Scenario 1: Error in notice for an infringement hearing
Enforcement officer Harry issues an infringement notice to Helen Melon for breach of s15(2) of the RMA. Ms Melon fails to pay the infringement fee within the 28-day period and Harry issues a reminder notice.
Ms Melon denies liability and requests a Court hearing 15 days after service of the reminder notice. Harry commences proceedings by filing a notice of hearing in Court, and he arranges service of the notice on Ms Melon. The Court allocates a hearing date.
A week before the hearing, Harry checks the infringement notice, the reminder notice and the notice of hearing. Harry is horrified to find that in the notice of hearing, the date of issue of the infringement notice is incorrect, as is the location at which the incident occurred. All the details in the infringement notice and the reminder notice are correct.
Q1: What should Harry do?
A1: The notice of hearing is only invalid if there has been a miscarriage of justice. In this case the infringement notice and the reminder notice have the correct details, therefore the notice is not invalid. In Greenfield v Police there was a similar situation and the Court held there was no miscarriage of justice, and that the notice of hearing was not invalid because the information in the infringement notice and the reminder notice was correct; Mr Greenfield could not have been in any doubt as to what was alleged against him. The Council's lawyer should seek leave at the hearing to amend the notice of hearing.
Scenario 2: Discharge of cowshed effluent
Enforcement officer Harry issues an infringement notice to Simon Sully for illegal discharge of cowshed effluent, in breach of s15(1)(b) of the RMA. The infringement fee is $750.
Mr Sully phones Harry and is very apologetic; he assures Harry it was a one-off incident and there will be no further illegal discharges. Mr Sully asks if Harry will reduce the fee to $500. Harry considers that Mr Sully is being truthful and accepts his assurance.
Q2: Can Harry reduce the fee?
A2: The Council's policy on infringement notices should cover this issue. If the council policy allows Harry to reduce the fee, he can do so (the council policy may provide that requests for reduction of fees are referred to a senior enforcement officer or to the Council's enforcement decision group).
Scenario 1: Pollution in river
Council receives a complaint of dead eels in a river. Harry and other enforcement officers investigate immediately and find thousands of dead eels in the river. They establish that the eels have died as a result of a caustic soda solution which has been discharged into the stream from a dairy factory.
The dairy factory owner, Mr Keel, admits that the caustic soda solution was discharged in breach of the resource consent and as a result the eels were killed. Mr Keel tells Harry that steps have been taken to ensure the incident does not occur again. Samples are collected and analysed and confirm that caustic soda was discharged and the eels died as a result.
Q1: What is the most appropriate enforcement mechanism?
A1: The adverse effect is serious - thousands of eels have been killed. The council can prosecute. It appears there is sufficient evidence to prove the charge beyond reasonable doubt. The company has admitted the discharge and that the eels died as a result of the discharge.
Before the council prosecutes, advice should be sought from the Council's lawyer to confirm there is sufficient evidence to prosecute and there is no defence available.
If prosecution is successful, the Court may, instead of or in addition to the maximum penalties of s339(1) and (1A) order the council to review the resource consent by directing it to serve notice under s128(2) to review the consent conditions. If the council finds that there are significant adverse effects on the environment resulting from the exercise of the consent, the council can, as set out in s132, cancel the resource consent.
Relevant case law
For a list of relevant case law refer to the Enforcement Manual case law summaries when appropriate.