Scenarios
Consider the following “what if?” scenarios. Harry is an enforcement officer employed by a unitary authority.
Scenario 1
Jenny Jones makes a number of complaints about her neighbour Sammy Smith. Mrs Jones tells the Council that Mr Smith is damaging a 10-metre-high oak tree on his property. The Council Operative Plan requires a resource consent if any tree over 6 metres in height is altered by cutting, damaging or destroying. Harry investigates and finds that there is no sign of any damage to the tree.
Harry speaks to Mr Smith, who tells Harry that he has not “touched” the tree and Mrs Jones is insane. Mrs Jones continues to complain and Harry inspects the property again and finds that there is no sign of damage. Mrs Jones asks Harry to issue an abatement notice.
What should Harry do?
Answer
Harry cannot issue an abatement notice. Before Harry can issue an abatement notice he must have reasonable grounds under s 322(4) for believing that any of the circumstances in s 322(1) or (2) exist. Harry has inspected the tree and there is no evidence of damage, and it is therefore not appropriate for Harry to issue an abatement notice. (Refer Section 322.)
Scenario 2
The Council receives complaints about a swastika that has been painted on the side of a house and is clearly visible. The complainants say that the swastika is extremely offensive. The swastika is in breach of the rules on signs in the Council operative plan. Harry decides to issue an abatement notice.
Which subsection(s) of s 322 should Harry rely on?
Answer
Subsection (1)(a)(i).
The facts are taken from the Zdrahal v Wellington City Council decision (refer Which subsection of s 322 applies?). In that case an abatement notice was issued under s 322(1)(a)(ii), which provides:
322. Scope of abatement notice—
(1) An abatement notice may be served on any person by an enforcement officer—
(a) Requiring that person to cease, or prohibiting that person from commencing, anything done or to be done by or on behalf of that person that, in the opinion of the enforcement officer,—
(ii) Is or is likely to be noxious, dangerous, offensive, or objectionable to such an extent that it has or is likely to have an adverse effect on the environment:
The Planning Tribunal in the decision queried why the Council chose to proceed under s 322(1)(a)(ii) of the Act instead of s 322(1)(a)(i).
The Tribunal found that the transitional plan in relation to the control of signs is clear and would not have required the Tribunal to enter into a subjective assessment as to whether the swastika is or is not objectionable. The Tribunal made it clear that if the abatement notice had been issued under s 322(1)(a)(i) Zdrahal, the appellant, could not have resisted the abatement notice.
Note: in the Zdrahal case, Zdrahal’s appeal failed and the abatement notice was upheld. The High Court held that the swastika was offensive and objectionable.
Scenario 3
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 the other enforcement officers arrive at the site they find a man standing next to a truck. There is a large quantity of sand with traces of flakes of paint on the truck trailer.
There is a stream at the site which is tributary to a waterway which has been identified in the Council plan as significant. Harry and the other enforcement officers introduce themselves to the man at the site and produce their warrants. The man at the site tells Harry his name and address but he will not give Harry any other information.
The local sandblasting firm refuses to give Harry information. Harry uses a trowel to collect sand from the trailer of the truck and then uses the same trowel to collect samples from a pile of sand which is near the truck. Harry 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.
A month after the incident Harry is notified by the laboratory that there was a slip-up and the chain of custody form was not completed. Harry suspects that the sand is from a local sandblasting firm.
Does the Council have sufficient evidence to prosecute?
Answer
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 s 15(1)(b) and/or s 15(1)(d). The standard of proof is beyond reasonable doubt. There is a possibility of cross-contamination of the samples and the chain of custody form has not been completed.
Scenario 4
Earthworks have been carried out at a property. Harry investigates and issues an abatement notice under s 322(1)(a)(ii). In this case the recipient, Mr Smith, is not in breach of the Act, any regulations, a rule in a plan or a resource consent. Mr Smith owns the property.
As a result of the earthworks Smith has carried out on his property, earth may slide onto his neighbour’s property. Smith appeals the abatement notice. There is heavy rainfall and as a result some earth slides from Smith’s property onto the neighbouring property.
What should Harry do?
Answer
The abatement notice is within the scope of s 322(1)(a)(ii) and Smith is not in breach of the Act, any regulation, a rule in a plan or a resource consent and therefore the appeal filed operates as a stay of the notice. The situation is now urgent.
Harry should investigate further together with an engineer, and talk to Smith and ask Smith to take steps to stop further earth sliding onto his neighbour’s property. Harry should also speak to Smith’s neighbour.
If Smith refuses, an application for an interim enforcement order should be filed. The application should be supported by an affidavit from Harry exhibiting photographs of Smith’s property and the neighbouring property showing the adverse effect to date. The application should also be supported by an affidavit from the engineer.
