Water shortage directions
Section 329
Regional councils and unitary authorities can issue water shortage directions. The relevant section of the RMA is s 329:
329. Water shortage direction—
(1) Where a regional council considers that at any time there is a serious temporary shortage of water in its region or any part of its region, the regional council may issue a direction for either or both of the following:
(a) That the taking, use, damming, or diversion of water:
(b) That the discharge of any contaminant into water,
- is to be apportioned, restricted, or suspended to the extent and in the manner set out in the direction.
(2) A direction may relate to any specified water, to water in any specified area, or to water in any specified water body.
(3) A direction may not last for more than 14 days but may be amended, revoked, or renewed by the regional council by a subsequent direction.
(4) A direction comes into force on its issue and continues in force until it expires or is revoked.
(5) A direction may be issued by any means the regional council thinks appropriate, but notice of the particulars of the direction shall be given to all persons required to apportion, restrict, or suspend-
(a) The taking, use, damming, or diversion of water; or
(b) The discharge of any contaminant into water,
- as far as they can be ascertained, as soon as practicable after its issue.
(6) For the purpose of this section, notice may be given to a person by serving it on the person or by publishing the notice in one or more daily newspapers circulating in the area where the person takes, uses, dams, or diverts the water, or discharges a contaminant into water.
When is it appropriate to issue a water shortage direction?
Section 329 of the RMA provides that a regional council may issue a water shortage direction if it considers there is a serious temporary shortage of water in its region, or any part of its region.
Section 329 is similar to s 24E of the Water and Soil Conservation Act 1967. A 1982 decision under the Water and Soil Conservation Act, Jordan v Marlborough Regional Water Board (1982) 9 NZTPA 129 (PT) is the authority that s 24E of the Water and Soil Conservation Act is intended to cater for unforeseen circumstances.
Case example A
Jordan v Marlborough Regional Water Board
The facts in Jordan were that Montana Vineyards was granted a further water right to take underground water for irrigation from one of its properties. Some of the water was to be used by another property 4 kilometres away.
The appellant, Mrs Jordan, claimed that her existing well, about 750 metres from the Montana property, from which water was to be taken, was already affected by Montana’s draw-off. Mrs Jordan argued that a water right should not be granted that would enable Montana to transport water outside the district to the detriment of users within it.
The Tribunal found that the deficiencies complained of by Mrs Jordan were due mainly to defects in her well or pumping system. The Tribunal dismissed the appeal. The Tribunal made a comment about sections 24D and 24E of the Water and Soil Conservation Act even though these sections did not have a direct bearing on the appeal, at page 133:
… we want to make it clear that we do not regard the presence of these two sections in the Act as justifying a Water Board in granting water rights in circumstances where it is unsure whether or not there is sufficient supply. In our judgment, these two sections are intended to cater for unforeseen circumstances.
The Tribunal also said:
In terms of s 20, it is one of the functions of a Water Board to be knowledgeable about the water supplies in its region. We think it is a wrong approach (although we do not suggest that the respondent has done so in this case), to decide to grant a water right on the basis that if it happens to be wrong in its assessment the Board can always fall back on s 24D or, in an emergency, s 24E. Those two sections were referred to in Napier City Council v Hawke's Bay Catchment Board (supra). We hope that what we have now said, in this decision, will be of assistance to the respondent and other Regional Water Boards who may face similar problems.
(1982) 9 NZTPA 129 (PT)
Duration of direction
Section 329(3) provides that a direction may not last for more than 14 days but may be amended, revoked or renewed by subsequent direction. If the direction is required for more than 14 days, the Council must renew the direction by giving a subsequent direction.
Prosecution for contravention of a water shortage direction
Section 338(1)(d) provides that it is an offence to contravene a water shortage direction. The maximum penalty is two years’ imprisonment, the maximum fine is $200,000 and the maximum fine for a continuing offence is $10,000 per day.
Some of the offences under the RMA are strict liability offences. A strict liability offence means that it is not necessary for the local authority in a prosecution to prove that the defendant intended to commit the offence. Contravention of a water shortage direction is not a strict liability offence. This means that it is necessary to prove that the defendant intended to commit the offence. It is therefore necessary to prove beyond reasonable doubt that the defendant was aware of the water shortage direction.
A "what if?" scenario
A water shortage direction is advertised by a regional council in the local newspaper. Council staff receive a complaint about Gary Reedy from his neighbour, Mrs Fair. Mrs Fair alleges that Mr Reedy has been operating a pump in the stream above her property during the period of the water shortage direction.
Council staff (Harry Helpful and Harriet Happy) immediately inspect the property and find a submersible pump in the stream on Mr Reedy’s property. The pump is operating at the time of the inspection. The submersible pump has been positioned in the stream to gain the most benefit from a large spring and is pumping water approximately 150 metres to a large dam upstream, which is the legal point from which Mr Reedy takes water.
Mr Helpful and Ms Happy speak to Mr Reedy and point out to him that he is in breach of the water shortage direction. Mr Reedy’s reply is: “I was not aware of the water shortage direction”.
Mr Helpful informs Mr Reedy that the water shortage direction was advertised in the local newspaper. Mr Reedy tells Mr Helpful that he does receive the newspaper but he does not look at the public notices. In fact when he is very busy he often does not read the newspaper at all. When he does read the newspaper, he will only read the first couple of pages.
Does the Council have sufficient evidence to prosecute?
In this case the Council does not have sufficient evidence to prosecute. To succeed in a prosecution the Council has to prove beyond reasonable doubt that Mr Reedy intended to commit the offence. Mr Reedy claims that he did not see the advertisement in the newspaper.
To date there has only been one prosecution under the RMA for contravention of a water shortage direction: Waikato Regional Council v Amrat Bhana and Hira Bhana Co Ltd. (10/07/95, Judge Treadwell, DC Hamilton CRN 4057004787 to 4790). There is unfortunately no written decision. The author made a handwritten record of the judgment and this is set out in Appendix 8C.
Procedure for issuing a water shortage direction
It is recommended that the following procedure be followed for issuing a water shortage direction.
- Notice of the water shortage direction should be advertised in one or more daily newspapers circulating in the area.
- To comply with s 329(5) (“notice of the particulars of the direction shall be given to all persons required to apportion, restrict, or suspend … as far as they can be ascertained, as soon as practicable after its issue”) and as a matter of good public relations, a copy of the notice should be personally delivered by Council staff to each affected household.
What information should be included in a water shortage direction?
As good practice, the following information should be included in a water shortage direction:
Appendices
Appendix A: Checklist (Word document 35KB)
