Application for an enforcement order

Relevant sections of the Act

The relevant sections of the Act are sections 314 to 319, and 321. The scope of an enforcement order is set out in s 314. In summary, an order may require a person to:

cease, or prohibit a person from commencing, anything which, in the opinion of the Environment Court, contravenes or is likely to contravene the Act, any regulations, a rule in a plan, a rule in a proposed plan, a requirement for a designation or for a heritage order, or a resource consent, s 10 (certain existing uses protected), or s 20A (certain existing lawful activities allowed)
cease, or prohibit a person from commencing, anything that, in the opinion of the Environment Court, 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
do something necessary to comply with the Act, any regulations, a rule in a plan, a rule in a proposed plan, a requirement for a designation or for a heritage order, or a resource consent
do something necessary to avoid, remedy, or mitigate any actual or likely adverse effect on the environment caused by or on behalf of that person
remedy or mitigate any adverse effect on the environment caused by or on behalf of that person
pay money to or reimburse any other person for actual and reasonable costs and expenses (see RMA section 314(2))incurred or likely to be incurred in avoiding, remedying or mitigating any adverse effect on the environment, where the person against whom the order is sought fails to comply with an enforcement order, an abatement notice, a rule in a plan or proposed plan, a resource consent, or any of that person’s other obligations under the RMA (for further information on costs, see chapter 7).

An application for an enforcement order must be made in the prescribed form, Form 43.

Procedure for application for an enforcement order

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Points to watch

Berhampore Residents Assn Inc v Wellington City Council

The Planning Tribunal (as it then was) held that an enforcement order must be couched in precise terms in order that it may be capable of enforcement.

Section 316(1) provides that any person may at any time apply for an enforcement order of a kind specified in paras (a) to (d) of s 314(1), or in s314(2). The Tribunal construed subsection (1) of s316:

... as requiring the applicant to specify with a degree of precision the action it seeks on the part of the respondent because all of the relevant subsections commence with the expression “require a person to ...”

The Tribunal held that an enforcement order should not contain any debatable or conjectural material. The Tribunal was prepared to make an order but not to draft its terms, and required a draft enforcement order from the applicant.

The parties filed memoranda, and in decision W92/93 the Tribunal held that a meaningful order could not be made because of the complexity of enforcement. The Tribunal directed the Council to take steps to put in place controls to monitor potential breaches not within the direct control of the Council.

The Tribunal concluded that the correct approach is through the district plan procedures, which would impose a duty upon Council to enforce the observance of those provisions. The Tribunal declined to make an order in the terms sought.

The Berhampore Residents Association had originally asked for an order in the following terms:

“An order prohibiting outdoor musical concerts at Athletic Park, 413 Adelaide Road, Wellington, at which amplified electric music is played”.

The Tribunal drafted an order as follows:

“The Tribunal prohibits the Wellington Rugby Union (Inc) and its successors and assigns from commencing or continuing any musical concert making use of amplified music on the property known as Athletic Park, Adelaide Road, Wellington, after 6.30 pm and before 11.00 pm if such concert is likely to produce sound which exceeds 68 dBA leq measured at any residential or hospital property boundary in the vicinity. Amplified music is totally prohibited between 11.00 pm and 9.00 am. The expression “concert” shall include any music, sound or equipment testing ancillary to the actual concert and connected therewith occurring before or after the main event.

The Tribunal suggested this order in an attempt to resolve the differences between the parties, then decided that the order as drafted by the Tribunal may go beyond what is reasonable and be difficult, if not impossible, to police.

W95/92

Notification of an application

Section 317 provides that the applicant must serve an application for an enforcement order and notice of the application in the prescribed form (Form 44) on every person directly affected within five working days after the application is made.

Standard of proof

The applicant for an enforcement order has to prove, on the balance of probabilities, that an enforcement order is required. In applying this standard of proof, consideration must be given to the seriousness of the consequences of making an enforcement order. If there is cause for doubt, the benefit should be given to those against whom orders are sought (Hall v Port Otago Ltd C48/96).

