Case Note: Waikato Regional Council v Hydro Energy (Waipa) Limited And Robert Wilkin Neal

(District Court Hamilton, Judge Smith, CRI 2007-019-3364, CRI 2006-073-450, CRI 2006-073-447, 12 October 2007)

This is a recent sentencing case that illustrates that in appropriate circumstances the fines the Court is prepared to impose can be substantial.

The FactsA guilty plea to nine charges under the Resource Management Act 1991 (RMA) was entered by Hydro Energy (Waipa) Limited (HEWL). Three charges related to excavation and soil disturbance in and around the Waipa River and Waiharakia Stream and the remaining six to breaches of abatement notices.

Mr Neal pleaded guilty to three charges, excavation of the Waipa River bed, diverting the Waiharakia Stream and soil disturbance in the Waipa River Gorge.

The facts in the matter were complex and the Judge took the somewhat unusual course in a prosecution where a guilty plea is entered of† undertaking a site visit† Importantly at the time of the site visit some of the works that had been undertaken were significantly greater than at the time the charges were laid.†The Court therefore relied on photographic evidence in relation to these works.†

A summary of facts (some 27 pages) was largely agreed.†However there was a hearing on disputed facts that the Court ruled on separately to sentencing.

HEWL was seeking to build a run-of-the-river hydro-electric power scheme in the upper Waipa River valley near Te Kuiti.† Mr Neal was the earthworks contractor for HEWL.†The power scheme held a series of consents from the Regional Council and Waipa District Council.†The Judge had this to say about the nature of the consents:

Perusal of these consents shows that they are particularly generic in their terms and essentially provide for a consent on the basis that construction will not commence until a CMP [construction management plan] covering all the critical matters of regional concern is provided.† That CMP must be approved by the Regional Council, based upon technical certification ...

The actual mechanism for such technical certification and/or approval, however, is not set out in the consent.† Nor are the particulars of the content of the CMP or the various requirements to be achieved.†Not unnaturally, given the size and complexity of this project, this led almost immediately to ongoing problems between HEWL and the Regional Council.

In relation to works affecting the Waipa River it was not alleged that there would have been any significant effect upon the Waipa River as a result of these works.†The...