By Horizons Regional Council,Richard Rennie

Copyright farmersweekly

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The lawyer for a Manawatū forestry company found not guilty after multiple prosecutions by Horizons Regional Council says the case highlights how major flaws in council process and interpreting national regulations cause significant cost and disruption to forestry operations.

Barrister Fletcher Pilditch KC defended forestry company John Turkington Limited (JTL), charged with multiple breaches of the Resource Management Act during forestry operations in northern Manawatū. The allegations spanned forestry activities between 2019 and 2020.

All up, the company faced 20 charges for breaches across three sites but was either found not guilty or had charges dismissed for lack of evidence.

While welcoming the court outcomes, Pilditch told Farmers Weekly the case highlights some significant shortcomings in both the investigation process, and in how councils are applying national environmental standards for forestry.

“In many cases those prosecuted may just choose to plead guilty. The cost of the fine is usually significantly less than the cost of defending the charges in court because of the cost of lawyers and expert witnesses.”

The prosecution of JTL highlighted the dilemma faced by forestry companies as they harvest forestry in areas where historically foresters were encouraged by local government to plant trees to the edge of waterways to prevent erosion.

The difficult but necessary task also now has the National Environmental Standards for Plantation Forestry (NESPF) demanding a light footprint at harvest to minimise waterway damage in the process.

Many of JTL’s charges concerned earthworks’ impact on waterways and use of machinery near those waterways.

While the NESPF permit their use, subject to companies doing their best to minimise damage, Pilditch maintains Horizon’s staff lacked the skills to properly interpret the site and the efforts JTL had made to minimise damage.

“They were dealing with a company of very good standing, respected in the industry, even used by council themselves to demonstrate procedures, but there was not trust they had made the efforts to minimise harm to the environment, which they had.”

He said that lack of understanding could have been better addressed through other enforcement options available to the council including abatement and mediation, allowing parties to fully explain operations and methodology, and gain a common understanding of the impact of the new national regulations.

That process could have also given all parties the opportunity to air issues through the Environment Court, which could then issue a ruling in the matters in issue and would have helped everyone’s understanding.

“Instead, they charged the company with criminal offences, so of course the shutters come down, all dialogue stops at that point.

“Prosecution should really be the last resort.”

Pilditch believes the case highlights several missed opportunities for a better outcome, and lessons for the council.

“In the recent trial in 2023 the council witnesses responsible for the inspections that led to the charges had next to no experience in forestry harvesting experience. This was ultimately fatal to the prosecution case.”

Pilditch hopes the council learns from this and ensures that when inspecting and investigating they bring appropriate expertise with them.

He said the failure to do so in this case resulted in lengthy and costly litigation for everyone, including ratepayers and taxpayers.

“Presently there is a disconnect between those rules [NESPF] and how councils manage and interpret them.

“Prosecution is not the best place to come to a common understanding and work forward with that.”

New green standards have muddied rules: Horizons

Horizons Regional Council says the new National Environmental Standards for Plantation Forestry have bought challenges for all parties involved in the JTL prosecution.

In a written response to Farmers Weekly questions, Horizons regulatory manager Greg Bevin noted JTL’s charges were the first time the National Environmental Standards for Plantation Forestry (NESPF) had been tested in court.

He said the NESPF bought challenging, ambiguous standards with it that are “open to interpretation”.

This was problematic for both forestry operators and regional councils.

“It there is not clarity around what is required, operators and councils may have differing interpretations around what is and is not compliant with the standards.

“If this cannot be resolved, as happens with other pieces of regulation and legislation, courts may be left to make a decision on correct interpretation and create case law for others to follow in the future.”He said in the JTL case the court had to determine if forest harvesting techniques had “minimised” disturbance on waterway margins. This had come down to the harvesting methodology chosen, as opposed to the extent of environmental impact associated with harvesting.

“The standards [of the NESPF] do not stipulate what actions are considered enough to have ‘minimised’ disturbance, or how extensive any minimisation should be.”

JTL counsel has argued Horizons had other options than prosecution at hand to help it interpret the new standards, including abatement and mediation.

Bevin said all cases considered for prosecution were assessed on evidential sufficiency and whether it was in the public interest.

“Horizons conducts a review after every prosecution to determine if there are any lessons learnt which can be applied in future.”