Developer breached the National Environmental Standards

A109 Light Utility Helicopter flight with mayor Gisborne City from the air in November 2023.

The district council has been partly successful in its prosecution this week of a developer who excavated and disposed of highly contaminated soil from a Gisborne property he wanted to subdivide.

Yannis Kokkosis, 34, is the sole director of Gypsy Investments Limited, which owns the 2605 m2 property at 42 MacDonald Street on which he wanted to put three houses.

An area of contamination at the rear of the property, which was at the centre of this week's court case, has since been remediated and Kokkosis granted consent for the development.

However, in October 2020, soil samples taken from the rear of the property revealed the presence of asbestos and high levels of arsenic and lead. These were likely due to past horticultural activities and buildings that were once there.

The contamination was discovered by Land Development and Engineering Limited (LDE), which Kokkosis engaged in August 2020 to prepare necessary reports for the subdivision.

When LDE told him he would need to get resource consent and follow a supervised remediation process to rectify the land, he replied that the soil was already gone. This ultimately led to a breakdown in the relationship between him and the company, which reported its concerns to the council, triggering the prosecution.

Kokkosis and Gypsy Investments each faced two representative charges under the Resource Management Act alleging breaches of regulations within the National Environmental Standards (NES) for assessing and managing contaminants in soil to protect human health.

The council contended the defendants breached either regulation 10 of that NES, which allows for “restricted discretionary activities” or regulation 11, which describes “discretionary activities”.

Kokkosis' counsel Adam Simperingham challenged whether soil samples taken for consent purposes were adequate to support a court case. He said the volume of soil disturbed was less than the council claimed — diluted by cleaner materials. The defence also contended the weight of anything dumped was actually largely due to concrete foundations and receipts describing deposits were not detailed or accurate in their descriptions of materials. The activity was permissable under another section (8.3) of the regulations.

The case was heard by Environment Court Judge Brian Dwyer in Gisborne District Court this week.

In his decision delivered on Wednesday afternoon, Judge Dwyer dismissed the regulation 10 charge, but found Kokkosis guilty of the regulation 11 charge.

A sentencing date is yet to be set.

The judge said the regulation 10 charge, which alleged offending between November 22, 2020 and February 6, 2021, depended on proof that Kokkosis dumped contaminated soil at Tomlins landfill on February 5, 2021.

But there wasn't sufficient proof, the judge said. All the evidence he heard pointed to contaminated soil being removed from the McDonald Street property several months earlier and that subdivision earthworks were nearly completed by mid to late November, 2020.

He couldn't be satisfied that contaminated soil on the piece of affected land was disturbed during the time frame specified in the charge.

In determining his guilty verdicts for the regulation 11 charge, the judge said he needed to consider defence contentions that two alleged deposits of soil to landfill on November 14 were not from 42 MacDonald Street, and that any soil disturbance that had taken place at the property was a permitted activity under another regulation (8.3) in the NES.

He noted the defence had a difficulty because Kokkosis in his initial dealings with the council and in his dealings with LDE had asserted on a number of occasions that the total weight of soil disturbed on the piece of land and removed to the Jukes landfill was 26.29 tonnes.

The judge said he would exclude from that weight asbestos removed on September 25, 2020, and the soil removed on February 5, 2021, which he was not satisfied came from MacDonald Street.

That meant the soil allegedly disturbed amounted to 24.2 tonnes and was allegedly deposited at Jukes landfill in two lots on October 31, 2020, and two lots on November 14, 2020.

The judge said Kokkosis' evidence in court had “somewhat surprisingly” contradicted his previous advice to the council and his LDE advisers as to the origin of the soil taken to the landfill on November 14.

He previously said it was MacDonald Street but testified it was from a collapsed bank and retaining wall at his father's house.

His father gave evidence in support of it, which there was no reason to doubt, the judge said.

However, “the contention that the soil deposited at Jukes on 14 November came from his father's place raised something of a credibility mountain for Kokkosis to climb — in light of him having not previously advanced that explanation and his previous acceptance of the 26.29 tonnes in the deposition figure”.

Kokkosis explained in court he was working up to 80 hours per week and trying to progress his subdivision and had not carefully checked the sparsely detailed dockets supplied by Jukes for the court case.

He hadn't appreciated that the ones dated November 14 were not related to MacDonald Street.

“I formed the impression that Mr Kokkosis (jnr) was out of his depth with his dealings with the council in a matter with which he was in considerable legal jeopardy,” the judge said.

He noted no fault lay with the council for that. It had given the defendants all necessary warnings.

However, the evidence given by Kokkosis, Mr Kokkosis snr and the advanced state of the McDonald Street subdivision by November 14 led him to believe it was “highly likely” the material dumped that day was from Kokkosis' father's place, notwithstanding Kokkosis' failure to identify that earlier.

He said that left the undisputed fact that the defendants had disturbed soil at the MacDonald Street property on October 31, 2020, and had deposited that at the Jukes site.

Given that, he had to consider the defence contention the soil disturbance on that day was a permitted activity under section 8 of the NES.

However, the defence's own expert witness had agreed with the council's expert witness that any soil removed from the MacDonald Street site would have required special scientific testing before it could be cleared for dumping at the landfill, which did not have resource consent to receive soil highly contaminated with arsenic and lead.

That finding in itself took the disturbance activity outside the permitted activity requirements specified in the NES regulation that the defence relied on, the judge said.

And, none of the evidence he heard “remotely satisfied” him the soil disturbance activity met any of the other conditions under that regulation.

The report in Wednesday's Gisborne Herald about the district council's prosecution of Kokkosis incorrectly stated the date of his formal interview with an investigating officer at the Council. The interview was on February 5, 2021, but due to a typographical error the date was reported as February 5, 2020.