The RMA Quality Planning Resource

Scenarios

Scenario 1: Dumping of sandblasting material

Harry and two other enforcement officers respond to an urgent complaint of dumping of spent sandblasting sand at an unauthorised dump site. When Harry and colleagues arrive at the site they find a man standing next to a truck whose trailer contains a large quantity of sand with traces of paint flakes.

A stream at the site is a tributary to a waterway that has been identified in the regional plan as significant. All three enforcement officers introduce themselves to the man at the site and produce their warrants. Harry uses a trowel to collect sand from the trailer of the truck. He then uses the same trowel to collect samples from a pile of sand which is near the truck but does not clean the trowel between collecting the various samples. Harry sends the samples to an external laboratory and asks the laboratory to complete a chain of custody form.

Harry suspects that the sand is from a local sandblasting firm and pays a visit. The firm refuses to give Harry information.

A month after the incident Harry is notified by the laboratory there was a slip-up and the chain of custody form was not completed.

Q1: Does the council have sufficient evidence to prosecute?

A1: The council should only prosecute if it can obtain further evidence. At this stage the evidence is substandard. To prosecute, the council has to prove breach of s15(1)(b) and/or s15(1)(d) of the RMA. The standard of proof must be beyond reasonable doubt. There is a possibility of cross-contamination of the samples and the chain of custody form has not been completed.

Scenario 2: Illegal vegetation removal

The council receives complaints that a large area of native vegetation is being felled illegally. Harry investigates together with another enforcement officer and speaks to the property owner and the contractor who has just finished work for the day.

Harry estimates that an area of about 1 hectare has been cleared. A resource consent has not been granted although this is required under the District Plan. Harry and colleague show their warrants to the property owner, Mr Smith, and to the contractor. Harry takes a number of photographs.

Harry asks Mr Smith to stop cutting down the vegetation. Harry explains that Smith is in breach of the District Plan and is therefore in breach of the RMA.

Some of the vegetation has fallen into a nearby stream and Harry expresses his concern to Smith that this vegetation may block the stream and cause flooding to the upstream property. Harry also talks to the contractor and gives him the same information. He also explains that, even though the contractor is acting under instructions from Smith, the contractor is in contravention of the RMA and the council can take enforcement steps against him, including prosecution.

The contractor tells Harry he has another job arranged for the next week but intends to return to Smith’s property and continue to fell vegetation in the week thereafter. Smith tells Harry he intends to continue clearing the vegetation and that Harry has no right to tell him what to do on his own property. Smith picks up a chainsaw and waves this menacingly at the other enforcement officer.

Q1: What is the appropriate action to take?

A1: Harry and the other enforcement officer should immediately leave the property. They may be in danger. Harry should arrange for an application for an interim enforcement order to be filed, supported by an affidavit from himself and his colleague.

The photographs taken should be annexed as exhibits. Harry should explain in the affidavit that Smith and the contractor refused to cooperate, that clearing of this vegetation is in breach of district plan and that no resource consent has been issued. The council can prosecute.

 

Fact analysis

Level of inquiry

Example elements

Relevant facts (+   evidence for any inferred facts)

What is the offence?

s338(1)(a) of the RMA:

Breach of s9 of the RMA:

using land in a manner that contravenes a rule in a District Plan without resource consent or existing use rights:

Rule 5C.7.3.3C Specific Tree Protection

 

What are the legal elements?

1. A person who contravenes or permits a contravention of section 9: land used in a manner that contravenes a rule in a District Plan - 5C.7.3.3C Specific Tree Protection:

 
      
  1. felling, trimming, damaging or removal of kauri
 
      
  1. at no. 4A Grove Street, Ngahere
 
      
  1. Lot 76, DP 555123
 
      
  1. where each truck with a circumference of 250 mm or more
 
      
  1. taken at 1.4m above ground
 

2. Date

 
 

3. Are any defences applicable?

 

Who is the offender?

   

 

Scenario 3: Objectionable odour

The council receives numerous complaints about odour from a pig farm. The farm is about 30 kilometres from the Council's main office and surrounded by 15 lifestyle blocks.

Ten of the 15 neighbours are complaining. Three of them do not complain, and these neighbours work at the farm which is the largest pig farm in New Zealand. It started in the 1970s with about 300 pigs, but now has about 5000 pigs.

Harry and other council enforcement officers investigate and find that many of the complaints are justified.

The odour conditions in the existing resource consent are:

  • The consent holder shall operate and manage all piggery waste, and waste treatment systems, such that there are no objectionable odour beyond the property boundary, which cause an objectionable or offensive effect.
  • For the purpose of condition 12 of this resource consent, the council will consider an effect that is objectionable or offensive to have occurred if any enforcement officer of the council deems it so after having regard to the frequency, intensity and duration; and having consulted with the consent holder or a trained operator on-site; and having regard to any actions taken by the consent holder to avoid, remedy or mitigate the perceived adverse effect of the odour.

Q1: What is the most appropriate enforcement mechanism?

A1: Further investigation has to be carried out before deciding on an enforcement mechanism. Council staff should meet with the complainants and find out if they agree to the council informing the pig farmer of the names of the complainants. It should be pointed out that if the complainants want to remain anonymous, the council will have difficulty taking enforcement action. Council staff should then speak to the pig farmer and inform him about the complaints.

Q2: What evidence should be collected?

A2: Evidence should be carefully collected. Any other possible sources of odour should be excluded (conduct a 360-degree check around the pig farm). All complaints should be recorded and a strategy put in place to respond to complaints. Draft a scale for assessing the odour. The scale should incorporate factors in the consent conditions (eg, frequency, intensity and duration). A scale of 1-5 is easier to work with than one of 1-10.

 

Search warrants

How do I draft a search warrant application?

There are no specific forms in the RMA for search warrants. The form contained in s198 of the Summary Proceedings Act 1957 can be used as a guide. See an example warrant application (PDF, 43 KB) drafted for a district plan matter.

In making the application and showing reasonable grounds for belief, inferences are often important. You usually build those inferences by laying out a chronology of the investigation, with details of relevant findings at different points in the investigation.

Be aware of the fact that a search warrant is to cover an intrusion on privacy. It is a mechanism to provide scrutiny of your powers and investigative purpose, and balance these against individual freedom. You should include anything prejudicial to the search, such as the fact you are relying on leads provided by a neighbour who is in dispute with your suspect. Including the material is important because your suspect is not present during the application to challenge it. A registrar or judge’s scrutiny now may save a finding of unreasonable search later.

More good practice tips about search warrants

The first time a local authority seeks to obtain a search warrant under the RMA, it will be important to discuss the RMA and s334 with the District Court registrar. It is a good idea to:

  • call ahead and ask for half an hour to go through it; the registrar may choose to find a judge in chambers to consider it on these first occasions
  • create a good first impression; have an experienced criminal prosecutor check your first few warrants.

On-site, it is effective to have:

  • a constable experienced in the serving of warrants to make the initial entry ahead of you and to secure cooperation; after that you should take the lead
  • have a plan and roles assigned for evidence collection: a coordinator, searchers, an interviewer to take occupants through any questions you have or that might arise from articles found, and a manager of exhibits.

 

Relevant case law

For a list of relevant case refer to the Enforcement Manual case law summaries.