Northlake Investments Ltd v Otago Regional Council
| Jurisdiction | New Zealand |
| Judge | Brown J |
| Judgment Date | 12 April 2022 |
| Neutral Citation | [2022] NZCA 129 |
| Docket Number | CA331/2020 |
| Court | Court of Appeal |
[2022] NZCA 129
Court: Cooper, Brown and Goddard JJ
CA331/2020
IN THE COURT OF APPEAL OF NEW ZEALAND
I TE KŌTI PĪRA O AOTEAROA
Criminal Evidence — appeal against a pre-trial ruling that certain evidence could be used in an upcoming trial — making intimate visual recording — the complainant located the SD card and handed it to police — theft — the appellant's right to privacy — unfairly or improperly obtained evidence — unlawful search — balancing exercise — Crimes Act 1961 — Evidence Act 2006 — Search and Surveillance Act 2012
A F Pilditch QC for Appellant
L J Taylor QC and N M Laws for Respondent
The appeal is dismissed.
(Given by Brown J)
Substantial earthworks on the appellant's (Northlake's) subdivision development near Wanaka had been largely completed, with most of the land topsoiled but unvegetated, when heavy rainfall on 17 and 18 August 2017 caused flooding at the site. Sediment escaped, eventually reaching the Clutha River more than a kilometre away.
Northlake was charged under the Resource Management Act 1991 (the RMA) with discharging contaminants onto land in circumstances which might have resulted in their entering water, namely the Clutha River. Northlake was convicted in the District Court 1 and its appeal to the High Court was dismissed. 2 It appeals pursuant to leave granted by this Court. 3 The focus of Northlake's argument concerns the liability under the RMA of a developer who contracts out construction works and relies on expert advice.
The purpose of the RMA is to promote the sustainable management of natural and physical resources. 4 Among the duties and restrictions in pt 3 of the Act, s 15 relevantly provides:
15 Discharge of contaminants into environment
(1) No person may discharge any-
…
(b) contaminant onto or into land in circumstances which may result in that contaminant (or any other contaminant emanating as a result of natural processes from that contaminant) entering water; or
…
unless the discharge is expressly allowed by a national environmental standard or other regulations, a rule in a regional plan as well as a rule in a proposed regional plan for the same region (if there is one), or a resource consent.
The RMA definition of the verb “discharge” includes to emit, deposit or allow to escape. 5 As this Court explained in McKnight v NZ Biogas Industries Ltd, the extension of the definition of discharge to allowing escape suggests something broader
We find no straining of language in saying that a person allows a contaminant to escape who fails to take the precautions that a reasonable prudent person in the position would take to prevent that escape.
A contravention of s 15 of the RMA is rendered an offence by virtue of s 338 which relevantly provides:
338 Offence against this Act
(1) Every person commits an offence against this Act who contravenes, or permits a contravention of, any of the following:
(a) sections 9, 11, 12, 13, 14 and 15 (which impose duties and restrictions in relation to land, subdivision, the coastal marine area, the beds of certain rivers and lakes, water, and discharges of contaminants):
…
With reference to proof of a contravention of s 15, s 341 provides:
341 Strict liability and defences
(1) In any prosecution for an offence of contravening or permitting a contravention of any of sections 9, 11, 12, 13, 14, and 15, it is not necessary to prove that the defendant intended to commit the offence.
(2) Subject to subsection (3), it is a defence to prosecution of the kind referred to in subsection (1), if the defendant proves-
(a) that-
(i) the action or event to which the prosecution relates was necessary for the purposes of saving or protecting life or health, or preventing serious damage to property or avoiding an actual or likely adverse effect on the environment; and
(ii) the conduct of the defendant was reasonable in the circumstances; and
(iii) the effects of the action or event were adequately mitigated or remedied by the defendant after it occurred; or
(b) that the action or event to which the prosecution relates was due to an event beyond the control of the defendant, including natural disaster, mechanical failure, or sabotage, and in each case-
(i) the action or event could not reasonably have been foreseen or been provided against by the defendant; and
(ii) the effects of the action or event were adequately mitigated or remedied by the defendant after it occurred.
