Application for an interim enforcement order

Relevant sections of the Act

An application for an interim enforcement order is made under s 320, which provides that sections 314 to 319 apply to an application for, and determination of, an interim enforcement order, except as provided in s 320.

An interim enforcement order can be made by an Environment Judge or a District Court Judge without service of notice to affected parties, and without a hearing.

Section 320(3) provides that before making an interim enforcement order the Judge shall consider:

what the effect of not making the order would be on the environment
whether the applicant has given an appropriate undertaking as to damages
whether the Judge should hear the applicant or any person against whom the interim order is sought
such other matters as the Judge thinks fit.

Walden v Auckland City Council

The Planning Tribunal observed:

It is the normal course for applications for interim injunctions that the applicants are expected to give undertakings as to damages. That would normally be expected by the Tribunal in the case of applications for interim enforcement orders as well. The reasons for that practice are summarised in Spry on EquitableRemedies. Nevertheless, the absence of an undertaking as to damages will not always be decisive against an applicant, and it may be that this Tribunal will be more relaxed about that expectation than the general Courts are in the case of interim injunctions; particularly where applicants see not so much to protect private rights, but to seek that the public law is observed.

A3/92 (1992) 1 NZRMA 101, 103,

In Auckland Heritage Trust v Auckland City Council A126/96 (1991) 1 NZRMA 39, 40, the Planning Tribunal did not regard the absence of any undertaking as to damages as precluding an order, on the basis that the interim order would last until a further order of the Tribunal. This case was followed in Hamilton City Council v McQuade A115/2000.

When to file an application

An application for an interim enforcement order should be filed:

where urgent action is required
where the emergency provision in s 330 cannot be used, and/or
where the sanction and protection of Court order is desirable.

The interim enforcement order stays in force until the application for an enforcement order is determined, or the interim enforcement order is cancelled under s 320(5) or s 321.

When an interim enforcement order takes effect

If an interim enforcement order is made, the Court will direct the applicant to serve a copy on the respondent. The order takes effect from when it is served, or any such later date as the order directs.

Application to change or cancel an order

If the Judge did not hear from the respondent before the order was made, the respondent can apply under s 320 for a change or cancellation of the order. Section 321 provides that anyone directly affected by an enforcement order may at any time apply to the Court to change or cancel the order.

Duration and scope of an order

An interim enforcement order stays in force until an application for an enforcement order under s 316 is determined, or until the order is cancelled either under s 320(5) or under s 321. The scope of an interim enforcement order is the same as that for an enforcement order and is prescribed by s 314 (refer chapter 5).

Discretion to make an order and award costs

Refer to chapter 6 for the factors that are relevant to exercising the discretion to make orders and for the relevant factors for awards of costs. Costs are not usually awarded on an application for interim enforcement order.