A Taranaki farming couple who said they could not afford to pay a $45,000 fine for dirty dairying have lost their appeal against the penalty.
John and Alison Vernon, of Midhirst, were sentenced in the Environment Court in July, after earlier pleading guilty to allowing untreated dairy effluent flow into a tributary of Rum Keg Creek.
A hose that the couple had disconnected from a mobile irrigator had discharged the effluent, which was allowed to pool and find its way into the creek.
The Vernons, who farm about 100 dairy cows on 144ha, appealed the sentence to the High Court in November.
The couple's counsel Patrick Mooney argued the fine was too hefty.
He told Justice Rebecca Ellis the Environment Court had been wrong in its assessment of the seriousness of the offending, did not account for the couple's remorse or their ability to pay the fine.
In her decision dismissing the appeal last month, Justice Ellis said the only seriously arguable grounds for an appeal was the couple's ability to pay.
She found the offending involved "recklessness on behalf of the Vernons" and was reoccurring.
Justice Ellis did not accept that money spent fixing the problem amounted to an expression of remorse and noted the starting point for the fine imposed - $60,000 - was only 20 percent of that available to the judge.
In considering the couple's ability to pay, Justice Ellis said they operated a moderate-sized dairy farm and were not beneficiaries.
But she accepted they were on "credit watch" with their bank.
"I also accept that, having just loaned them over $200,000 to bring their effluent system up to scratch, the bank has declined to lend them further funds to pay the fine," she said.
"There was no direct evidence, however, that they are unable to borrow from a second or third-tier lender, or that their bank would not release some of their security for that purpose."
Justice Ellis acknowledged it would be difficult for the Vernons to pay the full amount of the fine immediately, but said the couple had the option of paying the fine in instalments over five years.
She said that would require an additional expenditure of only $750 a month which was manageable.
The maximum penalty for such an offence is two years imprisonment or a $300,000 fine, together with further fines of up to $10,000 per day if the offence is a
continuing one, as it was in this case.
Justice Ellis said imprisonment was not an option as it would take the farmers away from their struggling operation.