(3) Except with the leave of the court, subsection (2) does not apply unless, within 7 days after the service of the summons or within such further time as the court may allow, the defendant delivers to the prosecutor a written notice-
(a) stating that he or she intends to rely on subsection (2); and
(b) specifying the facts that support his or her reliance on subsection (2).
In the course of its analysis of these provisions, this Court in Biogas observed: 8
Section 15(1) contemplates discharge by a person. The definition extends the meaning to include emit and allow to escape. The former suggests that it therefore encompasses the consequence of activities carried out by a person - it would be absurd to suggest that it is confined to such contaminants as are personally emitted. Moreover the extension to allowing escape suggests something broader than direct action by the person.
The discharging to which the section relates must also extend to activities to which the statutory defences can have application. They extend to events giving rise to discharge beyond the control of the defendant including natural disaster, mechanical failure and sabotage and which could not reasonably have been foreseen or been provided against.
A person may discharge contaminant within s 15(1) though not intending to do so. That follows from s 341(1) which says that it is not necessary for intention to be proved. Any requirement that the person foresee, or be aware of, the discharge would not be consistent with the available defences. It is difficult therefore to see room for any mental element in the act of discharge.
Plainly however a person could not be said to discharge the contaminant unless there is a causal connection between the person and the discharge.
Even this causative element, however, is to be considered in light of the statutory defence available of proof that the offence was due to an event beyond the control of the defendant that could not reasonably have been foreseen or been provided against.
The Court referred to Lord Wilberforce's discussion of the term “causes” in Alphacell Ltd v Woodward 9
In my opinion, “causing” here must be given a common sense meaning and I deprecate the introduction of refinements, such as causa causans, effective cause or novus actus. There may be difficulties where acts of third persons or natural forces are concerned but I find the present case comparatively simple. The appellants abstract water, pass it through their works where it becomes polluted, conduct it to a settling tank communicating directly with the stream, into which the polluted water will inevitably overflow if the level rises over the overflow point. They plan, however, to recycle the water by pumping it back from the settling tank into their works: if the pumps work properly this will happen and the level in the tank will remain below the overflow point. It did not happen on the relevant occasion due to some failure in the pumps.
In my opinion, this is a clear case of causing the polluted water to enter the stream. The whole complex operation which might lead to this result was an operation deliberately conducted by the appellants and I fail to see how a defect in one stage of it, even if we must assume that this happened without their negligence, can enable them to say they did not cause the pollution. In my opinion, complication of this case by infusion of the concept of mens rea, and its exceptions, is unnecessary and undesirable.
With reference to that analysis this Court in Biogas concluded: 10
It is difficult to postulate a causative link between the person and the discharge appropriate for s 15(1) any different from that. This means that because of its context the word discharge is to be construed as extending to cause to discharge. That accords with the natural and ordinary meaning of discharge as engaging in an activity which results in the emission or discharge of contaminant. It is consistent with the policy of the provisions to prevent contamination of waterways.
Notwithstanding the fact that Northlake was charged directly with contravention of s 15 under s 338, its appeal focuses to a significant degree on another section, namely s 340, which addresses the liability of principals for the acts of agents:
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 any contractor) or employee of another person, that other person shall, without prejudice to the liability of the first-mentioned person, be liable under this Act in the same manner and to the
same extent as if he, she, or it had personally committed the offence; or…
(2) Despite anything in subsection (1), if proceedings are brought under that subsection, it is a good defence if-
(a) the defendant proves,-
…
(ii) in the case of a person other than a natural person,-
(A) that neither the directors (if any) nor any person involved in the management of the defendant knew, or could reasonably be expected to have known, that the offence was to be or was being committed; or
...
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