New Zealand: Dairy Matters: effluent discharges

Last Updated: 16 September 2015
Article by Dan Winfield

In this edition we look at:

  • Big fines now also for "little" offences: a brief look at how fines for minor effluent discharges are on the increase.
  • Effluent discharge fines and low payouts: we consider the level of effluent fines in view of the current low dairy payouts.
  • Can dairy cows discharge effluent?: a heads-up of Forest & Bird's High Court declaration application that could see resource consents needed for all dairy farming.

Big fines now also for "little" offences

Small, one-off dairy effluent discharges do not tend to grab headlines in the same way as the fines of $100,000 to $200,000 fines imposed for serious cases of multiple and on-going dairy effluent discharges. Farmers should take note that higher fines are no longer just for only the really bad, serious or repeat offenders; good operators who have a momentary lapse now also face significant penalties.

Specifically, in a number of recent cases the Courts have noted that the maximum starting point for the least serious category of offending has increased from $30,000 to $40,000. These cases fall into the lowest of the three categories of seriousness, which is reserved for one-off incidents not part of a wider systemic problem, without any significant or lasting environmental harm. A starting point at or near $40,000 applies where effluent did enter surface water, even if no demonstrable damage occurred. Even with the maximum credit that might be applied for good character, remorse and early guilty plea, the end fine for such cases is still frequently over $25,000. If there has been a similarly minor incident in the preceding three years the fine will quickly top the $30,000 mark.

Starting points will be lower where the effluent did not reach surface water, but even for those cases starting points below $20,000 are becoming increasingly rare and end fines significantly below $15,000 are correspondingly rare as a result.

All of these involve offences for which the person being convicted and fined need not have had any negligence or intent, but is held vicariously liable for an employee's or contractor's slipup. Invariably they cannot avoid liability because there were some proactive steps that with hindsight they could have taken which would have avoided the discharge. Examples include better training and monitoring of the employee, increasing the size of storage ponds or requiring staff to monitor irrigators frequently to avoid ponding.

The upshot is that any dairy effluent-related non-compliance should now be treated as a significant incident with potentially serious liability consequences. This trend will not be reversed. Farmers need to be more proactive than ever to ensure that all infrastructure, training, management and systems meet industry best practice for avoiding ponding, runoff and other associated breaches. These costs are likely to be smaller than the steadily increasing fines that would result from even minor non-compliance.

Welcome to Dairy Matters, Duncan Cotterill's update on environmental case law and regulatory developments of interest for the dairy sector.

Effluent discharge fines and low dairy payouts

Many dairy farmers coming up for sentencing now are facing fines in the tens of thousands and some over $100,000 against a background where their business is making a loss due to low dairy payouts. A fine that might have stung a bit two years ago has suddenly become very painful indeed. Sentencing for environmental offending is like any other offending, subject to Section 40 of the Sentencing Act which requires that the Courts have to take into account a defendant's ability to pay a fine when setting the end penalty.

In a number of cases the Courts have been provided with balance sheets showing a dairy farming business that is highly over-leveraged without any reasonable prospect of sufficient income to start rectifying that. These pleas have not fallen on particularly sympathetic judicial ears, with the Courts generally noting that the defendants still appear to have significant equity and an ability to spread fine payments over some time. Further comments have been made to the effect that fines cannot increase and decrease along with the price of milk solids and that, for all the Court knows, there may well be very profitable years ahead.

Responding to falling dairy prices by deferring expenditure to put in place industry best-practice systems and infrastructure for reducing non-compliance risks is not an option, as no-one can count on lower fines due to the lower payouts. If anything, incurring such expenditure now would seem essential to avoid a fine that might prove financially terminal in the current market conditions.

Can dairy cows discharge effluent?

Forest & Bird has asked the High Court to declare that every time a group of dairy cows (or other stock) defecates, this is a "discharge" for the purposes of Section 15(1) of the Resource Management Act, the national freshwater national policy statement, and some specific rules that apply in the Lake Ellesmere Catchment. If the High Court agrees, potentially all dairy farmers nationwide will need to get special resource consents to allow their cows to "do their business", and will have to show that this is not inconsistent with national water quality goals before those consents can be granted. Farmers in the Lake Ellesmere catchment (including the Selwyn/Waihora Groundwater Allocation Zone) will have to jump through a few extra hoops related to contaminant goals for that zone as well, which may make getting such consents very difficult.

The Court is live to the seriousness of the possible ramifications, and has required that all regional councils, the Ministry for the Environment, Federated Farmers and a number of significant dairy industry stakeholders be served, so that they can tell the Court if they want to join in the proceedings. The Court also noted there may be others also affected more than the general public who could potentially join as well.

There are just over four weeks left for other parties to tell the Court if they want to join, so a decision is not imminent. It will be "business" as usual until a decision is released, which is still some months away. However, this is something that should not be taken lightly by those in the dairy industry, due to the serious consequences if the Court were to make the declarations Forest and Bird wants. It seems a co-ordinated well-focused case opposing the declaration is called for. Farmers should take an active interest in this matter and ensure their voice is clearly heard by the Court on this case.

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.

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”

Related Topics
Related Articles
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
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions