One of the charges was for disturbing the streambed, another was for placing structures in it and three were for discharging sediment into it.
Charges relating to a second site, where Bracken bulldozed a track through the river, placed large concrete blocks, and erected a fence, were dismissed.
The judge noted all the charges specified Bracken’s activities were not allowed by either a national environmental standard, a rule in a regional or proposed regional plan for the same region, or a resource consent.
But the Tairawhiti Resource Management Plan and the council’s Freshwater Plan were some of the most highly permissive documents of that type he had ever seen.
The activities the council alleged were illegal at the second site were actually defined in some sections of those plans as permitted activities.
He was critical council witnesses had failed to note that.
Council prosecutor Adam Hopkinson said the oversight was unintentional — the witnesses’ focus was on other relevant sections.
The judge also noted one of the plans contained a confusing provision which seemed to allow for the construction of a stock crossing — such as that at site two — if it were done before July 1, 2018.
A council inspector, acting on a complaint from the Fish and Game Council, first visited the site on January 10, 2018.
Two culverts were already installed. He discussed with Bracken the need for sediment control and resource consent before installing a third.
Bracken’s culpability at that point was low, the judge said. He did not seem to have deliberately thwarted the Resource Management Act and no reasonable council would have refused him consent had he applied for it.
The culvert crossing was to replace a previous one that repeatedly washed away in large rain events and was necessary for him to gain safe access for stock and people to his recently upgraded yard and woolshed facilities.
The crossing would keep stock permanently out of the water — something this council wanted him to do and a hot issue for councils elsewhere.
Its long-term effect was likely beneficial.
Bracken’s culpability increased when he continued with the project regardless of advice from that inspector and others who visited a couple of weeks later to get resource consent.
Mr Hopkinson viewed that continuation of work as deliberate defiance but the judge said he thought Bracken might have seen the need to complete the half-finished project to stabilise it and curb further sediment discharge.
Neither had the abatement notices specifically required Bracken to cease work. The further work he did showed him genuinely attempting to comply with sediment control specifications in the notice.
Contrary to what an inspector suggested, the structure seemed to have well withstood an at least one-in-five year heavy rainfall event in February, 2018, the judge said.
There was no evidence of any long-term affect on the tributary or the Motu River. Any sediment looked to have gone by March, 2018, the judge said.
The breach of the abatement notice would be taken as part of the overall offending with no discrete uplift for it, the judge said.
Bracken’s decisions to represent himself and to not give evidence meant some aspects of the case could not be properly argued, the judge said.
Because Bracken was not subject to cross-examination, his assertions he spoke with council officers prior to construction and that he relied on erroneous website information to deduce he did not need resource consent had to be put aside.
The judge agreed with Mr Hopkinson the sentence needed to deter other farmers from doing similarly unconsented work. That said, $20,000 was relatively low for proceedings in this arena, which often resulted in fines five and 10 times higher, Judge Smith said.
Refusing Bracken’s application for a discharge without conviction, the judge said it lacked grounds.
Bracken’s witness Peter Helmbright (a cousin of Bracken’s wife Margaret) submitted two marae granted retrospective consent. But consent granted under the Te Turi Whenua or any other Act was overridden by that required under the RMA, the judge said.
Some details of the judgement and sentencing were suppressed.
At the end of the trial yesterday, Gisborne District Council director of environmental services and protection Nick Zaman said the council was pleased with the outcome of the trial.
“This prosecution sends a clear message the council will take a tough line on serious non-compliance,” he said.
The council encourages landowners to get in touch if they are undertaking works where they are unsure whether a resource consent is required.
