Grape marc charges too late?

Seaside town throws out the welcome mat

A major winemaking company in Marlborough facing pollution charges could have the case chucked out if a judge finds the council did not act fast enough.

Babich Wines and its viticulturist John Sowman have denied charges of discharging winemaking byproduct grape marc onto land where it could leach into waterways.

An anonymous complaint sparked the court case, the first of its kind pursued by the Marlborough District Council, which laid charges the day after the November earthquake.

But Babich Wines and Sowman’s lawyer, Jonathan Eaton QC argued the charges were ‘‘timebarred’’, meaning the council missed the legal deadline in pressing charges and the charges should be ditched.

Eaton challenged the charges after cross-examining witnesses at an Environment Court pre-trial hearing in Blenheim on Thursday, with the defendants’ attendance excused.

Former council compliance officer Lauren Kensington told the court she visited Babich Wines’ property in Waihopai Valley in May 2015 after an odour complaint.

She could not find any breaches causing odour but discussed a grape marc pond on the property, which appeared to be wellcontained, with Sowman she said.

Marc was left to settle in the pond before being stored in tanks, and would eventually become compost.

Sowman said the pond was lined with compressed clay, and he would ensure it was not leaking.

Kensington told Judge John Hassan on Thursday clay was a suitable lining, also used in ponds for dairy farm effluence.

She knew the danger of marc leaching into waterways was increased during a wet harvest, but believed Sowman when he said he would check for leaks.

A year later, during harvest in

‘‘All they had to do was file the charges a few days earlier and not roll the dice ...’’ Jonathan Eaton QC

May 2016, Kensington received an anonymous phone call from a neighbour concerned about the leachate pond.

The neighbour said there was slime in their groundwater well and they believed it was a contaminant from Babich Wines’ Waihopai Valley property.

Later that day Kensington forwarded the anonymous complaint to environmental protection officer Reuben Ferguson.

Ferguson told the court he inspected the site on May 17, 2016 having been caught up with other investigations in the days before.

He believed the clay lining of the leachate pond was leaking, but needed more evidence to be sure.

An independent scientist conducted a geotechnical investigation and took water samples from a groundwater bore near the Omaka River to check if the water was contaminated.

In August, the scientist reported a link between the grape marc pond and the slime in the well, and after a committee meeting the council decided to lay charges. The charge sheets were dated November 15, but could not be electronically received by the court until two days later because the courthouse was closed after the November 14 Kaiko¯ura earthquake. It reopened on November 17.

Eaton said the council did not lay the charges quickly enough.

Under the Resource Management Act, a regional authority had to lay charges within six months after it first gained knowledge a contravention of the act.

Eaton claimed the council knew there was a leak from the anonymous phone call on May 12, which would mean the council missed the six-month deadline by at least three days.

‘‘All they had to do was file the charges a few days earlier and not roll the dice ... [if the charges were dropped] that’s a consequence entirely of their own making.’’

Judge Hassan said councils were typically under-resourced for such investigations and taxpayerfunded institutions and any other council may have responded the same.

Prosecution lawyer Antoinette Bezier said the investigation could not commence until Ferguson had visited the site to make sure the complaint was based on fact.

Fellow prosecution lawyer Jackson Webber said there would be profound consequences if the court found the six-month period should start when the first complaint came in.

If councils rushed to lay charges for breaches of the RMA without collecting enough evidence, cases were more likely to fall over when the evidence was tested in court, he said.

Judge Hassan reserved his decision about whether the charges should proceed to a judge alone trial, and remanded the case to a nominal date on November 6.

Meanwhile, grapegrower Michael Gifford pleaded not guilty to six charges of illegal discharge of grape marc, and one charge relating to an abatement notice at Environment Court on Thursday.

He elected a jury trial and would reappear on November 20 for a case review hearing.

Meanwhile, leading Marlborough wine producer Peter Yealands and his son’s company GrowCo are also facing charges under the RMA for offences relating to the discharge of grape marc and grape marc leachate onto land or water.

Both Yealands and GrowCo, who have denied the allegations and have elected a trial by jury, would also appear on November 20 for a pre-trial hearing.