A recent Environment Court case has set an important precedent
for the engineering industry and those involved in development and
It relates to the standard expected of engineers consulting on
projects where there are issues about a contractor's
performance. The decision clarifies areas of responsibility and
indicates that the engineer's role is not to supervise or stand
over the contractor but to observe as frequently as circumstances
require and to give appropriate directions.
The outcome of this case demonstrates the importance of clear
directions, guidance and record keeping.
Duncan Cotterill successfully defended Christchurch firm Eliot
Sinclair and Partners Ltd against prosecution by the Canterbury
Regional Council under the Resource Management Act. The case was
heard by an Environment Court judge in the District Court.
Eliot Sinclair is a surveying, engineering and planning
consultancy which, in this case, provided engineering services to
the development company. There was a link between the development
company and Eliot Sinclair, which had common directors.
The Council prosecuted Eliot Sinclair for allegedly permitting
the discharge of sediment laden water from a subdivision project at
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 accepted liability for the discharges and were fined
The Council seemed to want a 'third scalp' for the
offence, by establishing liability for third party consultants
where breaches of the RMA occur in projects in which they are
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.
There had been ongoing failures by the contractor to follow the
directions given by Eliot Sinclair, with Eliot Sinclair responding
by increasing the frequency of its site visits and written
directions. Ultimately, a failure to properly fill a cut in the
sediment retention pond with the correct material resulted in the
discharge when it rained heavily.
The Council argued that Eliot Sinclair had permitted the
discharge but the Court found that the engineers had been
responsible and systematic in their approach. They had given clear
directions, guidance and been careful in record keeping.
The case clarifies the role of engineers in such situations
where things are not going to plan and the contractor is, for
whatever reason, not following directions.
It comes back to the powers the engineer has under the contract
and what is reasonable for it do in the circumstances, measured by
industry standards. In this case, the Court found that Eliot
Sinclair in its role could not have done anything further to
prevent the discharge.
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.
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