Bay of Plenty companies fined after contaminating farmland stream

Sediment-laden water discharging from a hole in a sediment retention pond and flowing over land at a kiwifruit development property in in 2022. Photo / Bay of Plenty Regional Council

Three Bay of Plenty companies have been fined after contaminating a farmland stream with sediment-laden “dirty water” while developing a kiwifruit orchard.

Baygold Limited and P3 Earthworks Limited pleaded guilty in the Environment Court at Tauranga to a joint charge of carrying out earthworks in breach of the Resource Management Act and of a resource consent granted to Badala Orchards Limited.

Badala admitted a breach of the Act which resulted in sediment-laden stormwater being discharged on to land and entering water.

The Bay of Plenty Regional Council prosecution related to the failure of a sediment retention pond during earthworks to create a kiwifruit orchard at 584 Otamarakau Valley Rd, in the coastal settlement of Ōtamarākau between July 12 and August 2, 2022.

The maximum penalty for the offences is a fine of $600,000.

Judge Melinda Dwyer’s written judgment was recently released to the Bay of Plenty Times following sentencing submissions from lawyers in the case in March.

The judgment said the discharge adversely affected the Waitahanui Stream, which meanders through farmland in the Ōtamarākau Valley.

A regional council scientist who visited the site five weeks after the July 2022 discharge said it had a “high to very high” magnitude of impact on the immediate area, and a moderate ecological impact, the judgment said.

The scientist gave evidence this type of sediment was a “major stressor” of freshwater ecosystems and was bad for water quality, fish, invertebrates and algae. The large amount of sediment found was expected to result in “ongoing periods of raised suspended sediment” downstream.

Badala’s resource consent, granted on March 22, 2022, allowed it to undertake land disturbance to establish a kiwifruit orchard and discharge treated sediment-contaminated stormwater.

Discharges had to comply with council-approved erosion and sediment control plans and only five hectares of earth should be exposed on the site, among other consent conditions.

Badala engaged Baygold to develop the orchard and P3 Earthworks was the subcontractor for the earthworks and constructing a sediment retention pond. No soil testing or compaction tests were done beforehand, a council summary referred to in the judgment said.

On March 31, 2022, a regional council enforcement officer inspected the newly built retention pond and the council approved a winter earthworks management plan.

Unstablised earthworks area on a kiwifruit orchard development property in Otamarakau Valley Rd, Ōtamarākau in 2022.

According to the summary of facts, around the end of April 2022, Baygold raised concerns too much ground had been opened up and attempts were made to stabilise the earthworks with mulching and seedings before the works were ceased.

In July 2022, Baygold told the council stormwater was released from the retention pond but all water was retained on site and repairs done.

Four days later, Baygold reported the pond had failed in the same place and “dirty water” was leaving the site.

A visiting enforcement officer found a large hole in a corner of a retention pond. The wall was crumbling and a significant amount of water was coming into the pond from the catchment area, the summary said.

Sediment-laden water discharging from a hole in a wall of sediment retention pond during earthworks at an Otamarakau Valley Rd property in 2022. Photo / Bay of Plenty Regional Council

“Brown turbid, sediment-laden water” was seen flowing into a duck pond.

Baygold and P3 Earthworks representatives tried installing a silt fence to capture the sediment, the judgment said.

Council officers also observed significant erosion in the earthworks and abatement notices were issued on July 28, 2022.

The council’s lawyer Hayley Sheridan submitted Badala’s conduct was careless and it had adopted a “hands-off” role in complying with the consent conditions, despite having a person with experience developing land into kiwifruit orchards.

She argued Balada must take overall responsibility as it owned the site and authorised the earthworks and ultimately would derive “significant benefits” from this development.

Sheridan submitted the Baygold and P3 Earthworks offending was carelessness to “a high degree” as both were experienced operators.

Badala’s lawyer Hans van der Wal said he accepted his client “could have done better” but did not accept the amount of exposed earth was relevant to the discharge.

P3 Earthworks’ lawyer Lana Burkhardt submitted her client’s offending was careless but “not to a high degree” and said high rainfall in July 2022 made it difficult to access the land with machinery.

Baygold’s lawyer Ellie Harrison submitted that the gravity of her client’s offending was low and argued its more than $136,000 in remedial work went “above and beyond” damages caused.

She asked the judge to discharge Baygold without conviction given the risk it would be viewed as an irresponsible kiwifruit developer.

Judge Dwyer said it was clear a combination of factors led to the offending and accepted Badala had been “careless”.

The judge said Baygold as head contractor bore “more responsibility” for what occurred than P3 Earthworks.

Judge Dwyer convicted and fined Badala $24,500, Baygold $22,750 and P3 Earthworks $14,000.

Ninety per cent of these fines must be paid to the council.

Sandra Conchie is a senior journalist at the Bay of Plenty Times and Rotorua Daily Post who has been a journalist for 24 years. She mainly covers police, court and other justice stories, as well as general news. She has been a Canon Media Awards regional/community reporter of the year.