This article from Duncan Cotterill discusses the increasingly tougher sentences being handed out by the Courts for errant dairy farming activities, and the measures farmers should take to avoid falling foul of their local council. First published in NZ Dairy Exporter July 2010
By Hans van der Wal, Associate
What is the message for farmers?
What the councils are after is making sure that you don’t put more effluent on that what the actual pasture itself can absorb – there’s a double benefit to that, because it means you’re turning all the effluent back into pasture growth and there’s no effluent left to pollute the environment.
This means having enough storage not to have to irrigate onto wet ground, having an irrigator that can put effluent on thinly enough and a big enough disposal area to avoid ponding or runoff, and a contingency plan for breakdowns.
The bottom line is that the ultimate responsibility rests with farm owners, so they must keep a closer eye on sharemilkers and labourers. Farmers have to ensure their workers have all the necessary training, instructions, information and equipment they need and are using it properly.
If farmers can show that there was nothing more that could have done to avoid the pollution incident, it will be in their favour. But the less action, the harder they will get hit.
The message for farmers is: be proactive:
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Don’t wait until you get an abatement notice and certainly don’t wait until charges are laid
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Use the winter dry-off time to make sure your system’s going to make it as easy as possible to avoid ponding and runoff
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Make sure your cow numbers, the size of your storage pond, the size of your effluent application area and the irrigator capacity all line up
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Get the consents or approvals you need to upsize.
It’s never too late to upgrade, even if you have already received a warning or notice from the Council. And if you are prosecuted, the Court will be all the more lenient because of the steps you have taken.
Why are the Courts starting to hand out increasingly tough sentences?
Both Courts and Councils are running out of patience and neither thinks all farmers are taking the issue seriously enough. Councils are tired of their abatement notices being ignored. They want to stop farmers using sub-standard systems that are doomed to fail – systems that allow ongoing pollution.
In my experience, dairy farmers do care about environment and don’t set about deliberately polluting it. Rather, some allow things to creep up on them, not keeping tabs on what they know they and their sharemilkers should do to avoid polluting. . And there are some who may still regard it as a low priority.
What is the trend with penalties at present?
I think the Courts are going to keep ratcheting up the fines until they’re convinced dairy effluent’s being taken seriously enough. The Government has given them plenty of room to do so, with a 300% increase in the maximum fines for companies and a 50% increase in those for individuals. Under today’s maximum fines the maximum for the Whataroa case would have shot up from $600,000 to some $1,800,000.
Is there any downside to upgrading systems?
In the long term, definitely not. It’s money you’re going to have to spend anyway to avoid ending up at the wrong end of a prosecution. The sooner you do so, the sooner you deal with the prosecution and fine risk.
One word of caution. If you’re in Canterbury, you’re generally going to need a resource consent if you want to apply effluent to land. If you want to change the size of your disposal area, or if you want to increase the number of cows you’re milking, you’ll need to apply to the Council to do that too. Remember to do it before you make the changes – otherwise you’re likely to get prosecuted.
In other regions, which have permitted activity rules for effluent, remember they are coupled with strict conditions designed to make sure you only put on what the pasture can absorb. They can differ from region to region, so make sure you have the one that applies to your farm Always make sure you and anyone else who uses your system knows what the conditions are and that your system is designed to comply with them.
* Hans van der Wal is an environmental law specialist with national and trans-Tasman law firm Duncan Cotterill. H.vanderwal@DuncanCotterill.com
