RMA enforcement manual case law summaries

This document forms part of the RMA Enforcement Manual on the Quality Planning website. It is not a guidance note, but is intended to provide an easy reference to the case law referred to within the guidance notes.

Investigation of incidents

Auckland Regional Council v Graham [1995] CRN 4090020525-527

The enforcement officer entered a pig farm in the early hours of the morning to investigate a complaint that the defendant had been spray-irrigating pig waste onto her property at night. The defendant conducted her own defence and complained about the time of the inspection. The Judge considered s332 of the RMA and found that the time of the inspection was reasonable because the enforcement officer was legitimately investigating an alleged unlawful discharge at night.

An Application by Waikato Regional Council v Wellington [2002] A226/02

The Waikato Regional Council sought declarations relating to the power to enter private property.

The Court discussed an enforcement officer 's implied licence to enter private property. It noted that s332 of the RMA only needs to be relied on when there is no invitation to enter and when no-one is present on site. The Court decided that force could be used if reasonably necessary to enter onto private property, otherwise the ability to carry out inspections for the purpose of ensuring compliance would be hindered.

The words 'specifically authorised ' in s332(1) are a reference to the enforcement officer 's powers. The Court found that an enforcement officer authorised to act under s332 does not need written authorisation specifying the time, place or assistance required for an inspection.

The Court also determined that s332 does not authorise use of force to enter when there are reasonable grounds to believe that evidence of an offence against s338(1) will only be collected if an inspection is undertaken immediately. Section 332 only authorises inspections to determine compliance. If there are reasonable grounds to believe that an offence punishable by imprisonment has been committed, s334 should be used.

Note that the New Zealand Pork Industry Board was concerned at the risk of infection or disease from the exercise of a power of entry. The Court pointed out that an enforcement officer is required to comply with statutory requirements, such as the Health and Safety in Employment Act 1992, which may apply. Enforcement officers are also required under the general law to act with reasonable care, having regard to the circumstances.

Marlborough District Council v Searle [1996] CRN 6006004645

The Marlborough District Council prosecuted Searle for breach of s9(3) of the RMA for excavation of Class VI(e) land within 8 metres of the sea, being a use of land contravening a rule in the regional plan. The charge was dismissed because the Council failed to establish that the land was Class VI(e) land.

One of the arguments raised by the defendant was that the enforcement officers ' entry upon the land was illegal because there was no-one present when the enforcement officers inspected, and the enforcement officers did not leave written notice of the date and time of inspection.

Environment Judge Treadwell held:

 Officers of Council must be extremely careful in carrying out the requirements of s332 [of the RMA] but in the present case I do not hold that has invalidated in any way the evidence I heard because the evidence of the cutting of the track could have been given without entry upon land namely by standing on the foreshore or sitting in a boat and observing it.

Northland Regional Council v Northland Port Corporation (NZ) Ltd and Others [1996] CRN 5088011428-447, 527-28, 532-33

The Northland Regional Council prosecuted the Northland Port Corporation and others for the discharge of spent sandblasting sand and oil. Judge Bollard expressed astonishment that none of the three officers who collected the samples undertook responsibility for looking after the samples, for making sure the whereabouts of the samples was known, and for reasonably assuring the samples ' security from the time they were taken to the time they were uplifted from the refrigerator in the Council laboratory. The Judge described the evidence surrounding the samples as unpersuasive and, in some respects, substandard. As a result some of the charges were dismissed.

Northland Regional Council v Juken Nissho Ltd [1998] CRN 7029003709, 7029003874 and 7029004299

The Northland Regional Council prosecuted Juken Nissho for contravention of s15(1)(c) of the RMA, discharge of contaminants into air in breach of Juken Nissho 's resource consent. One of the three charges against Juken Nissho was dismissed because the security of the samples could not be established beyond reasonable doubt. The Ministry of Agriculture and Forestry laboratory, to which the Council had sent the samples for analysis, had a chain-of-custody procedure in place but did not adopt the procedure for the Northland Regional Council samples.

Wellington Regional Council v O 'Rourke and Cremen [1993] CRN 3035007074-76

O 'Rourke and Cremen pleaded not guilty to a breach of s15(1)(b) of the RMA - discharge of septic tank sludge and grease trap waste. No evidence was given by the Council to establish that the sample collected was the sample analysed: this had been overlooked. The charges were dismissed.

Manawatu - Wanganui Regional Council v Lakeview Farm Fresh Ltd [2000] CRN 9031005197-205

The Manawatu - Wanganui Regional Council prosecuted Lakeview Farm Fresh Ltd for breach of s15(1)(c) of the RMA. The defendant sought an order dismissing the charges on the grounds that the media reports on the activities of the company had affected its rights under paragraphs (a) and (c) of s25 of the New Zealand Bill of Rights Act 1990:

25. Minimum standards of criminal procedure—
Everyone who is charged with an offence has, in relation to the determination of the charge, the following minimum rights:

1. The right to a fair and public hearing by an independent and impartial court:
2. …
3. The right to be presumed innocent until proved guilty according to law.

It was accepted by the Council and the defendant that there had been a fair amount of publicity given to the activities of the defendant in respect of odours alleged to have emanated from its premises. Judge Treadwell noted that the Council:

… has been active in advising the public of steps it has taken with a view to remedying alleged odour nuisances. Occasionally an article has omitted the word 'alleged ' indicating that the defendant company is in fact the culprit. Many of the articles also assume that the alleged discharge is in fact offensive and objectionable ... The local press has also pursued the defendant company with some enthusiasm as evidenced by headlines 'Company Causes Stink ' and 'Freephone for Smell Complaints ' followed by an article clearly associating smell with the defendant company.

Judge Treadwell found no a substantial risk that the fairness of the trial would be prejudiced because the defendant had elected trial by Judge alone. Judge Treadwell held there is a difference between media material which may influence a potential jury, and the situation where a case is to be dealt with by a Judge alone.

The defendant also argued that the media reports would influence witnesses. Judge Treadwell held that:

Witnesses are called to give the Court their evidence on oath and I do not find that the views of the local press and or the Regional Council could necessarily lead such witnesses to effectively commit perjury or to have their views affected to such a degree that they would tell the Court that odour was offensive when they were previously of the opinion that it was not.

Judge Treadwell held that the New Zealand Bill of Rights Act 1990 had not been breached, but restricted his comments to trial before Judge alone. Judge Treadwell warned local authorities to be careful about the information contained in press releases:

Whilst the actions of the informant may not in this case lead to an injustice I would observe that informants should not use the media to portray themselves as knights in armour guarding the public good. It is perfectly sufficient for them to indicate to the public that they are taking action in respect of alleged public nuisances but it is in my opinion not desirable nor is it the role of a public authority to make the type of press release which has been made in several instances in relation to the present matter where an official release clearly covers disputed factual matters which are more properly the prerogative of the Court.

Application for a declaration

Franklin District Council v Waiuku Rigging & Labour Hire Ltd and Others [1997] 3 NZPTD 840

The Council applied for an enforcement order against the respondents. The issue was the meaning of a provision of the Council's Transitional District Plan and it was not possible to decide whether or not an enforcement order should be made until the Tribunal decided on the meaning of the provision. The parties agreed to seek a declaration as to the meaning of the Plan provision and then consider the rights of the parties in the light of that determination.

Coalition of Residents Associations Inc v Wellington City Council [2001] W056/01

In this case the Court declined to make the three declarations sought, but granted the parties an opportunity to make further submissions. Further submissions were made but the Court, for similar reasons, declined to make the declarations sought ([2001] W90/2001).

The applicants objected to the visual impact of cables fixed by Telstra Saturn Limited to an overhead line. Telstra Saturn had a certificate of compliance to carry out line work. The Court noted at paragraph 7 that a declaration should not "form a springboard for a prosecution or similar penal sanctions" by reason that an act or omission may have been illegal in terms of the relevant plan.

The Court declined to make the first declaration sought because it "adds nothing to the plan but is effectively an exercise in tautology". The Court was not prepared to make a declaration that a 'communication cable ' has a 'plain and ordinary meaning '. "A declaration if made by the Court must specify the meaning to be attributed to those words not leave it open." Furthermore, a declaration must fit within the jurisdiction under s310 and the Court could not find any jurisdiction to grant even an amended declaration of the type sought. The Court was of the opinion that the third declaration was essentially seeking an 'interpretation ' of a certificate of compliance and there was no jurisdiction to do this under s310.

Application for Declaration by Trolove [1994] 3 NZPTD 586

As a general proposition, it is not appropriate to seek a declaration when the factual position is unclear or is in dispute … there will be cases where the Tribunal will have to make findings of fact in order to determine an application for a declaration. An obvious example would be an application for a declaration as to existing use rights. Nevertheless, in a case such as the present one where I am being asked to determine whether a proposed subdivision is a discretionary or controlled activity, I think it is necessary at the very least, that the essential facts are not in dispute. That is not the case, and consequently I am not prepared to make the first declaration sought by Mr Trolove.

Wellington Regional Council v Burrell Demolition Ltd [2000] W98/00, [2001] HC AP25/01, and [2002] CA 161/01

The Wellington Regional Council applied for declarations as to the correct interpretation of consent conditions granted to Burrell Demolition Ltd. The Wellington Regional Council had brought three prosecutions against Burrell Demolition Ltd but these had not yet been determined.

The Environment Court (W98/2000) declined to grant the declarations sought, mainly because the Court found the declarations "very precise and in the light of the evidence too restrictive. They also may form the basis for further prosecutions" (paragraph 88).

On appeal to the High Court ( 30/04/01, Doogue S, HC, Wellington, AP25/01) the Court noted at paragraph 25 that "the absence of any statement of principles as to the basis on which the discretion is to be exercised under s313 RMA points to the intention to confer a broad judicial discretion". The High Court referred to the Court of Appeal's decision in Electoral Commission v Tate ([1999] 3 NZLR 174) which dealt with the interpretation of statutes. The High Court held at paragraph 32 that "unless there was a sound reason why a declaration should be refused in the present case the Environment Court was obliged to determine the meaning of the conditions in dispute." The High Court considered the exceptions from Electoral Commission v Tate and found none applied. The High Court made a declaration. The decision was appealed to the Court of Appeal (CA 161/01, 18 March 2002).

Referring to Electoral Commission v Tate, the Court of Appeal said Tate does not undermine the discretion to grant relief (at paragraph 5). The Court of Appeal said at paragraph 12:

Although discretionary in nature, the power given to the Environment Court to make declarations is a useful tool in the administration of the Act. We agree with Doogue J that particularly when parties who are faced with a live issue, as these parties were, combine to seek declaratory assistance, the Environment Court should be slow to decline relief. It is not appropriate to seek to compile an exhaustive list of circumstances when it may be right nevertheless to refuse declaratory relief. We also agree with Doogue J that the fact that the Environment Court Judge found the formulation of the declaration sought too precise and restrictive was not a sufficient reason of itself to decline to make any declaration at all.

Further at paragraph 16 the Court said:

We wish to make it clear for the future that the fact that parties may consent to the seeking of a declaration under s313 in a case where there are pending or potential criminal proceedings involving the same issues should not of itself be regarded as carrying much weight in the exercise of the discretion.

Abatement notices

Zdrahal v Wellington City Council [1993] W010/93

The Wellington City Council issued an abatement notice in October 1992 against Paul Zdrahal and Christine Moffat requiring them, as owners of a property in Karori, to remove an offensive and objectionable motif by taking all reasonable steps to paint out a swastika visible on the side of a house.

Zdrahal and Moffat appealed the notice. The Planning Tribunal dismissed the appeal (W10/93). The Tribunal in the decision queried why the Council chose to proceed under s322(1)(a)(ii) of the Act instead of s322(1)(a)(i). At page 2 of the decision:

We do not know why the Council chose to act in this way because rules in its Transitional Plan in relation to control of signs are clear and would not have required this Tribunal to enter into a subjective assessment as to whether the swastika is or is not objectionable.

The Tribunal held that sub-paragraphs (i) and (ii) of s322(1)(a) are in the alternative (they are written so that either are grounds for issuing a notice) and the Tribunal does not have any inherent power to amend the notice. The Tribunal made it clear that on the evidence the appellants could not resist an abatement notice based on the rules in the Transitional District Plan.

Zdrahal appealed to the High Court. The appeal failed and the abatement notice was upheld.

One of the grounds of Zdrahal 's appeal was that, because the two swastikas had already been painted, there was nothing that the abatement notice could require Zdrahal to cease or prohibit him from commencing; the action which was alleged to be offensive was completed and the words of the Act were not applicable. Nothing remained to be prohibited that in ordinary use of the English language could cease.

The High Court held that s17 and 322 need to be read together to enlarge the application of s322, to include a requirement to cease an activity which may have an adverse effect or which may be offensive to that extent. The Court held that the meaning of s322 was plain and intended to apply to continuing effects and continuing activities.

Another ground of appeal was that the swastikas were not offensive or objectionable in terms of s322. If the swastikas were offensive or objectionable, they were not offensive or objectionable to such an extent that they had or were likely to have an adverse effect on the environment. The Court held:

What may be offensive or objectionable under this Act cannot, I think, be defined or prescribed except in the most general terms. Each case will perforce depend upon its own circumstances. What may be offensive or objectionable in a quiet suburban street may not be so in a busy commercial downtown area or in a zone where heavy industry is concentrated … The test must be an objective one. ... In a sense the decision on matters such as this must be subjective because it is what is perceived by the ears or the eyes and its effect on the individual and his personal well-being.

Offensiveness or objectionability cannot be measured by a machine or by some standard with arithmetical gradations. It is a matter of perception and the interpretation of that perception in the mind. The Tribunal in a case like this must transpose itself into the ordinary person, representative of the community at large, and so decide the matter.

Lendich v Waitakere City Council [1999] A077/99

Lendich Construction Ltd, an earthmoving and heavy haulage contracting company, and another party appealed abatement notices issued by the Waitakere City Council. The notices required that the property cease to be utilised as a storage and maintenance depot. The appellants had three grounds of appeal; one of these grounds was that there were existing use rights attached to the site as the activity had been carried on since 1956.

The Court found that existing use rights had been established. The Court also found that it had jurisdiction to amend the notice by imposing appropriate conditions to mitigate the adverse effects of the activities. The proceedings were adjourned to allow the parties an opportunity to agree on appropriate conditions.

The Council relied on s17 of the RMA and this gave rise to two jurisdictional issues:

1. Were the abatement notices worded adequately to allow the Council to rely on s17?
2. Did the Court have jurisdiction to amend the abatement notices?

The Court considered three decisions: Rees v Whangarei District Council [1996],Dunn v Clutha District Council [1996] and Zdrahal v Wellington City Council [1994] (HC).

In Rees, Judge Treadwell held that it was "highly desirable" that an abatement notice should contain references to the precise subsections of s322 which the appellant is alleged to have infringed. Judge Treadwell also said that the absence of such a reference should not necessarily be elevated to a status where such absence would cause the notice to become defective. The Court in Lendich agreed with Judge Treadwell.

