Waikato Regional Council v Ross (des) Britten Ltd Ross Desmond Britten
| Jurisdiction | New Zealand |
| Judgment Date | 09 January 2012 |
| Date | 09 January 2012 |
| Docket Number | CRI-2009-02400572 |
| Court | District Court |
CRI-2009-02400572
IN THE DISTRICT COURT AT HAMILTON
Prosecution for unlawful discharge of contaminants — defendant unlawfully buried thousands of tyres on his property — abatement notice issued by council in 2003 — evidence of tyres stored on property over six months prior to informations being laid — informations covered fifteen month period — whether informations had been within six months of time when contravention giving rise to information first became known or should have become known to council as required by s338(4) Resource Management Act 1991 (“RMA”) (offences against the RMA) — whether informations for continuous offending could not allege offending that occurred over six months prior to date of information — whether tyres were proved to be contaminants — whether charges were unacceptably vague by as to when tyres had been buried.
MsS Cameron for the Informant
Mr A Webb for the Defendant
DECISION
Mr& Mrs Britten own a rural property comprising about 61 hectares at Naike, west of Huntly. 1 Mr Britten is the sole director of Ross (Des) Britten Limited (“ the company”) and the majority shareholder in that company is Mrs Britten 2. Between April 2003 and July 2009 the company was engaged by Bridgestone New Zealand to collect tyres from their Auckland stores. The company then disposed of the tyres
Mr Britten has been charged with one charge of breaching the abatement notice and six charges of unlawfully discharging contaminants (waste tyres) into land in circumstances where they may enter water, contrary to the provisions of the Resource Management Act 1991 (“the RMA”). Five of the charges alleging an unlawful discharge of contaminants relate to the five discrete locations where tyres were found at the property, and the sixth is a representative charge laid as an alternative to the five specific charges. The company has been charged with permitting the above offences. Both defendants deny the charges.
There are two broad issues I need to resolve:
-
(a) Whether the informations were laid out of time and are therefore a nullity; and if they are not
-
(b) Whether the Council has been able to prove each element of the charges beyond reasonable doubt
Mr Webb also submitted that there is also an issue about the “type” of offending alleged, namely whether it is continuous, one-off offending, or whether the charges are representative. This particular aspect relates to the nature of the offending itself rather than the fact of it, but it is also relevant to the nullity argument.
The time for laying informations under the RMA is set out in s338(4) which states (with emphasis added):
Notwithstanding anything in the Summary Proceedings Act 1957, any information in respect of any offence under ss(1), 1(1 A) or 1(B)] of this section may be laid by any person at any time within six months after the time when the contravention giving rise to the information first became known, or should have become known, to the local authority or consent authority.
This wording is different from the wording which appears in the Summary Proceedings Act 1957 (“ the SPA”) where, in relation to the time for laying an information, sl4 states (with emphasis added):
Except where some other period of limitation is provided by the Act creating the offence or by any other Act, every information for an offence (other than an offence which may be dealt with summarily under s6 of this Act) shall be laid within six months from the time when the matter of the information arose.
In summary, therefore, the SPA commences the six month period for laying the information from the time when “the matter of the information arose” whereas the RMA fixes the time from when the “alleged contravention first became known, or should have become known” I agree that this is essentially a question of fact, and that the words of section 338(4) deal with both actual knowledge and constructive knowledge of the contravention giving rise to the information.
Section 338(4) has been judicially considered in a number of cases:
(a) In R v Kiwi Welldrilling Co Ltd (No 5) 4 the Court said:
Often when it comes to what “should have been known” the connotation is of the authority being unable to overlook what, looking at the context in which it can reasonably function and operate, it cannot justify having missed. 5
(b) The above case was referred to in Auckland Regional Council v Auckland City Council 6. There the Court stated, when confirming that the informations in that case should be struck out:
I am not prepared to accept that $338(4) allows a potential prosecuting authority to virtually sit back and wait for evidence to eventuate in a more or less haphazard fashion. The responsibility, once the contravention has been established, is on the potential prosecuting authority to investigate with vigour in order to identify the potential offender.
These cases simply highlight the factual nature of the enquiry which the Court must undertake.
The informations in this case were laid by the informant on 16 June 2009 and the time-frame for the alleged offending is between 11 February 2008 and 5 May 2009, namely a 15 month period. There is no disagreement that the informant gained actual knowledge of the burial of tyres on the property on 11 February 2009, but the defendants contended that the informant had constructive knowledgeof this on 18 July 2008 when Mr Maw, an officer from the Franklin District Council (“ the FDC”), contacted it with information regarding tyres being stockpiled on top of the land at the property, with the consequence that the latest the informations could have been laid was January 2009. In response, the informant contended that the earliest it had constructive knowledge of the offending was 18 December 2008 when it received a complaint from a member of the public, but even then they submitted that this was not sufficient to constitute knowledge of the contravention giving rise to the informations. If the Court accepts the date of 18 December 2008, however, the informations have still been laid within time, subject to an argument the defendants raised about how much of the offending of a continuous nature was able to be considered. I will return to this argument shortly.
Whilst the debate between counsel focused on the dates of 18 July 2008 and 18 December 2008, it was clear that before 2008 the activities at the property had attracted the involvement by both the FDC in relation to land use, and the
Waikato Regional Council (“ WRC”) in relation to the potential for discharges of contaminants to water. There is a quarry on part of the site that does not concern the subject matter of this prosecution, but explains in part the involvement of the FDCThe evidence establishes that Mr Keep, a WRC staff member, had from time to time been monitoring activities at the property since about 2000.
On 3 September 2003 the Council issued two abatement notices against Mr Britten:
-
(a) One abatement notice required Mr Britten to remove the tyres that had “been placed for the purpose of conveying water and subsequently covered in soil” (this was referred to as “the excavation notice” even though it is in fact still an abatement notice); and
-
(b) The other abatement notice sought to prevent any further tyres being brought onto the property for burial or placement in waterways or on land that may be subject to flooding or stoimwater flows (this was referred to as “the abatement notice”) 7
These abatement notices appear to be the Council's response to unauthorised activities undertaken at the property between 2000 and 2003. Importantly, the reasons both notices were described to be related to the “burial of waste tyres and/or parts of waste tyres onto or into land in circumstances which may result in contaminants (primarily zinc and polycylic aromatic hydrocarbons) entering water…” 8
On 3 September 2003 the informant also issued Mr Britten with a resource consent to retrospectively authorise earthworks that had been undertaken at four locations (within 10 metres of the banks of the Mangapiko Stream) at the property, but it did not authorise any new earthworks.
Both abatement notices were appealed by Mr Britten to the Environment Court, but by memorandum dated 27 March 2004 9 it was agreed that the appeals be resolved on the basis that the excavation notice was cancelled, but the abatement notice was to remain in force. This is the abatement notice upon which two of the charges in this Court rely.
Mr Webb's cross-examination established that a number of complaints about the activities at the property were received by both the FDC and the WRC between 2004 and 2006. 10 I accept Mr Blackie's evidence that these complaints were of a general rather than specific nature.
On 11 July 2008 Mr Maw, (from the FDC) emailed Mr Keep (from the WRC) about a visit Mr Maw had made to the property the day before. 11 The email stated:
When I was up at Naike yesterday I paid a visit to Ross Britten's property. We had received information that he was bringing tyres onto the property...
To continue reading
Request your trial