Aongatete dairy farmers fined $28k for illegal cowshed effluent discharge

The main gully with the effluent flowpath looking down-gradient. Photo / Bay of Plenty Regional Council

A 92-year-old landowner and his farm manager son have been fined $28,000 for illegally discharging untreated dairy effluent which ended up in a tributary of the Aongatete Estuary.

Francis Nettleingham, 92, who is the landowner and consent holder, has owned and operated the farm property in Matahui Rd, Aongatete for more than 70 years, and his son John is the farm manager, according to Environment Court Judge David Kirkpatrick’s sentencing notes.

The pair, who were prosecuted by the Bay of Plenty Regional Council, had pleaded guilty to discharging a contaminant, namely dairy effluent, on to or into land in circumstances where it entered a waterway - the maximum penalty for this Resource Management Act offence is a fine of $300,000 or two years’ imprisonment.

Judge Kirkpatrick’s recently released sentencing decisionrevealed the illegal discharge happened on October 13, 2021.

The Nettleinghams operate as a small calf-rearing enterprise, milking about 30 cows to feed the calves, and held a resource consent to discharge untreated dairy effluent to pasture by an irrigator which was granted in February 2013, the summary of facts said.

When a regional council compliance officer inspected the farm on October 13, 2021, they found a pipe system from the cowshed was set to divert the flow of washdown water into the stormwater diversion pipe leading to a gully rather than directly into an effluent storage system.

Untreated effluent flowing from a stormwater diversion pipe towards a gully on the Nettleinghams' dairy farm at Aongatete, Photo / Bay of Plenty Regional Council

Green effluent had discharged from the pipe onto land, then into a gully below, and there was ponded effluent on the ground at the outlet of the stormwater diversion pipe, as well as effluent flowing along a channel in the gully.

The point where the farm drain on the Nettleinghams' dairy farm in Aongatete flows into Tauranga Harbour via a flood gate. Photo / Bay of Plenty Regional Council

The gully passed through a culvert into a drain that flowed into Tauranga Harbour about 450 metres downstream and into a tributary of the Aongatete Estuary immediately downstream from the farm. The effluent flow was " continuous” and the effluent storage tank was “overgrown with grass and weeds”.

Nettleingham snr told the officer they held dual effluent discharge consents, but the officer informed him that the consent for discharges to the gully ended in 2014, and effluent from the cowshed was supposed to be discharged to a storage tank, then on to pasture by the irrigator.

His son told the officer after milking that day he had not checked the stormwater diversion, and was unsure when he last changed the diversion gate, and stated the illegal discharge was the “result of forgetfulness”, and confirmed he did not keep records of the irrigation.

The next day the officer served abatement notices on both farmers requiring them to immediately cease breaching the conditions of their resource consent.

Aongatete Estuary was classified as an indigenous biological diversity area due to the presence of threatened birds, fish, high-quality estuarine vegetation and as of national significance, the summary of facts also stated.

Dairy effluent was high in organic matter and had “very high” nutrient, ammonia and bacterial levels which can cause excessive weeds, contribute to algae blooms - which can be toxic to fish and other aquatic life and is also a heightened health risk for recreational users.

The council’s lawyer Adam Hopkinson submitted that a fine in the range of $30,000 to $37,500 was appropriate, as the defendants’ culpability was “high” given the degree of their “carelessness or forgetfulness” and their past compliance records.

The defendants’ lawyer Lara Burkhardt argued this was a “one-off event” rather than a case of “intentional or reckless” offending and the appropriate starting point for the fine should be $25,000 to $30,000 before discounts for remedial steps, guilty pleas and lack of prior RMA prosecutions were taken into account.

Judge Kirkpatrick imposed fines of $14,000 on each defendant, after allowing a 5 per cent discount for their “relatively good records” and their guilty pleas.

“There does not appear to have been any fault or problem with the elements of the [stormwater and effluent diversion] system, only with the way in which the defendants used it. Fortunately, the scale of the milking operation on this farm meant the consequences were less than regularly seen in cases coming before the Court,” the judge’s sentencing decision stated.

“Even where a farm is relatively small and risk of authorised discharges is relatively low, it is still incumbent on farmers to put the design, operation, maintenance and inspection of their effluent management systems at the forefront of their work, for their own sake, to avoid penalties and for the sake of the environment we all.”