Decision on an application

Section 319 provides that after hearing an application, the Court can refuse the application or make any of the orders outlined in s 314, subject to the restrictions in s 319(2):

(2) Except as provided in subsection (3), the Environment Court must not make an enforcement order under section 314(1)(a)(ii), (b)(ii), (c), (d)(iv), or (da) against a person if -

(a) that person is acting in accordance with -

(i) a rule in a plan; or

(ii) a resource consent; or

(iii) a designation; and

(b) the adverse effects in respect of which the order is sought were expressly recognised by the person who approved the plan, or granted the resource consent, or approved the designation, at the time of the approval or granting, as the case may be.

(3) The Environment Court may make an enforcement order if -

(a) the Court considers it appropriate after having regard to the time that has elapsed and any change in circumstances since the approval or granting, as the case may be; or

(b) the person was acting in accordance with a resource consent that has been changed or cancelled under section 314(1)(e).

Exercise of discretion to make orders

Factors relevant to the exercise of discretion

The following factors have been identified by the Tribunal/Court as being relevant to the decision as to when to exercise the discretion to make orders.

The Court has a discretion to refuse an order even when the grounds are made out (See Rangiora New World v Barry (1992) 1 NZRMA 133 (PT). This decision was cited with approval in cases such as Hill Park Residents Association Inc v Auckland Regional Council A30/2003 and Waikato Regional Council Campbell A206/2002).
For the Court to have jurisdiction on an enforcement order there does not need to be a high degree of adverse effects on the environment (see Minhinnick v Watercare Services Ltd and Minister of Conservation A055/97).
The respondents are required to abide by the law regardless of whether the Council was vigilant (see AMP v Gum Sarn Property Ltd (1992) 2 NZRMA 119 (PT). The principles from this decision were cited with approval in Manukau City Council v Murray A084/2002).
Even if a council official misleads the respondent, compliance is still required. However, if a person reasonably relied on misleading information from a council official, this might influence the exercise of the Court’s discretion to defer an order requiring compliance (see AMP v Gum Sarn Property Ltd (1992) 2 NZRMA 119 (PT)).
There is significant public interest in the consistent and even-handed enforcement of plans (see AMP v Gum Sarn Property Ltd (1992) 2 NZRMA 119 (PT)).
If the local authority does not enforce its plan and a member of the public seeks an order, the fact that the member of the public is not officially responsible for enforcement of the plan does not count against the Court’s exercise of its discretion against a respondent (see AMP v Gum Sarn Property Ltd (1992) 2 NZRMA 119 (PT)).
Property owners who fail to observe the relevant planning provisions should not be permitted to continue to profit from that failure (see AMP v Gum Sarn Property Ltd (1992) 2 NZRMA 119 (PT)).
To refuse an enforcement order altogether when there have been illegal contraventions would, in the absence of unusual circumstances, tend to diminish public confidence in the statutory control over the discharge of contaminants, and in the perception that administration of this control is even handed (see Canterbury Regional Council v Canterbury Frozen Meat Co Ltd A14/94.).
The state of mind and conduct of the respondent is relevant to the discretion of the Court when it comes to the timing of the enforcement action and whether there are grounds for deferral of enforcement action (see AMP v Gum Sarn Property Ltd (1992) 2 NZRMA 119 (PT)).

Immediate compliance with an enforcement order is usually required, although there is a discretion to postpone the coming into force of an order

The then Planning Tribunal in Canterbury Regional Council v Canterbury Frozen Meat Co Ltd held that the circumstances that support deferring the coming into force of an enforcement order are:

(i) absence of evidence of environmental harm from excessive concentrations of contaminant in the discharge

(ii) no flagrant or reckless contravention of the law

(iii) the technical difficulty of ensuring that the effluent will constantly meet the stipulated limits without exception.

The Tribunal held that (i) and (ii) would in general be indispensable circumstances.

Test for whether an activity is objectionable or offensive

Whether an activity is objectionable or offensive should be tested objectively. The High Court has held that the following factors are relevant (see Zdrahal v Wellington City Council [1995] 1 NZLR 700. See also Watercare Services Ltd v Minhinnick [1998] INZLR 294 (CA)).

Is the assertion of the person seeking an enforcement order honestly made?
If the assertion is honestly made in the opinion of the Court, is the activity noxious, dangerous, offensive or objectionable, or likely to be so?
If it is, is it of such extent that it is likely to have an adverse effect on the environment?
In all circumstances, should the Court’s discretion be exercised and an enforcement order made?