An application should be filed simultaneously seeking leave from the Court to cancel the abatement notice without prejudice to the Council taking other enforcement action on the grounds that Smith has not complied, an appeal has been filed and this stays the notice, the circumstances have changed, and the situation is now urgent.
Scenario 5
The Council receives a number of complaints between 11 pm and 12 midnight about noise from the Shady Night Club. Harry investigates together with another enforcement officer. Harry’s view and the view of the other enforcement officer is that the noise is excessive.
What is the appropriate enforcement mechanism?
Answer
An excessive noise direction should be issued. This should be given to the person in charge of the Shady Night Club. If the recipient fails to comply immediately, Harry should arrange for a police constable to accompany Harry and the other enforcement officer onto the nightclub premises and, pursuant to s 328(3) of the RMA, seize and remove from the nightclub, or render inoperable by the removal of any part from, or lock or seal so as to make unusable, any instrument or machine that is producing or contributing to the excessive noise.
Scenario 6
The Council receives complaints that trees are 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 and this is required under the Council operative plan. Harry and the other officer show their warrants to the property owner, Mr Smith, and the contractor. Harry takes a number of photographs.
Harry asks Mr Smith to stop cutting down the trees. Harry explains that Smith is in breach of the Council plan and is therefore in breach of the RMA.
Some of the vegetation has fallen into a nearby stream and Harry explains to Smith that Harry is concerned because 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 Act and the Council can take enforcement steps against him, including prosecution.
The contractor tells Harry that he has another job arranged for the next week but intends to return to Smith’s property in the following week and continue to fell vegetation. Smith tells Harry that he intends to continue clearing his property 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 Harry and the other enforcement officer.
What is the appropriate action to take?
Answer
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 the other enforcement officer.
The photographs taken should be annexed as exhibits. Harry should explain in the affidavit that Smith and the contractor refused to co-operate, clearing of vegetation is in breach of the Council operative plan and no resource consent has been issued. The Council can also prosecute.
Scenario 7
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.
What is the most appropriate enforcement mechanism?
Answer
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.
Scenario 8
Harry issues an infringement notice to Helen Melon for breach of s 15(2) of the RMA. Ms Melon fails to pay the infringement fee within the 28-day period and Harry issues a reminder notice.
Helen Melon requests a Court hearing 15 days after service of the reminder notice. Ms Melon denies liability. 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 and the location at which the incident occurred is incorrect. All the details in the infringement notice and the reminder notice are correct.
What should Harry do?
Answer
The notice of hearing is invalid if there has been a miscarriage of justice. The infringement notice and the reminder notice have the correct details. In Greenfield v Police (Case Example 2c, refer Errors in an infringement notice, reminder notice and/or notice of hearing) there was a similar situation and the Court held that 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 and 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 9
Harry issues an infringement notice to Simon Silly for illegal discharge of cowshed effluent, in breach of s 15(1)(b). The infringement fee is $750.
Simon Silly phones Harry and is very apologetic and tells Harry that it was a one-off incident and assures Harry there will be no further illegal discharges. Mr Silly asks Harry if he will reduce the fee to $500. Harry’s view is that Mr Silly is being truthful and Harry accepts his assurance.
Can Harry reduce the fee?
Answer
The Council 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.)
Infringement fees are set by Regulation by the Governor General under section 360 of the Resource Management Act, and can not be reduced by a Council.
Scenario 10
Harry investigates a complaint about illegal discharge in the coastal marine area in breach of s 15B (discharges of harmful substances from ships or offshore installations).
Harry wants to issue an infringement notice. Can he do so?
Answer
Yes. There is now provision in the Resource Management (Infringement Offences) Regulations for issue of an infringement notice for breach of s 15B.
Scenario 11
The Council receives numerous complaints about odour from a pig farm. The pig farm is approximately 30 kilometres from the Council ’s main office. The pig farm is surrounded by 15 lifestyle blocks.
Ten of the 15 neighbours are complaining. Three of the 15 neighbours do not complain, and these neighbours work at the pig farm. The pig farm is the largest pig farm in New Zealand. In the 1970s the pig farm started with about 300 pigs, but it now has about 5,000 pigs.
Harry and other Council enforcement officers investigate and find that many of the complaints are justified.
The odour conditions in the resource consent are:
- 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 to assess whether the odour is objectionable or offensive.
What is the most appropriate enforcement mechanism?
Answer
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. Council staff should point 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.
What evidence should be collected?
Answer
Evidence should be carefully collected. Any other possible sources of odour should be excluded (conduct a 360 degree check). All complaints should be recorded. A strategy should be 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 1 to 5 scale is easier to work with than a 1 to 10 scale.
