Bay of Plenty kiwifruit orchard owner convicted for unlawfully taking groundwater

Water storage pond and related infrastructure at an Aongatete kiwifruit orchard owned by Peter Stewart Holdings Ltd. Photo / BOP Regional Council

A Bay of Plenty kiwifruit business faces a hefty fine after being convicted of unlawfully taking about 25 million litres of geothermal water to irrigate its orchard and for frost protection.

This is the fourth unlawful groundwater prosecution the Bay of Plenty Regional Council has taken in 12 months, according to a council prosecutor.

Peter Stewart Holdings Ltd appeared in the Environment Court at Tauranga on July 24 for sentencing after earlier pleading guilty to unlawfully taking 25 million litres of geothermal water for use at a kiwifruit orchard in Aongatete.

The charge, under the Resource Management Act, carries a maximum fine of $600,000.

The prosecution relates to the defendant using the groundwater at its 59.23ha kiwifruit orchard at or near 71 Wright Rd, Aongatete.

The offending spanned 534 days between February 1, 2021, and July 19, 2022, the court heard.

A resource consent is required to drill a groundwater bore, and separate consents are needed to take and use more than 35 cubic metres of groundwater a day, as well as take and use geothermal water.

The defendant’s offending came to light after council officers carried out a region-wide analysis of where bore drilling consents had been granted and where no water-take consents had been sought.

The defendant failed to apply for water-take consent before or after a bore was installed at the property in 2016.

Water bore infrastructure at Peter Stewart Holdings Ltd's kiwifruit orchard in Wright Rd, Aongatete. Photo / Bay of Plenty Regional Council

Council enforcement officers inspected the property on July 19 last year and found water pumps and intake structures to irrigate the orchard. The water meter, according to the summary of facts, showed 25,741.74cu m (about 25 million litres) of geothermal groundwater had been taken since early 2021.

The defendant was issued an abatement notice to cease taking and using geothermal groundwater.

During a further property inspection on December 21 last year, enforcement officers found geothermal water was being discharged from a white pipe into a storage pond.

There was no evidence of direct environmental effects from this unlawful water take, the court heard.

Peter Stewart Holdings Ltd appeared for sentence in the Environment Court at Tauranga. Photo / NZME

However, the regional council’s lawyer, Adam Hopkinson, told Judge David Kirkpatrick that taking this amount of water without resource consent was “very concerning”.

Hopkinson said the protection of this “rare and precious” resource to ensure a sustainable supply of groundwater was available to everyone in the years and decades to come was “very important “.

He said the fine imposed had to be “commercially meaningful” as a deterrent particularly as this was the fourth unlawful water-take prosecution by the regional council within 12 months.

Hopkinson said a fine starting at $60,000 was appropriate before a 25 per cent discount for the defendant’s early guilty plea and 5 per cent for lack of prior convictions.

Defence lawyer Kate Barry-Piceno argued an end fine of $19,000 was more appropriate after taking into account personal mitigating factors and discounts for her client’s guilty plea and lack of previous convictions.

She said this was “not a case of vagrant disregard” for the Resource Management Act but rather a lack of attention to detail and one of the company director’s " inability’ to proactively address these matters due to personal reasons.

Barry-Piceno said her client’s main focus during the offending period was trying to keep the family-run orchard operating.

Meanwhile, Woodland Orchards Limited also pleaded guilty to a charge of unlawfully taking 26, 264 cubic metres of groundwater without resource consent in Environment Court at Tauranga on July 25.

Water bore headworks at Woodland Orchards Limited's kiwifruit and avocado orchard in Tahawai. Photo / Bay of Plenty Regional Council

The defendant, which owns a 26ha kiwifruit and avocado orchard in Tahawai, about 4km north of Katikati, took excess groundwater on 97 occasions between December 8, 2021, and September 16, 2022, the court heard.

Woodland obtained consent to drill a bore, which was installed in March 2021, but did not seekconsent to take more than the permitted daily limit of 35 cubic metres of groundwater. An abatement notice was issued in September 2022.

The council’s lawyer, Hayley Sheridan, argued this was “commercially-motivated” offending with an element of “deliberateness and wilful blindness” and the fine imposed must have a “sufficient sting” to deter Woodland and other orchardists.

A fine in the range of $42,000 to $49,000 was appropriate after a 25 per cent discount for Woodland’s guilty plea.

Defence lawyer Isobelle Kwek categorised her client’s offending as “careless” rather than deliberate.

Kwek said her client “fully engaged” in the resource consent process from the outset but there were “unexpected delays” in lodging the application.

Woodland immediately stopped taking water once the “significance” of the breach was drawn to its attention.

“We are not dealing with a strained, vulnerable environment and there is a lack of any environmental effects.”

Kwek disputed it was commercially motivated offending because Woodlands had paid to run a pipe over the ground on to a neighbouring property to take water as a temporary solution until consent was granted.

A fine starting at $30,000 to $35,000 reflected her client’s culpability, with 5 per cent discount for prior good character.

Judge Kirkpatrick reserved his decisions for both cases.

The Bay of Plenty Times reported in May this year that two neighbouring Pongakawa kiwifruit orchardists were convicted of unlawfully taking millions of litres of groundwater to irrigate their crops.

Maniatutu Heights Limited (MHL) pleaded guilty to taking nearly 8 million litres more water than legally permitted between September 14, 2021, and January 25, 2022.

The regional council said MHL obtained a consent to install a bore on the property but when it was drilled in 2021 no water was found, and no consent to take groundwater was obtained until December 2022.

The council has sought a fine starting at $50,000 for what it described as “deliberate” offending.

Meanwhile, MHL’s neighbour, David Grant Thomas, 55, pleaded guilty to unlawfully taking 26 million litres of groundwater to irrigate a 216ha kiwifruit orchard in Pongakawa Bush Rd between December 22, 2020, and January 25, 2022.

Thomas obtained resource consent to install three water bores at the property but the consent did not authorise taking any water. The regional council has sought a fine starting at $60,000.

The defendant’s lawyer Tim Conder has argued the end fine should be about $21, 000 as his client, who was illiterate, had been let down by “bad advice”.

Judge Kirkpatrick and Judge Sheena Tepaniareserved their decisions in relation to the two latter prosecutions.

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.