The RMA Quality Planning Resource

General procedure for service

The procedure for service of documents is set out in s352 of the RMA which states documents may be served by any of the following:

  • delivering the notice in person; or
  • delivering it to the usual or last known place of residence or business of the person; or
  • sending via pre-paid post to the address of the person at their usual or last known place of residence or business of the person; or
  • posting it to the Post Office box address that the person has specified as an address for service; or
  • leaving it at a document exchange for direction to the document exchange box number that the person has specified as an address for service; or
  • sending it to the fax number that the person has specified as an address for service; or
  • sending it to the email address that the person has specified as an address for service; or
  • serving it in the manner that the Environment Court directs in the particular case.

Where a notice or other document is to be served on a Crown organisation, it may be served by any of the following:

  • delivering it at the organisation's head office or principal place of business; or
  • sending it to the fax number or email address that the organisation has specified for its head office or principal place of business; or
  • a method agreed between the organisation and the person serving the notice or document (refer section 352(4A)).

Where a notice or other document is sent by post to a person it is, in the absence of proof to the contrary, deemed to be received by the person at the time at which the letter would have been delivered in the ordinary course of the post. If a notice has been posted out but returned to the sender, it may not be deemed to have been served.

This issue was highlighted in Wellington City Council v Taylor [1997] CRN 6085018671 where a charge against Taylor for not complying with an abatement notice was dismissed, because the notice had been served by post via the Council's internal mail system. The council could not prove that the letter had been sent out the day on which it was dated nor could it prove when the defendant had received the notice.

In Farrell v Manukau City Council [2008] A056/08 the presumption of service was rebutted. The Court held that an appeal was filed within time even though there was undoubtedly prejudice to the Council in the circumstances as the Council had relied on the resource consent and progressed with the tendering process.

Service of a document on a Minister of the Crown

Where a notice, or other document, is required is to be served on a Minister of the Crown, then service on the Chief Executive of the appropriate government Department or Ministry is deemed to be service on the Minister.

Service on an organisation

Where a notice or other document is to be served on a body (whether incorporated or not), then service on an officer of the body, or on the registered office of the body, is deemed to be service on the body. If the organisation happens to be a partnership, the notice may be served on any one of the partners, and this is deemed to be service on the partnership as a whole.

Service of documents for prosecution

The laying of the information (charge) is the commencement of criminal proceedings. The procedure for service of a summons is set out in the Summary Proceedings Act 1957.

An 'information' (charge) and a summons are almost identical. The summons is the copy of the information that is served on the defendant. The summons states the date and time of the hearing. Constables and officers of the Court are authorised to serve a summons, but service by any other person requires authorisation from the Registrar for process servers (refer s25 of the Summary Proceedings Act).

The method serving a summons on a defendant is set out in s24 of the Summary Proceedings Act.

Where the master or owner of a ship is a defendant in any prosecution for an offence against s338 of the RMA for contravention of sections 15A, 15B or 15C, the procedure for service given in s352A must be followed. Section 352A(2) provides that the District Court Judge or Justice or Registrar may direct that the summons be served in accordance with s24 of the Summary Proceedings Act, where he or she is satisfied that it would not be impracticable to do so in the particular circumstances.

 

Good practice examples

Scenarios

Enforcing plans and consents

Scenario 1: Spray drift and enforcement orders

Council receives a complaint of a spray-drift incident. Staff inspect immediately and collect evidence to establish:

  • the applicator is Sea Helicopters Ltd and the application is an aerial application
  • Sea Helicopters Ltd has breached a permitted activity rule in the proposed plan.

The concentration of pesticide applied exceeds the manufacturer's instructions and there are significant adverse effects of off-target drift. Plants on neighbouring properties have been damaged. Sea Helicopters informs council that s20A of the RMA applies, that it has been spraying pesticides for 20 years, and that council cannot take enforcement action because Sea Helicopters is not required to comply with the proposed plan until the plan is operative.

Q1: What can council do?

A1: Council can apply for an interim enforcement order or an enforcement order, or issue an abatement notice requiring Sea Helicopters to comply with the s17 duty.

Q2: In the above scenario, Sea Helicopters sprays pesticide for five months each year. Can council argue that s20A does not apply because the activity has been discontinued for a continuous period of more than six months?

A2: No. The Environment Court has noted that care is required in applying the six-month discontinuity test to seasonal activities like fruit picking. The Court has held that an absence of activity at a time of year when none would normally be carried on anyway, would not be evidence of the use having been discontinued (refer Wairoa Coolstores (1994) Ltd v Western Bay of Plenty District Council [1998] A16/98).

Scenario 2: Taking of water

The Transitional Regional Plan general authorisation 3 allows up to 15 cubic metres of water per day to be taken for reasonable domestic needs and the needs of animals. The proposed plan rule 3.3.4.8 allows 30 cubic metres per day of groundwater to be taken. Joe Bloggs takes 30 cubic metres of water per day. Mr Bloggs's neighbour complains that Bloggs is not complying with the general authorisation 3.

Q1: Is Mr Bloggs required to comply with general authorisation 3?

A1: Mr Bloggs is required to comply with the Transitional Regional Plan and the Proposed Plan. The Transitional Regional Plan is the more restrictive, and therefore Mr Bloggs can only take up to 15 cubic metres of water per day without resource consent.

Scenario 3: Water discharges and existing use rights

Transitional Regional Plan general authorisation number 14a provides that the discharge of clean stormwater to the ground is permitted subject to certain conditions. Under the Proposed Plan, discharge of stormwater onto or into land from a quarry is a controlled activity.

Q1: Is a quarry that was operating before notification of the Proposed Plan allowed to continue to discharge stormwater to land without a resource consent?

A1: Section 20A applies if the quarry meets the conditions in s20A(1)(a), (b) and (c), and the quarry can continue to discharge stormwater to land without a resource consent.

 

Relevant case law

For a list of relevant case law, refer to the RMA enforcement manual case law summaries when appropriate.