Environment Court enforcement against ineffective dairy effluent management – Awarua Farm case study

Environment | Print Article

[Spring 2014]

A enforcement order by the Environment Court should be a timely warning for dairy farmers to ensure their effluent management systems meet required standards and are capable of coping with expansion on-farm.

In April 2014 the Environment Court issued an enforcement order against a Marlborough dairy farm owner prohibiting him from re-stocking for the 2014-15 milking season until an approved effluent management system is installed on his farm. The Court indicated that it could order the farm to be destocked if the effluent system is not installed as directed, and might even cancel the farm’s resource consent – which would be an unprecedented move in New Zealand.

Those with an interest in dairy farming are probably well aware of the enforcement action under the Resource Management Act 1991 (‘the RMA’) being taken by Marlborough District Council (‘the Council’) against Awarua Farm Marlborough Ltd (‘the company’) and its director Mr Philip Woolley (together ‘the Respondents’) since August 2013.

The Council has successfully obtained interim, and now permanent, enforcement orders. The Respondents operate a farm on the low-lying river flats of the Wairau River at Tuamarina, and the Council has established that the operations breach the terms of the company’s resource consent.

The Problems

Effluent from the farm’s wash-down yard entered several drains connected to a small trap, and then flowed by pipe through an old piggery, passed through the piggery’s under-floor drainage system and then entered a concrete sump. In the sump was a pump with a stirrer, which was attached to external piping which discharged via an irrigator.

The Court was satisfied that, when the inflow volume to the sump exceeded its capacity, the effluent would back up through the piggery under-floor drainage and would overflow to surrounding low-lying land. The Court was also satisfied that the volume of wash down liquid from each milking exceeded the sump capacity, and that there were periods when effluent collected around the sump and then flowed to nearby races, ponded in low-lying areas and discharged to adjacent field and drains. Further, photographic evidence satisfied the Court that the irrigator had occasionally lost its distribution nozzles, stalled and had caused ponding.

The Court, consistent with commentary in many other cases regarding the unreliability of irrigators, remarked that such an irrigator should be used on the site only with constant vigilance to ensure that consent conditions were maintained.

Case History

Marlborough District Council v Awarua Farm Marlborough Ltd

The Environment Court has identified that ‘Mr Woolley and the various farming identities he operates are having considerable problems meeting modern environmental standards’. The Court has issued two interim decisions including an interim enforcement order, and now an enforcement order decision, in an attempt to regularise the operation of the farm.

Round 1 – 30 August 2013, [2013] NZEnvC 206

Given the Court’s view as to the seriousness of the case, in an unprecedented move a director of Fonterra appeared by summons and gave evidence as to Fonterra’s involvement with Mr Woolley in terms of its supply agreement with Awarua Farms and the ‘Sustainable Dairying: Water Accord’.

The Court concluded that Fonterra was taking its responsibilities in respect of environmental matters seriously, and was attempting to fulfil its obligations in terms of the Accord through its supply agreements. However the Court considered that, if this type of case was to be avoided in future, Fonterra would need to consider how its regime could be enforced without the Court having to be involved in prosecution or enforcement actions.

It remains to be seen whether Fonterra will shift from what the Court described as a ‘counselling role’ (seeking to encourage farmers), towards a more active role in enforcement (such as refusing to collect or pay for milk, or imposing penalties for environmental non-compliance).

Evidence established that the farm’s effluent sump was inadequate to deal with wash-down from each milking. There was evidence that the irrigator had stalled and caused ponding on several occasions, and that it had been subject to breakdown and nozzle splitting. Therefore the Court was also not satisfied that the farm could operate so as to avoid ponding of effluent or prevent effluent reaching natural water without further electronic monitoring and controls (such as fail-safe devices to ensure the irrigator did not stall) over the effluent irrigator.

The Court accepted the Council’s view that an interim enforcement order was appropriate. The Court required several minimum requirements in order for the current effluent system to continue to be utilised, including certification that the system could comply and that the irrigator was able to operate at all times. The Court indicated that if it could be satisfied that these steps could be taken, then more significant changes proposed by the Council, such as new ponding systems, might not be necessary.

The Court required weekly reports by the Council to establish a baseline regarding the extent of the issues on the farm and improvements or changes that could be made on site.

Round 2 – 1 October 2013, [2013] NZEnvC 235

The clear evidence in the weekly reports was that ongoing breaches of the Plan and the resource consent were occurring. The Council had engaged MHW Global to attend the site and undertake measurements and surveys of the existing effluent system to ascertain its capacity. The results indicated that there was insufficient capacity in the system to deal with the effluent produced from 700 milking cows. This meant that the system did not have the capacity or the abilities indicated in the company’s original application for resource consent.

This supported the need for an enforcement order. Nevertheless, the Respondents contended that they should be entitled to continue the discharge of effluent and milking this number of cows, notwithstanding the environmental impacts, because the milking season had already started.

That situation was not acceptable to the Court. It warned the Respondents that de-stocking of the farm to align with the system’s capacity could be required. The Court stated that it was a matter of urgency that the operation of the farm be regulated, and that time was of the essence. The requirement for weekly inspections was modified to monthly inspections, to be carried out until further order of the Court. The costs of all inspections were to be charged at standard Council rates and paid by the Respondents.

The Court made an Interim Enforcement Order and provided for it to be reviewed at a later date. The Order required the respondents to obtain expert certification of the effluent management system to provide for: 700 cows (or such other number specified); wash-down from 3 days of effluent; exclusion of stormwater; the sump to be cleared to enable 10m3 to be available at the commencement of each milking; the sump not overflowing or ponding; capacity at all times to provide 3 days reserve storage; and effluent irrigators that operate at all times within the parameter of their application rates.

Round 3 – 17 April 2014, [2014] NZEnvC 089

On review of the interim enforcement order it was agreed by the parties that no particular changes to the effluent management system had been adopted, apart from three 30m3 effluent containers being connected to the system.

Since the interim enforcement order was made the Council had commenced a series of prosecutions for continuing breaches but it had not explicitly applied to cancel the resource consent (which the Court considered curious since its previous decisions had invited the Council to consider this course of action).

The Court repeated that it was not satisfied that the Respondents could meet the conditions of consent and the requirements of the RMA with the existing effluent storage system. The Court stated it was essential to make a permanent enforcement order that there be no re-stocking of the farm for the 2014-15 milking season until a new effluent system (with parameters prescribed by the order) was approved and installed. The Court directed that in the event that:

  • no effluent system was approved by 30 May 2014;
  • the approved system was not installed by 30 July 2014;
  • the farm was re-stocked in breach of the order;
  • and/or the certification reports required indicated ongoing problems with the operation;

then the Council might either seek further enforcement orders, or commence further action for change or cancellation of the resource consent or other orders as it saw fit. In particular, such further orders might include seeking to de-stock the farm, or seeking to cancel the resource consent.

It is understood that Mr Woolley has appealed against the enforcement order and a hearing will be held on 16 August.

Conclusion

This latest Environment Court case reinforces that Courts have extensive powers to enforce breaches of the RMA, and to tailor enforcement solutions to suit individual cases. However, in this case the contemplated solution appears to rely on the Council being prepared to apply for the necessary orders.

Further developments are awaited with interest.

Meanwhile, Mr Woolley has a mammoth task ahead to achieve compliance with the Enforcement Order. Until a new effluent system is installed, and in order to avoid further prosecutions for breach, he will need to implement an extremely high level of site management and potentially remove excess effluent from the farm in extreme weather conditions. It is possible that significant de-stocking, or ceasing operation of the farm and surrendering resource consent, may yet prove to be a more viable option.