Farmer breached RMA
Matawai farmer John Richard Bracken has been found guilty of breaching the Resource Management Act after representing himself at a judge-alone trial in Gisborne District Court this week.
The prosecution, brought by Gisborne District Council, was similar to one at which he was also found guilty last August.
Delivering his decision on the trial this week, Judge Brian Dwyer said the council had proved a representative charge that between February 8, 2018 and February 8, 2019, Bracken allowed or permitted a discharge to land of a contaminant, namely sediment, in circumstances where it could (and did) enter water.
Bracken, 54, was remanded on bail for sentence on October 29 and warned he must provide a declaration as to his financial capacity not less than 10 days before.
Failure to do so could see him taken into custody.
As he did ahead of this trial, the judge urged Bracken to get legal advice.
The council alleged Bracken bulldozed an estimated 120 cubic metres of soil down the side of a hill at his property, enabling it to fall into a tributary (creek) of the Motu River that flows through a gully beneath.
The soil, estimated to cover about 700 square metres on the slope, is visible from State Highway 2 and Te Wera Road at Matawai.
A passing motorist — a woman then employed as an environmental water scientist for the council — noticed it on February 8 last year and stopped to photograph it from the roadside.
Judge Dwyer said there was evidence to satisfy all components of the charge.
Council inspectors, accompanied by a police officer, enacted a search warrant in July of last year.
That was outside the end date of the offending specified on the charging document so evidence they gathered (drone footage, photographs, and water samples) could have no probative value.
But it was relevant because it was confirmatory of what was reported in February.
The deposit of soil, which appeared to be side cast from a farm track, was in the same position and of about the same dimensions as first reported.
It was at least capable of entering water, be it ephemeral or permanently flowing (it did not matter). The witness had seen it actually entering the tributary.
While there was no evidence to confirm Bracken put it there, he at least permitted it because he himself told the court he was solely responsible for the running of the farm.
It was indisputable the soil was a contaminant. Cases involving discharges of sediment came before the court on a regular basis, the judge said.
He pointed to a National Institute of Water and Atmospheric Research report, which described sediment as the most significant and pervasive contamination in New Zealand waterways.
He was satisfied the discharge was not allowed by any statutory means or resource consent.
In evidence, the court heard of difficulties council had gaining access to inspect the property. Officers who first went there did not enter due to trespass warning signs.
Council compliance monitoring and enforcement manager Gary McKenzie said he phoned Bracken in June and asked to inspect the farm, but Bracken hung up without giving permission.
The following day, Bracken emailed him, demanding a property entry fee of $10,000, payable to the Helmbright Incorporation, and stating that entrance without would result in a $100,000 trespass fee.
Peter Helmbright is Bracken's wife Margaret's cousin and appeared in court for Bracken as a McKenzie friend during the previous prosecution. Bracken has recently claimed his 1680ha Matawai farm — valued at about $7 million and one of his many assets currently frozen due to tax fraud allegations, is now vested in an entity called the Helmbright Incorporation.
When Mr McKenzie later tried to serve notice of the charge on Bracken, he threw it on the ground.
Judge Dwyer addressed what he said “might lucidly be described as defences advanced” by Bracken, giving reasons as to why Bracken's contentions lacked merit.
The main issues raised by Bracken were the validity of the search warrant, particularly the use of a drone, and advice he believed a council officer gave him that the work, which caused the discharge, was permitted.
The judge said Bracken's pursuit of the council officer's advice was “dogged” and unnecessary.
The officer testified the work undertaken went well beyond any he discussed with Bracken.
It was irrelevant, the judge said. The prosecution was not about the earthworks that were done but about Bracken allowing sediment to discharge to water.
It was not clear to him whether Bracken pursued this issue in an attempt to divert the court from the merits of the council case, or out of genuine confusion, the judge said.
This offending happened about the same time as other RMA offending for which Bracken was found guilty by Judge Jeff Smith and fined $20,000 last August.
That earlier prosecution related to Bracken's construction of a three-culvert, bridge-type crossing over a different tributary stream that flows through another part of his property.
Five charges, which were proved, also included a similar charge to the one for which Bracken faced court this week.
Judge Smith dismissed six charges, criticising council staff for failing to notice those alleged offences were actually defined in relevant regional plans as permissible.