Duncan Cotterill recently acted for an engineering firm in a successful defence of a prosecution under the Resource Management Act 1991 (RMA).
Canterbury Regional Council (the Council) brought proceedings against Eliot Sinclair and Partners Ltd (Eliot Sinclair) in relation to permitting the discharge of sediment laden water from a subdivision project at Duvauchelle Bay (the site).
The case was heard in the District Court before an Environment Court judge and sets an important precedent for the engineering industry and those involved in development and subdivision projects as to the requisite degree of skill, care and diligence reasonably expected of a competent professional.
The charges against Eliot Sinclair were brought against the background of guilty pleas by both the contractor who undertook the earthworks at the site and the development company itself. Both had accepted liability for the discharges and were fined accordingly. These proceedings appeared to be an attempt by the Council to obtain a 'third scalp' for the offence, by establishing liability for third party consultants where breaches of the RMA occur in projects they are involved in.
Eliot Sinclair is a surveying, engineering and planning consultancy which, in this case, provided professional services to the development company. There was a link between the development company and Eliot Sinclair, which had common directors. Eliot Sinclair initially designed an Erosion and Sediment Control Management Plan (ESCMP) for the subdivision project and was later engaged to act as engineer during the infrastructure construction phase.
It was common ground between the parties that the discharges had occurred. The issue was whether Eliot Sinclair had "permitted" that discharge by failing to do enough to prevent it. Under the RMA, the offence is "permitted" if the party charged allowed, acquiesced, abstained from preventing or tolerated the act or omission.
The ESCMP detailed that during the subdivision's construction phase, the main method of controlling discharges was the installation of a sediment retention pond at the bottom of the site. This was intended to catch run off from the site and discharge it to the stormwater drainage system via stormwater pipes.
Amendment to plan
Shortly after the construction commenced, it was identified that the construction of stormwater pipes was not going to be completed on schedule and therefore a temporary amendment to the ESCMP system was proposed by Eliot Sinclair. The amendment resulted in a sediment retention pond being used to contain run-off, together with a secondary flow path.
This system worked satisfactorily until heavy rain on 20 April 2013. Two days earlier, the contractor had cut a trench through the bund wall for the purpose of laying stormwater pipes. This meant that the pond could not retain storm water. The Council issued a formal warning after sediment entered Duvauchelle Bay during this event.
Events post 20 April 2013
In the period 20 April 2013, Eliot Sinclair took a proactive approach involving numerous site visits and written correspondence to the contractor detailing the work which needed to be done to bring the system up to compliance. This letter also prohibited the contractor from starting any further earthworks until the sediment control requirements were in place.
In the following days, the contractor completed some, but not all, of the required work. Eliot Sinclair was frequently on site providing directions to the contractor. On 3 and 4 May 2013, Eliot Sinclair discovered that the contractor had left the site the without completing critical work, being to fill the cut in the pond with lime-stabilised clay, despite having given assurances that it would.
On Sunday 5 May 2013, Eliot Sinclair again visited the site and found that the cut had been filled, but that a porous fill material had been used instead of lime stabilised clay. Eliot Sinclair was extremely concerned about this mistake and arranged to meet the contractor on site the next day.
The 6 May 2013 rain
Unfortunately, on the morning of 6 May 2013, particularly heavy rain allowed water to escape and discharge into the harbour. The Council argued that Eliot Sinclair had permitted the discharge in two ways:
- By the amendment to the ESCMP; or
- By its responses to the contractor's inadequacies between 20 April and 6 May.
These issues largely came down to expert evidence called by both sides. It was held that Eliot Sinclair did not permit the discharges by virtue of either:
- The decision to amend the ESCMP:
- The alteration decision was a proper decision for the engineer to the contract to make.
- Eliot Sinclair had no reason to expect that there would be a lack of performance on the part of the contractor and consequent delay in getting the initial system operational.
- The temporary sediment control system was adequate.
- There were clear benefits in getting on with the construction during the summer.
- Eliot Sinclair had set up a rigorous supervisory system, involving regular site visits, excellent record keeping and liaison with the Council.
- The responses to the contractor's inadequacies:
- Judge Dwyer held that from the very outset of the construction programme, Eliot Sinclair took a responsible and systematic approach to execution of its consultant engineer's function. Both experts agreed that Eliot Sinclair had clearly identified the works to be done by the contractor and given clear instructions to the contractor. It had also halted all works on site that were not related to sediment control. Eliot Sinclair visited the site on numerous occasions (a total of 11 visits in the 16 day period) and received direct assurances that the required work would be done.
- Eliot Sinclair could not have anticipated that the contractor would blatantly breach design specifications and direct instructions.
- It was not Eliot Sinclair's role to have a representative on site to ensure that the contractor begun the work as the Council submitted. This was inconsistent with the Council's own expert who had no criticism of Eliot Sinclair's actions after 20 April.
- There was also no practical alternative available but to continue working with the contractor, especially given the remoteness of the site.
Overall, the judge was satisfied that Eliot Sinclair acted with the skill, care and diligence of a competent, professional consultant engineer and therefore concluded that Eliot Sinclair was not guilty of permitting the discharges.
A consideration of this case is a valuable for those in the engineering and development industries. The outcome demonstrates the importance of clear directions, guidance and record keeping. Importantly, the Court accepted that the engineer's role is not to stand over the contractor, nor can it be expected to do the work itself.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.