Bay of Plenty kiwifruit business and earthworks contractor fined for illegal sediment discharges
Remains of the poorly constructed sediment retention pond after failure at a kiwifruit orchard site in Stockton Rd, Pukehina. Photo / Bay of Plenty Regional Council
Unlawful discharges of sediment-laden water from a Pukehina kiwifruit orchard site – some spilling onto a neighbour’s land – have cost two Bay of Plenty companies $63,500.
G and L Dyer Ltd and Ray Daysh Contracting Ltd each admitted land use in contravention of a resource consent granted by the Bay of Plenty Regional Council in March 2023.
The defendants also pleaded guilty to three charges each of discharging a contaminant onto land where it may enter water.
The offending related to earthworks at a Stockton Rd site between January and June 2024, according to Environment Court Judge Sheena Tepania’s sentencing decision.
Landowners G and L Dyer and Dyer Holdings Limited, collectively known as Gold Nugget Partnership, were granted the consent to develop the 10 hectare block of land into a kiwifruit orchard.
The consent was subject to several conditions, including strict erosion and sediment controls and contour plans. No more than 2ha of earth could be exposed at any one time.
Gold Nugget engaged Ray Daysh Contracting Limited to carry out the earthworks.
The regional council said that during a site inspection in January 2024, a compliance officer found more than 2ha of exposed land and no clean water diversion system above the earthworks.
A moderate non-compliance notice was issued to the consent holder.
In May 2024, the council received a complaint about “very poor” sediment control at the site, which impacted a neighbouring property.
A compliance inspection the next day found the channel leading to the sediment retention pond had “blown out”, scouring the overland flow path and spillway.
An area of sediment about 40m long was deposited on the neighbour’s property.
A further complaint and site inspection two days later revealed the pond structure had failed. Brown water had discharged straight into the neighbouring property, which then flowed overland towards a wetland area.
Two more discharge complaints triggered further inspections and two abatement notices were issued.
Gavin Dyer, the sole director of G and L Dyer, was “dismissive of the compliance officer’s concerns”, Judge Tepania’s decision said.
An expert engaged by the council later concluded the sediment retention pond was not built in accordance with the consent conditions, nor the council’s erosion and sediment control guidelines.
The expert calculated that the pond was designed for a 2.4ha catchment, but had a 23.4ha catchment flowing to it. This resulted in “significantly more” volume of runoff.
This, combined with the way the pond embankment was built, resulted in the pond’s failure.
Council lawyer Hayley Sheridan said G and L Dyer’s failure to address the council’s compliance concerns, despite repeated warnings, showed a “high level of culpability”.
She proposed a fine starting point of $40,000 to $50,000, with a 25% discount for early guilty pleas.
Sheridan said there should be no allowance for previous good character, as Gavin Dyer had convictions in 2016 for unlawfully taking water and breaching an abatement notice.
Neil Beadle, G and L Dyer’s lawyer, said his client had taken precautions to meet Resource Management Act obligations and engaged an experienced contractor to undertake the physical works.
Beadle emphasised the “lack of environmental impact” and said this was G and L Dyer’s first RMA charges. He sought a discount for prior good character.
In relation to Ray Daysh Contracting, Sheridan said she accepted the offending was not deliberate, but the experienced contractor’s conduct was “highly careless”, requiring a deterrent sentence.
Sophie Curlett, Ray Daysh Contracting’s lawyer, said the company had co-operated with investigators and had limited control over the wider development decisions.
Curlett sought discounts for early guilty pleas and good character, and said a fine exceeding $10,000 would place an “unmanageable financial burden” on the company and its director.
Judge Tepania assessed G and L Dyer’s culpability as “highly careless”, citing the commercial nature of the offending, continued development despite warnings, and damage caused to the neighbouring property.
Remedial work was not carried out with “sufficient urgency”, and the company had been dismissive of the council’s concerns and did not provide an explanation for the breaches.
She fined G and L Dyer Ltd $37,500 and ordered payment of $9600 reparation to the affected neighbour.
The judge said Ray Daysh Contracting should have recognised the non-compliant nature of the earthworks and the consent requirements.
She said the company had also acted in a “highly careless” manner, although to a lesser degree than G and L Dyer, and fined the company $10,000.
Ray Daysh Contracting was ordered to pay $6400 reparation to the affected property owner. In both cases, 90% of the fines will go to the regional council.
Sandra Conchie is a senior journalist at the Bay of Plenty Times and Rotorua Daily Post who has been a journalist for 25 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.