RMA case: Kokkosis could be discharged for contaminated soil

Developer Yannis Kokkosis was charged with breaching a national environmental standard when he removed contaminated soil, without necessary resource consent, from the back of this MacDonald Street property in October, 2020. The land has since been fully remediated and Kokkosis's plan to build three houses on the property completed.

A Gisborne developer with the distinction of being the country’s first person to be prosecuted for mismanaging contaminated soil, has been given a further chance to avoid conviction and a $10,000 fine.

Yannis Kokkosis, 34, and his company Gypsy Investments Limited (GIL) were each to have been sentenced last Wednesday in Gisborne District Court, having been found guilty in March of two charges under the Resource Management Act (1991) that breached a national environmental standard (NES) for assessing and managing contaminants in soil to protect human health.

Companies can be fined up to $600,000 for the offence; individuals up to $300,000.

During the sentencing hearing, Environment Court judge Brian Dwyer convicted and fined GIL $20,000 and signalled he intended to fine Kokkosis $10,000 individually.

However, the judge held off convicting Kokkosis and adjourned sentencing of him until September 23. Kokkosis had applied for a discharge without conviction and having rejected one of the grounds put forward, the judge wanted to give counsel Adam Simperingham a chance to bolster the second argument.

The judge rejected Mr Simperingham’s contention that a conviction would affect Kokkosis’s aspiration to pilot helicopters in Canada — something he had wanted to do since 2019. It was too speculative, Judge Dwyer said.

However, he could be persuaded by the second argument — that Kokkosis’ might stand to lose his current employment. If evidence could be produced to show that, then it would satisfy the legal test of being a consequence “out of all proportion to the gravity of the offence”, the judge said. At this point, he didn't have enough information to make a decision either way. 

The court had been told Kokkosis’ current role with Switched On Housing involved him overseeing the building of Kainga Ora homes, which sometimes included him dumping hazardous building waste. Mr Simperingham said he had not yet been able to ascertain from Kainga Ora if a conviction of this type would make Kokkosis ineligible to work for them.

Notwithstanding it was a Gisborne District Council prosecution that brought Kokkosis before the court, he was supported at the hearing and in his application to be discharged without conviction, by a personal friend — elected Gisborne district councillor Daniel “Teddy” Thompson.

The case arose out of what Judge Dwyer described as Kokkosis’ eagerness, in October 2020, to get on with a project building three houses on land at the rear of a 2605 m2 property he and GIL owned at 42 MacDonald St, Te Hapara.

In the course of doing so, Kokkosis unlawfully excavated and dumped tonnes of soil that were contaminated with asbestos, lead, and arsenic, ignoring advice given to him by a company he commissioned to help him prepare the subdivision proposal. That company, Land Development and Engineering Limited (LDE), had advised him at least three times that the soil was contaminated and he shouldn’t disturb it without a resource consent and remedial plan.

However, on October 31 2020, Kokkosis went ahead and shifted the soil,  prompting LDE to report its concern to the council, triggering the prosecution.

It is not known exactly how much soil was involved. The results of LDE’s soil sampling tests showed there were areas of soil where arsenic levels were 11 times higher than the residential guidelines value under the NES; and lead levels were six times higher. However, Judge Dwyer accepted these were likely hot spots, caused by old buildings that once stood on the land and its previous use for horticulture. 

Judge Dwyer confirmed Kokkosis had since got retrospective consent and remediated the land appropriately. It had been re-tested and results showed there was now unlikely to be any risk of exposure to dangerous contaminants. The three houses had been completed. 

The  judge agreed with council prosecutor Adam Hopkinson that the defendants’ culpability was high and the gravity of the offending was moderately serious.

The potential effects of it on human health were serious, albeit there was no evidence of any actual effect.

Determining a sentence starting point of $30,000, to be apportioned between Kokkosis and GIL, the judge said neither defendant had any previous convictions under the RMA to warrant an increase. Kokkosis’ only prior conviction — for driving with excess blood alcohol more than five years ago — was irrelevant. Likewise, there were no mitigating factors to reduce the penalty such as a guilty plea since Kokkosis chose to have the case heard.

In reaching the figure for the starting point, the judge said he was strongly influenced by:

• The absence of information as to the extent of arsenic and lead in the land and the likelihood it was unlikely to have been widespread;

• That exposure of people to the contaminated soil would have been limited to about a day when Kokkosis excavated and shifted it;

• The remediation undertaken by the defendants.

Counterbalancing those factors, the judge said, was Kokkosis’ defiance of advice given to him by LDE — the most serious aspect of the offending. Further to that, there was a need to deter other developers from failing to meet their obligations to comply with the requirements of the NES.

The Council opposed Kokkosis' application to be discharged without conviction 

https://www.gisborneherald.co.nz/news/developer-facing-charges-over-contaminated-soil-removal