Rotorua Lakes Council pleaded guilty to discharging a dangerous substance from the city's dump. Photo / NZME
"Serious offending of a systemic nature" is how a district court judge views Rotorua Lakes Council's discharging a dangerous substance from the city's dump.
The council has now been given a $60,000 fine and ordered to pay $80,000 reparation towards setting up a trust with local iwi to help rectify the offending, a Rotorua District Court judge has ruled.
The judge says the council tried to minimise its offending and didn't act effectively to stop it, despite knowing the issues.
Judge Jeff Smith today delivered his sentence following a four-year court battle that saw the council plead guilty to one charge brought by the Bay of Plenty Regional Council under the Resource Management Act of discharging a contaminant, namely stormwater contaminated with leachate, on to or into land in circumstances where it may enter water.
Judge Smith said it was a repeated failure to adopt recommendations of experts and the council attempted to minimise the offence particularly by disconnecting it from other discharges that happened before and after the offence.
He described it as "serious offending of a systemic nature" in circumstances where the council was aware of the ongoing danger of leachate discharge. He said the failure to take action "must be regarded as serious".
The charge relates to offending on April 6, 2017 but Judge Smith today reiterated it was a repeat of previous and well-documented events.
The leachate - which was described in court documents as having a bacteria equivalent to that of raw sewage - came from the city's dump site and, in a diluted state, entered Tureporepo Stream, which flows into the Puarenga Stream and Lake Rotorua.
Puarenga Stream flows through famous tourist attractions at Te Puia and Whakarewarewa Village, where penny divers dive for coins tossed off a bridge by tourists.
The reparation money will be used to set up a trust that will work to restore the waterways. Tangata whenua will be represented by three trustees who gave victim impact statements during the court procedure - Wally Lee, Peter Staite and Helen Beckett.
Judge Smith said based on photographic evidence, a significant amount was discharged over days rather than hours and was flowing into the waterways at a reasonable rate.
He said victim impact statements from the iwi representatives noted the depth of hurt and betrayal felt by tangata whenua. Staite described the offending in court as "sinister and evil".
"I accept that the taking of household water from the streams would in part have been affected by the leachate. Whether this has had a direct impact on health is unclear. But certainly, the contaminants are ones known to cause health and other difficulties."
Judge Smith said when he considered the effects on the environment, he accepted the discharge of leachate would have been diluted before it reached water. He said the discharge to land appeared to circumvent the leachate collection system and flowed overland, eventually reaching the stormwater pond and then the stream.
He said it was a cumulative effect with other discharges from the site to the waterways, river and eventually the lake.
He noted a report by Tonkin and Taylor in 2015 recommending changes that would have remedied the problem was not acted on by the council.
The council applied for a discharge without conviction, but Judge Smith rejected the application, noting he found the council's argument "difficult to make out".
He said ratepayers had a right to know what was occurring in their area and not knowing about the leachate discharges was one of the very complaints tangata whenua made.
He said he was surprised to hear the council considered it didn't have any obligation to notify its ratepayers or tangata whenua.
Judge Smith said while the council didn't discharge the leachate on purpose, it allowed the circumstances to continue in which leachate would discharge in rainfall events.
He acknowledged the later capping of the landfill, re-grassing, stabilisation, long term treatments and placement of the transfer station had resulted in a significant improvement to the site.
He said although the council had spent $3 million on remediation of the site, a great deal of that would have been necessary to avoid the court action.
District council lawyer Fraser Wood submitted it should be a mitigating factor that four of the original charges were dropped. But Judge Smith disagreed saying it was common for multiple charges to be laid and then some withdrawn.
The site is now closed as an active landfill but operates as a transfer station with waste transported off-site for landfilling. There have been no further incidents of leachate discharge into stormwater.
What do iwi say?
"It's a win but the real work starts now."
That's the view of Whakarewarewa Village representative Wally Lee, who told the Rotorua Daily Post iwi were happy with the outcome of the court case.
Lee said they would work hard to ensure the waterways returned to a state where they were safe for children to again penny dive in the Whakarewarewa Village.
Fellow iwi representative Peter Staite said the iwi was "the new watchdog".
"We will hold the councils to account because they have a legal duty."
What does the council say?
In a statement after court today, Rotorua Lakes Council said after the case it acknowledged leaching to land at the landfill happened but said it was in the context of an extreme weather event outside of the council's control.
The statement said no evidence was presented of any physical adverse effect on waterways as a result of the leachate discharge but the council acknowledged the impact on the spiritual and cultural values of the waterway and mana whenua, and apologised to mana whenua as part of a restorative justice process.
Council deputy chief executive infrastructure and environment Stavros Michael said the council failed to meet its own expectations during the landfill transition and let mana whenua down.
What does the mayor say?
Rotorua mayor Steve Chadwick, after the case, said in a statement the council was committed to doing everything possible to prevent future occurrences and remained committed to building genuine, constructive relationships with mana whenua and iwi.
"Dealing with the legacy issues related to the landfill was picked up with urgency by the council that was elected in 2013 and the decision to cap and seal the site in 2016 was part of our waste minimisation strategy, ensuring that what we have today is very different from the open landfill of the past."
She said a plan was in place and actions were under way when they were hit by the storm of April 2017, and immediate action was taken to remedy the leachate overflow.
Cost of the case
To date, the Rotorua Lakes Council has incurred legal and consultant costs totalling $695,656.
The councillor says he did not say the words – but his meaning was correctly inferred.