MHL obtained consent to install a bore on the property but when it was drilled in 2021, no water was found and the defendant obtained consent to drill another bore in September that year at an adjacent property, which at the time was owned by David Grant Thomas.
However, no consent was obtained to take groundwater until December 2022. Thomas, who appeared separately, had also admitted unlawfully taking millions of litres of water.
MHL’s offending between September 14, 2021, and January 25, 2022, involved taking almost 8 million litres more water than was legally permitted.
This offending came to light after a Maniatutu Rd resident complained to the regional council.
The council enforcement officers carried out inspections at MHL’s property and the bore site next door in January 2022 following a complaint by a Maniatutu Rd resident, the council’s summary of facts revealed.
Abatement notices were issued to MHL in March 2022 to cease this illegal activity.
Lawyer Victoria Brewer, on behalf of the regional council, told Judge David Kirkpatrick and Judge Sheena Tepania that this was “deliberate” offending or at the very least “reckless”.
There was a “high degree” of culpability because it was clear MHL had prioritised the potential $4.5m annual return on its investment rather than the focus on its environmental protection obligations
Brewer also pointed out that because MHL kept no records of groundwater use over the offending period, it was unknown whether the bore had been operated sustainably and whether any adverse effects were less than minor.
She said the regional council’s concern was the sustainability of precious water resources, particularly given the impacts of climate change.
Brewer argued a fine starting at $50,000 was appropriate before discounts were allowed for guilty pleas and personal mitigating factors.
MHL’s lawyer, Shehan Gunatanga, argued it was an “act of carelessness” because the company had unfortunately “dropped the tools” during a time when the company director’s wife suffered life-threatening medical issues.
Gunatanga said MHL acknowledged there had been poor communication between the company and a contractor responsible for turning on and off the water use system and there were no contingency measures in place.
MHL, which had since undertaken “robust” remedial measures to safeguard this from happening again, was “extremely remorseful”.
He submitted the appropriate starting point for the fine should be no more than $40,000.
Meanwhile, David Grant Thomas, 55, entered a guilty plea to the same charge as MHL through his lawyer, Tim Conder, yesterday. .
Thomas admitted unlawfully taking 26 million litres of groundwater for use at a 216ha kiwifruit orchard in Pongakawa Bush Rd between December 22, 2020, and January 25, 2022.
At the time of the offending, 18.81ha of kiwifruit was growing at the property, the court heard.
A resource consent was obtained to install three water bores at the orchard property but the consent did not authorise the taking of water. Thomas’ offending also came to light after a complaint to the regional council in December 2021.
Brewer argued Thomas’ offending was far more serious than Maniatutu Heights Ltd because the scale of offending was greater.
Thomas “took the gamble” that his offending would not be noticed by the regional council rather than lodge the required water use consent application knowing there were likely to be objections.
Brewer said this defendant was a far more experienced kiwifruit orchardist than MHL and ought to have known his legal obligations and “even wilful blindness does not reduce his culpability”.
Brewer submitted a fine starting at $60,000 was appropriate before credits for his guilty pleas and 5 per cent discount for his lack of previous convictions.
Conder submitted Thomas’ culpability was not at the level Brewer suggested.
He said his client, who was illiterate, had been “let down after receiving bad advice” from a planner about when he should apply for resource consent to start abstracting water.
Conder said while Thomas knew consent was required, he was unaware of water restriction limits, but once he received an abatement notice to stop taking water he fully complied.
“Mr Thomas should not be punished for getting bad advice,” he said.
Conder argued the end fine for his client should be in the region of $21,000 after allowing a 30 per cent discount for his guilty plea and lack of previous convictions.
Judge Kirkpatrick and Judge Tepania reserved their sentencing decisions for both prosecution cases.
