Cross-Examination: The Responsibility of Local Councils
CROSS-EXAMINATION IS A BLOG SERIES ABOUT CURRENT LEGAL ISSUES IN NEW ZEALAND PRODUCED BY EJP COMMUNICATIONS VOLUNTEERS.
It is widely accepted that an important function of local councils is to serve their constituents. The matter of the Eltham Eader, however, illustrates how negligence, mismanagement and poor communication can cause residents to feel disregarded by their councils.
In 2013, with the permission of the South Taranaki District Council, Fonterra dumped 3 million liters of buttermilk and 150 000 liters of milk tainted with drilling waste at the Eltham oxidation plant. This was necessary in order to deal with spring’s record milk production.
The oxidation plant, also known as an eader (earthen anaerobic digester), created an abhorrent smell that had residents of the nearest residential area complaining of headaches, worsening asthma, aching muscles and depression. Tests conducted on 12th December 2013 found that toxic gases like Hydrogen Sulphide and Methyl Mercaptan were leaching from the eader.
Essentially, the cover of the pond was inadequate. A report conducted at the request of the District Health Board by Louise Wickham, an Air Quality Professional, found the eader cover was not functioning as impermeable. Moreover, the previous repairs to the eader were rudimentary, leading to the escape of gases.
It was only in September of this year that the Taranaki Regional Council charged the South Taranaki District Council under the Resource Management Act 1991. The South Taranaki District Council admitted to breaching s 15 of the Act by discharging contaminants into the environment on repeated occasions between March and May 2014. Eight other charges were withdrawn. The maximum penalty for offences for the Council is a fine not exceeding $600 000.
The South Taranaki District Council is now moving to decommission the eader after pumping out the majority of its contents. The Council has stated that residents will not be compensated for any distress or loss as a result of the events.
However, the poor communication and mismanagement of the matter has created a hostile environment in which residents feel justice has not been achieved. Mark Kelly, spokesman for the Eltham Eader Action Group, states, “All the agencies involved have proved themselves woefully inept and mediocre at best… For a group of ordinary folk to feel voiceless, alone and marginalized should worry us all and illustrates a severe system failure.”
The system of holding councils criminal responsibility has been demonstrably followed through the prosecution of the South Taranaki District Council. However a criminal conviction and fine will not placate the nearby residents who seek further accountability, contrition and responsibility from district council personnel.
The District Council’s negligence in allowing the eader to dissipate potentially harmful toxic gases and subsequent mismanagement begs the question, how the affected residents can access justice for the harm they feel has been caused.
Analogies can be drawn to the negligence of councils in leaky building cases. There, councils have been successfully sued for their negligent inspection and certification of buildings. Many cases have resulted in building owners receiving damages for necessary remedial work. Therefore, the obvious (albeit expensive) route would be to sue the council in negligence with the ultimate goal of compensation for affected residents. In this instance the residents would have to show the council had a legal duty to care that has been breached, which must have caused loss as well as the loss being sufficiently proximate. The expense of bringing such an action however would prove insurmountable and impractical for most residents. Had a similar negligence occurred in central Auckland, it is likely action beyond a criminal prosecution of the Council would be pursued.
The financial burden of a civil suit puts justice outside the local residents’ means, and illustrates the power imbalance between councils and residents. Where residents simply cannot afford civil action, cases of negligence may go unanswered.
A sentence is due in early November on the prosecution of the South Taranaki District Council. However, this will be of little satisfaction to local residents. After all, it is the putting right that counts.
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 Resource Management Act 1991, s 339(1)(b)
 Air testing by the Taranaki RC at the edge of the eader detected Methyl mercaptain, ethyl mercaptan and dimethyl disulphide. Hydrogen Sulphide recorded down wind of the eader was at more than 1000 times the recommended safety limit.