A recent Environment Court case has set an important precedent for the engineering industry and those involved in development and subdivision projects.
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 Duvauchelle Bay.
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 accordingly.
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 involved.
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.
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