Costs

There is no scale of costs, and the Court has discretion. The principles for awarding costs in enforcement proceedings were noted in Waimakariri District Council v Addie. (C203/2000):

Though costs awards are subject to a broad discretion, an approach to principled consideration of relevant factors should be adopted.

We consider the following categories of factors are relevant:

(a) Factors going to the conduct of the hearing as noted in DFC NZ Ltd v Bielby [1991] 1 NZLR 587.

(b) Factors going to the content of the hearing including complexity.

(c) Factors of public interest such as whether the matter is a test case, the public duty and other similar matters.

(d) Factors relevant to the parties including

potential effect on the respondents

ability to pay costs

importance of the outcome

(e) Outcome of the case including the clarity of the issue decided.

It was noted in Kapiti Cost District Council v Kapiti Island Watching Interest Incorporated C155/2002 that the Addie criteria are ones that arise after a hearing.

The principles for awarding costs in enforcement proceedings are as follows:

Costs usually follow the event.
An order for payment of costs is not a penalty against the unsuccessful party,but compensation for the successful party (see AMP v Gum Sarn Property Ltd (1992) 2 NZRMA 119 (PT)).
Costs incurred by local authorities in enforcement fall on public funds, which should be protected (see AMP v Gum Sarn Property Ltd (1992) 2 NZRMA 119 (PT)).
A party should pay a higher-than-usual amount of costs where it has contributed to the need for or duration of the hearing (Waitakere City Council v Gordon A53/93).
Actual and reasonable costs for the expenses incurred by local authorities in respect of its officers preparing for the prosecution cannot be claimed (Auckland Regional Council v Haines House Removals Ltd [2001] NZRMA 271).
An award of one-third to one-half of actual costs is usual. Solicitor and client costs are rare. Witnesses’ costs are usually allowed in full (Rowell v Wairoa Quarries Ltd 7/09/96, Ellis J, HC Nelson M14/96).

Recovering costs and expenses under s 314(d)

Section 314(d) provides as follows:

(d) The Environment Court may require a person to pay money to or reimburse any other person for any actual and reasonable costs and expenses which that other person has incurred or is likely to incur in avoiding, remedying, or mitigating any adverse effect on the environment, where the person against whom the order is sought fails to comply with-

(i) An order under any other paragraph of this subsection; or

(ii) An abatement notice; or

(iii) A rule in a plan or a proposed plan or a resource consent; or

(iv) Any of that person's other obligations under this Act:

Local authorities can apply to recoup actual and reasonable costs incurred in carrying out remedial work See Auckland Regional Council v Haines House Removals Ltd [2001] NZRMA 271.

In Auckland Regional Council v Conway ( A039/2003) the actual and reasonable costs incurred included direct and indirect overhead costs.

Failure to comply with an enforcement order

If the respondent fails to comply with the enforcement order, the Council can apply for the Environment Court ’s consent under s 315(2) of the RMA to:

(a) comply with the order on behalf of the respondent, and for this purpose, enter upon any land or enter any structure (with a constable if the structure is a dwellinghouse)

(b) sell or otherwise dispose of any structure or materials salvaged in complying with the order

(c) after allowing for any moneys received under paragraph (b), if any, recover the costs and expenses of doing so as a debt due from that person.

Prosecution

Section 338(1)(b) of the RMA provides that it is an offence to contravene, or permit the contravention of, an enforcement order.

The maximum penalty is two years’ imprisonment, or a fine not exceeding $200,000. If the offence is a continuing one, the offender is also liable to a further fine of a maximum of $10,000 per day or part of a day during which the offence continues.

Dunn v Smiturnugh Ltd & Others

The Environment Court held Smiturnugh Ltd in contempt on account of a deliberate and repeated breach of an enforcement order and fined the company $5,000. The Court did not impose penalties on the two directors personally because there was insufficient information available to determine how and to what extent each director played a part in determining and implementing the company’s course of action. The application was made under s 79(2) of the District Courts Act 1947. The respondents’ lawyer argued that because the RMA contained sections dealing with offences and penalties, including the creation of an offence and provision of penalties for contravention of an enforcement order, those provisions amount to an exclusive framework, so that the respondents may only be prosecuted for contravention of an enforcement order. The Environment Court did not accept this argument and held that it is open to the Environment Court to consider an application under s 79(2) and, if the circumstances warrant, to impose a fine consequent upon a finding of breach by a person to whom an enforcement order has been directed.

A47/2000