Appendix C: Judgment

 Waikato Regional Council v Amrat Bhana and Hira Bhana Co Limited

(Judgment as recorded by Karenza de Silva)

The defendants are charged for contravention or permitting a contravention of directions issued under s 329 of the RMA in times of water shortage.

I do not intend to spend any time in addressing the case against Mr Amrat Hira Bhana as he has no personal liability.

Environment Waikato was not able to prove beyond reasonable doubt that Mr Amrat Hira Bhana was personally liable because:

(a) The market garden was run by two brothers. The Council staff did not know whether the brothers operated the market garden jointly or if one was primarily responsible.

(b) Mr Amrat Hira Bhana’s evidence was that the running of the market garden was left to his brother. There was no evidence that water was pumped from dam 2 to dam 1 under the authority of Mr Amrat Hira Bhana or with his permission or consent and there was no evidence that Mr Amrat Hira Bhana knew or could reasonably be expected to have known that the water was being pumped from dam 2 to dam 1. Section 340(3) of the RMA provides:-

(3) Where any body corporate is convicted of an offence against this Act, every director and every person

concerned in the management of the body corporate shall be guilty of the like offence if it is proved—

(a) That the act that constituted the offence took place with his or her authority, permission, or consent; and

(b) That he or she knew or could reasonably be expected to have known that the offence was to be or was being committed and failed to take all reasonable steps to prevent or stop it.

In relation to the company, the background is as follows. The valley where the market garden owned by the defendants is situated has a series of market gardens along it. The valley has a small stream running through it, the stream is dammed at spasmodic intervals, each market gardener has water impounded. One therefore has a running stream and water impounded. It is self evident that if water is short and the upstream owner of a dam chooses to irrigate his property, progressively downstream users find themselves short with "Tail End Charlie" having no water. For this reason water management plans exist and Regional Council s, in this case Environment Waikato, very carefully allocate draw off quantities from public streams. It is also evident that this authority takes seriously its responsibility.

To put it shortly, matters indicate that one user exhibited the intention of getting in first and this could have had dire results for downstream users, however this matter was resolved before any great harm was done.

The Court is not condoning the offence because no harm occurred. The defendant company by its director, accepts that it received all notices from Environment Waikato. I am satisfied from having heard Mr Bhana fully that he was aware of the importance of the various directions.

The directions given indicate a worsening situation with tighter and tighter measures as the shortage increased. Mr Bunting told me of a chain of events which commenced with a water shortage direction of a No Take Day indicating that on a particular day no water was to be taken other than for domestic, firefighting or stock purposes. Mr Bunting explained the notices to the growers. I have no doubt that Mr Bhana knew what it was about. From midnight Sunday to midnight Monday, water taking must cease and this was to enable the informant to take meaningful measurements to assess the severity of the situation as it evolved. The no take notices did not specify that water was not to be taken for irrigation.

On 26 January 1994, a letter was sent concerning the situation as it worsened, and effectively that notice required reduction by 50%. The notice reducing irrigation by 50% again stated that domestic needs, fire-fighting and stock were not affected. The notice specifically stated that the no take day restrictions remained in force. Again Mr Bunting was meticulous in making sure that the irrigators under his wing knew what was going on.

The 3 February notice imposed a total restriction of taking of any water for irrigation from the Tutaenui Stream catchment. The notice erroneously referred to s 199 but was fully within the powers of Environment Waikato and it is perfectly clear what the notice intended to do. I am perfectly satisfied that no one would have been taken unawares. The notice made it quite clear that the No Take Day restriction remained in force. On this property there were two dams, dam 1 and 2. Both dams are within the catchment referred to in the notices. Both dams are fed by springs with contributing springs increasing in number.

The proposition by the defence is that water may at any stage be extracted from the lower dam and moved to the upstream dam provided the water is not used for irrigation. I do not accept that proposition. All the notices made it clear that the only purpose of extraction was for domestic use or firefighting or stock usage. In any event it is idle to suggest if water is drawn and stored and then used, that the initial extraction is not for irrigation. In my opinion the extractions are in breach of the water shortage directions. However, the notices dated 26 February 1994 and 3 February 1994 do not refer in relation to the No Take Day to irrigation at all.

It is patently absurd to draw water from one point and discharge to another and then claim that the water has not been used for irrigation. I am satisfied that had the stream or dam not been interfered with by a submersible pump, downstream users would not have been deprived. The downstream user noticed from time to time cessation of flow and investigated and found that this coincided with the operation of the pump on the defendant's property.

The company through its Director, does not deny that the pump was operating intermittently. He denies that it was operating for the time suggested and this goes to penalty not conviction. I find it a fact that the pump operated on Monday 14 February, a No Take Day, a day which was also covered by a total prohibition. I am further satisfied that the water was to be used for irrigation. The defendant was blatantly operating on a "me first basis". I find this strange because the defendant has a deep bore on its property which is not subject to the water shortage direction issued by Environment Waikato.

The defendant’s argument was that they were entitled to store water. There was double hearsay by Mr Bhana in relation to what his brother had said to a worker and what the worker had done in switching on the pump. I do not accept this and in any event I understand that the pump has to be watched very carefully so that it does not come to any harm. I am perfectly satisfied that the company was aware of what was going on, was aware of the notices and chose to store water regardless. The company is convicted of contravening a water shortage direction.

Judge Treadwell's sentencing note (as recorded by Karenza de Silva) is as follows.

The penalties provide two years’ imprisonment or a fine of $200,000.00. This is the only penalty under this Act. The penalty is not a sub-dividable penalty for the various offences against the Act. In the present case there is no question that the taking of water on a No Take Day was deliberate. I do concede that on days other than No Take Days there may have been room for misunderstanding that that recipients may have thought that provided they did not irrigate they could store water.

I am puzzled as to why the defendants did not use the deep bore on their property. I do not accept their explanation. Taking all matters into account, the factor which weighs most heavily is the public interest. There must be an element of good faith between all growers. This water is a scarce resource in times of crises. To allow one grower, a grower on a large scale, to get away with putting his interests first is a situation I find unacceptable. I find that the defendant company has got to face the music. The company appears to be in good heart, they have a profit of $500,000.00 per year amongst four families. The only factor that deters me from imposing a very substantial fine is that no harm came as a result of the breach as this was fortunately discovered fairly early.

I am conscious of the fact that this spring is only being replenished at the rate of 3 litres per second. I do however find that the water that was taken was significant in times of stress. The defendant company is fined $12,000.00 and ordered to pay costs of $1,000.00. Ninety percent of the fine to be paid to the informant.

Diagram

A copy of the diagram produced at the hearing is set out below: