However, the council alleges Kokkosis knew what he was doing and that aggravated the offending.
Judge Brian Dwyer heard the case in Gisborne District Court this week and a decision was likely this afternoon.
If convicted, Kokkosis faces a fine of up to $300,000 or up to two years imprisonment. The company can be fined up to $600,000.
The alleged offending happened between September 1, 2020 and February 6, 2021, at 42 MacDonald Street — a 2605 sq m property Kokkosis bought off his parents in 2020 and wanted to subdivide into four lots so he could add three more houses behind an existing one (this has since been consented and is under way).
To begin the project, Kokkosis engaged Land Development and Engineering Limited (LDE) to do geotechnical and soil reports. It advised him the property had historically been used for horticulture; the soil containing high levels of arsenic and lead and brown and white asbestos fibres.
The arsenic levels in some contaminated parts of the property were 11 times higher than residential guideline values while lead levels were six times higher.
Kokkosis was told by LDE he would need resource consent to remove the affected soil with an appropriate remediation plan supervised by a suitably qualified professional.
Mr Hopkinson alleged Kokkosis defied that advice and removed soil and asbestos regardless without following correct health and safety procedures. He put others at risk, including a woman and children who tenanted an existing house on the property and disposal site staff.
The council believed Kokkosis also offered some of the soil for sale on Facebook, but he denied it was from MacDonald Street.
Any suggestion by Kokkosis that he was not aware of the LDE report at the time the soil was disposed of “didn't stack up” because there was correspondence showing otherwise, Mr Hopkinson said.
In evidence, LDE scientist Jeff Davenport said he and his firm had made Kokkosis aware of the likelihood of contamination at the property and procedures that would need to be followed even ahead of emailing him a formal report on November 13.
Davenport said he was shocked when Kokkosis replied soon after that soil was already gone and ultimately sent a copy of the report to the council on November 22 and informed it of his concerns.
The council began investigating, which included a formal interview of Kokkosis on February 5, 2021. He showed an enforcement officer receipts that suggested he took to ME Jukes and Sons Carriers transfer station or the Tomlins Landfill as much as 26.29 tonnes of soil from the property without authority.
Summarising Kokkosis's defence at the outset of the proceedings, Mr Simperingham said the prosecution's evidence as to the level of contaminants present in the soil was gathered for the purpose of a resource consent — not to prove the high threshold of “beyond reasonable doubt” for a criminal offence.
The prosecution case relied on eight small samples taken by LDE from “hot spots” on the property where contamination levels were expected to be high — for instance, sites where old structures had been burnt. Information gathered from those couldn't be used to determine the contamination level of the entire piece of land in question.
For “proof beyond reasonable doubt” there would need to have been a wider range of testing, Mr Simperingham said.
Any contaminated soil was much less than what Council suggested and had been “diluted” by cleaner soil before it was dumped. Therefore, the disposal was lawful.
Contrary to the council's claim that Kokkosis had knowledge he was offending, he had disposed of the soil before LDE advised him of its findings about the contaminants.
Kokkosis elected to give evidence saying the receipts he relied on were retrospectively printed for him by Jukes so weren't an accurate record of the type of material he had disposed. It was mostly concrete foundations and not all had come from McDonald Street so the volume of soil the Council claimed to have been disturbed was overstated.
He said he was certified to handle asbestos and had followed appropriate protocols.
His father gave evidence to support Kokkosis' claim some of the material he disposed of was from his parents' property.
