Waikato Regional Council v Ross (des) Britten Ltd Ross Desmond Britten

 
FREE EXCERPT

IN THE DISTRICT COURT AT HAMILTON

CRI-2009-02400572

Waikato Regional Council
Informant
and
Ross (des) Britten Ltd Ross Desmond Britten
Defendants
Counsel:

MsS Cameron for the Informant

Mr A Webb for the Defendant

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.

The issues were: (1) whether the informations had been laid out of time and were a nullity as they had not been laid within six months of time when the contravention giving rise to the information first became known or should have become known to the council; (2) whether the informations for continuous offending could only allege offending that occurred within the six months prior to date of the information; (3) whether the tyres were proved to be contaminants; and (4) whether the charges were unacceptably vague as to when the tyres had been buried.

Held: (1) Section 338(4) Resource Management Act 1991 (“RMA”) (offences against the RMA) set out that the time in which informations had to be laid was within six months of when the contravention giving rise to the information became, or should have become, known to WRC. This necessitated a factual inquiry.

WRC had actual knowledge of the offending within the six month time frame after receiving a complaint about the activities at the property and its subsequent excavations on the property uncovered the buried tyres. An officer from the Franklin District Council (“FDC”) had visited the property prior to the six month time frame and sent an email with his findings to WRC and it was submitted that WRC therefore had constructive knowledge of the offending from that time (which meant the informations were laid out of time). There was no evidence that photographs taken by the FDC officer had been provided to WRC at the time.

The time did not necessarily run from receipt by an officer of an allegation of an offence ( Russell v Wirihana). Case law such as ACC v Watts had established that constructive knowledge required more than just suspicion that offending might be occurring and required some factual basis. The informations were laid within time — mere suspicion that offending may have taken place did not fulfil the criteria under s338(4) RMA. There was nothing explicit in the email from FDC officer to alert WRC to the possibility that tyres were being buried on the property and it even stated that no evidence of buried tyres had been found. WRC was not concerned with the storage of tyres on the land which there was evidence of at the time. Evidence of buried tyres was only discovered through investigations undertaken after WRC had received the complaint.

(2) It was not the case that for continuing offences, information could only allege offending that occurred within six months prior to the laying of the information. Section 338(4) dealt with the procedure for laying an information and not the substance of it. The timeframe was there to require the informant to act diligently in its decision to prosecute once a contravention was identified. Section 338(4) was triggered by the identification of the contravention so that offending older than 6 months could still be prosecuted. There was no logical reason why continuing discharges should be treated differently from single discharges.

(3) The evidence established that the tyres placed at the locations specifically identified in the informations were contaminants for the purposes of s2 RMA (interpretation). The informant did not need to prove a limit or threshold over which tyres could become contaminants. It was sufficient that the evidence showed that the tyres were likely to change the physical or biological condition of the soil.

(4) There was no reason why the offending could not be categorised as both representative and continuing. The concepts were not mutually exclusive. The key issue was a procedural one, namely if the defendant was fairly informed of the substance of the offence. In terms of a representative offence, the degree of specificity required did not necessarily imply that a date had to be identified. In the case of continuing offences, an informant had to prove that an offence was committed at a particular time and continued after that time. This did not mean however that an exact date had to be nominated as the starting point for the offending, but rather that there was a beginning time from which the offending continued. This was a matter to be determined on the facts.

In his admissions, B admitted to burying tyres in a number of locations over several years or in the last 12 months. B's admissions were not vague and though there were no admissions as to any discharges after WRC had observed the buried tyres, the Court could take into account the continuing effect of the discharges should the defendants be convicted. WRC had proved beyond reasonable doubt that tyres were buried by B at the property during the year prior to WRC having knowledge of the offending. The evidence also established beyond reasonable doubt that tyres buried in the ground, coming into contact with rainwater, would eventually leach contaminants into the soil with the possibility of the contaminant eventually entering groundwater.

Specific charges proven beyond reasonable doubt. Representative charges dismissed.

DECISION

Introduction
1

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

either by selling or giving them to farmers 3, but a number of tyres were buried at the Naike property. The informant alleges that between 11 February 2008 and 5 May 2009 the defendants (Mr Britten and the company) unlawfully buried thousands of tyres in five locations on the Naike property, and that such burial was required to be authorised by a resource consent for which there was none.Furthermore, the informant alleges that the burial of tyres into land on the Naike property was prohibited by an abatement notice which had been issued by the informant against Mr Britten in 2003.
2

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.

3

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

4

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.

Are the informations laid out of time?
5

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.

6

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.

7

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...

To continue reading

REQUEST YOUR TRIAL