New Zealand: Case Note: Waikato Regional Council v Hydro Energy (Waipa) Limited And Robert Wilkin Neal

Last Updated: 14 January 2008
Article by Helen Atkins

(District Court Hamilton, Judge Smith, CRI 2007-019-3364, CRI 2006-073-450, CRI 2006-073-447, 12 October 2007)

This is a recent sentencing case that illustrates that in appropriate circumstances the fines the Court is prepared to impose can be substantial.

The Facts

A guilty plea to nine charges under the Resource Management Act 1991 (RMA) was entered by Hydro Energy (Waipa) Limited (HEWL). Three charges related to excavation and soil disturbance in and around the Waipa River and Waiharakia Stream and the remaining six to breaches of abatement notices.

Mr Neal pleaded guilty to three charges, excavation of the Waipa River bed, diverting the Waiharakia Stream and soil disturbance in the Waipa River Gorge.

The facts in the matter were complex and the Judge took the somewhat unusual course in a prosecution where a guilty plea is entered of  undertaking a site visit  Importantly at the time of the site visit some of the works that had been undertaken were significantly greater than at the time the charges were laid. The Court therefore relied on photographic evidence in relation to these works. 

A summary of facts (some 27 pages) was largely agreed. However there was a hearing on disputed facts that the Court ruled on separately to sentencing.

HEWL was seeking to build a run-of-the-river hydro-electric power scheme in the upper Waipa River valley near Te Kuiti.  Mr Neal was the earthworks contractor for HEWL. The power scheme held a series of consents from the Regional Council and Waipa District Council. The Judge had this to say about the nature of the consents:

Perusal of these consents shows that they are particularly generic in their terms and essentially provide for a consent on the basis that construction will not commence until a CMP [construction management plan] covering all the critical matters of regional concern is provided.  That CMP must be approved by the Regional Council, based upon technical certification ...

The actual mechanism for such technical certification and/or approval, however, is not set out in the consent.  Nor are the particulars of the content of the CMP or the various requirements to be achieved. Not unnaturally, given the size and complexity of this project, this led almost immediately to ongoing problems between HEWL and the Regional Council.

In relation to works affecting the Waipa River it was not alleged that there would have been any significant effect upon the Waipa River as a result of these works. The Judge also found that the Stream was already compromised. This is to be contrasted to the effects of constructing a track down the Waipa Gorge which the Judge accepted the Regional Council estimate that around 32,000m2 of land was either cleared or subject to the side cast work (ie 8,100m2 for the Rock Spill).

The abatement notices generally applied to both the gorge track and the Waiharakia Stream and are essentially related to sediment and erosion control mechanisms not being installed at various periods. While there was debate about the nature and extent of the abatement notices between HEWL and the Regional Council, it was accepted that that notices were not complied with and the non-compliance was for a longstanding period.

The Court discussed whether or not it ought to make enforcement orders as part of the suite of matters it can consider in such cases. The input from the parties, particularly the Regional Council, was influential in the Court's decision on making orders. The Court concluded that orders in relation to remedial works related to the Rock Spill ought to be made.

Sentencing Principles

Having traversed the facts and related issues the Court then went onto consider the relevant sentencing principles.  The sentencing principles considered by the Court are those laid down in the seminal case on RMA sentencing - Machinery Movers Limited v Auckland Regional Council [1994] 1 NZLR 492, and the provisions of the Sentencing Act 2002.  Of particular note the Court paid due attention to the following Court of Appeal statement in Machinery Movers:

In combination these changes [to the RMA] constitute a clear legislative direction for the Courts to ensure that higher penalties are imposed which would have a significant deterrent quality. If fines are too low they will be regarded as a minor licence fee for offending.

In terms of the enforcement orders for remedial works that the Judge had already flagged, these were considered to constitute "reparation" in accordance with the Sentencing Act principles. This was important in this case because  the defendant argued any costs incurred for remediation works  should be deducted from the amount of the fine that the Court would otherwise impose.

The Court concluded that the remedial work it was to order would not overcome the environmental damage caused.  Rather its impact would be to reduce the potential impact in the future of the Rock Spill. 

Setting The Fines

The Court accepted the agreement of the parties that a fine was the appropriate course of action to take in sentencing. The Court then considered the various matters set out in the Machinery Movers case and the Sentencing Act including:

  • Nature of the environment affected (in this case  the Rock Spill).
  • Extent of the damage inflicted (again the Rock Spill was the worst affected).
  • The deliberateness of the offending. (A distinction between the company and its contractor was drawn. The former knew there was no approval for the works. The latter ought to have known or found out but clearly did not know from first hand knowledge. However, in the scheme of things the deliberateness of offending was the highest end of the scale particularly for the company.)
  • The attitude of the defendants. (Again a distinction between the two defendants was made. Mr Neal was helpful with investigations and showed genuine remorse for his actions. The Court did not form the same view about HEWL however held that this issue was a minor aggravating factor linked closely to the issue of deliberateness.)

The Court then weighed up these factors and formed a view as to the starting point (ie a base level of fine) for each of the charges it was considering. At the lower end of the scale for some of the soil disturbance matters the starting point was $5,000. This rose to $70,000 for the Rock Spill. The abatement notice offences sat somewhere in the middle at $30,000.

After reflecting on the legal and other costs being sought by the Regional Council the Court went on to consider the matters in totality. In total the fines and costs the Court had reflected on would amount to some $220,000 ($48,800 in costs and some $100,000 in remedial costs). The project value was in the order of $15 million. Therefore the total financial penalty would be in the region of 2.5% of the cost of the project. The Court did not consider that this percentage was out of keeping with the type of offences that had occurred. In fact the Court said something in the region of $500,000 would be more in keeping.

The Court then went on to apportion the penalty to the two defendants and concluded that the maximum that Mr Neal ought to pay, taking into account all the factors including his ability to pay, was $30,000. The total penalty against HEWL was in the order of $130,000 plus remediation costs which were at the estimated to be around $100,000. 

Of note is that the remediation costs could in fact be substantially higher but the Court concluded that even if they were as high as $300,000 this would not affect the outcome on fine and costs.

Phillips Fox has changed its name to DLA Phillips Fox because the firm entered into an exclusive alliance with DLA Piper, one of the largest legal services organisations in the world. We will retain our offices in every major commercial centre in Australia and New Zealand, with no operational change to your relationship with the firm. DLA Phillips Fox can now take your business one step further − by connecting you to a global network of legal experience, talent and knowledge.

This publication is intended as a first point of reference and should not be relied on as a substitute for professional advice. Specialist legal advice should always be sought in relation to any particular circumstances and no liability will be accepted for any losses incurred by those relying solely on this publication.

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”

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
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 you may opt out by clicking here

    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.

    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.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    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.

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