New Zealand: Canterbury Regional Council v Eliot Sinclair: role of a competent engineering consutant

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Stephanie Grieve
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.