Billy Chen, a director of the company, after each inspection. Mr Chen was project managing the site for the company. Two abatement notices were issued to the company on 4 March 2011. One notice required that the company cease all works on site, except those required in order to comply with the abatement notice, and any subsequent abatement notice until compliance with certain conditions. The other notice required stabilisation of all areas exposed by earthwork, installations of a temporary flume, backfill around the storm-water manhole, submission of a revised erosion and sediment control plan for approval by the Council, and full implementation of the revised erosion and sediment control plan. A revised erosion and sediment control plan was received from the defendant on 8 March 2011.

7 The Council's representatives undertook several site inspections between 2 December 2010 and 7 April 2011. These uncovered significant breaches of the defendant's earthworks consent. The conditions of consent are designed to prevent the discharge of untreated water into the region's waterways. On six occasions they found significant discharges of untreated water into the stream on the property, which eventually flows into the Whau Creek.

8 For the defendant company, Ms Goodyer fully acknowledged the offending as described in the Statement of Facts. She explained that the company through its three directors, all of whom are Chinese nationals, engaged who they thought were appropriately qualified consultants to manage the drainage and earthworks project and carry out the work. The consultants engaged were also Chinese nationals. A consultant engineer had been engaged to manage the site but at the eleventh hour, in January 2011, he was unable to do so and withdrew at short notice.

9 One of the company's directors, Mr Billy Chen, who had experience in property development but not earthworks for land subdivision, stepped into the breach. While Mr Chen speaks English I am told his speech can be difficult to understand and his verbal and written comprehension levels means he tended, or can tend, to misinterpret many of the details of communication. This, J am...