In Dunn, Judge Jackson said:

Section 324 of the Act directs what the form and content of an abatement notice are to be. In particular, section 324(b) requires that the reasons for the notice are to be given. We hold that the obligation to give reasons is mandatory in a "summary judgment" proceeding such as an abatement notice which puts the onus on the appellants to take action to set it aside. In particular the appellants should not have to refute reasons not referred to in the notices. Accordingly we hold that we have no jurisdiction to support the abatement notices under section 17, because the wording in section 17(3) was not raised as a reason for the notice.

In Zdrahal, one ground of appeal was that the abatement notice was defective because it did not comply with Regulation 27 of the Resource Management (Forms) Regulations 1991. The Court held that Zdrahal's objections:

… are based on a highly technical and mechanical application of the regulation and the form which insists upon an exact and complete compliance with the form without any regard to the substance of the matter. … In its entirety the form fully and adequately complied with the regulation and the prescribed form and clearly informed the appellant of all necessary and relevant matters. It is important to note that the regulation itself permits a form "to the like effect", thus emphasising the importance of the substance.

The Council in Lendich submitted that Judge Jackson in Dunn does not say that s17 must be expressly referred to, and the tenor of that decision is that the grounds set out in s17(3) must be identified in the reasons for the abatement notice to allow reliance on s17.

The Council submitted that the abatement notices contained grounds which, taken collectively, address the substance of s17(3)(b).

Clauses 2(vii) and 3(ii) of the abatement notice stated:

2 (vii)    That use of the property as a depot results in actual or likely adverse effects on the environment, including-

1. Noise and vibration from heavy vehicles including trucks entering and exiting the property;
2. Visual/aesthetic impact on the amenity values of the environment;
3. Use of the property as a depot being incompatible with the use of surrounding properties as a residential area;
4. Dust generated by vehicular use of the property as a depot, particularly during summer months.

3 (ii)    This action is necessary to ensure compliance with rules 10 and 10.4 and rules 2, 8, 10.4 and 14.1 of the Proposed and Transitional District Plans respectively and to remedy the adverse effects and likely adverse effects referred to herein".

The Court in Lendich held that:

We consider that it is important for an abatement notice to fully and fairly inform the recipient not only of the action they are required to take, or refrain from taking, but also of the grounds upon which the notice is issued.

It is clear from the cases cited to us and other decisions of the Tribunal and this Court that Councils need to take considerable care in the drafting of their notices because of the consequences which flow from them. However, the Court should, in our view, take a robust attitude to objections and arguments based on technical and mechanical non-compliance with the form and the regulation without regard to the substance of the matter. It is a question in each case as to whether the notice taken in its entirety adequately complies with the regulation and the prescribed form and clearly and fairly inform the recipient of all necessary and relevant matters.

The Court held that the notices addressed the substance of s17(3)(b) and also the substance of s332(1)(a)(ii). The grounds contained in clause 2(vii)(a)-(d) all relate to adverse effects, and clause 3(ii) of the notices refers to the need to remedy adverse effects. The Court also held: "That the appellants have not been misled is shown and that they adduced evidence relating to the adverse effects and proffered conditions designed to mitigate them."

Black v Southland Regional Council [1994] C104/94

The Southland Regional Council issued an abatement notice to the Black family requiring them to lower the crest height of a stopbank and to remove a 53-metre extension to the stopbank. The Blacks appealed the abatement notice.

The Tribunal was unable to find on the balance of probabilities that the Blacks had added to the pre-February 1991 height of the stopbank. The Tribunal was not persuaded that the stopbank, whether it had been raised or not, was in any material way aggravating the effects of flooding on two other properties. Therefore, even if the Blacks had raised the height of their stopbank, the Tribunal would not be prepared to require the Blacks to lower it to mitigate adverse effects from flooding. The abatement notice was cancelled.

The Blacks applied for costs and $12,000 was awarded against the Council (C30/95). One of the arguments raised by the Blacks was that the enforcement officer did not have reasonable grounds for believing that the appropriate circumstances existed before serving the notice.

The Planning Tribunal determined the proceedings in favour of the Blacks on other grounds, but addressed the submissions made as to whether the enforcement officer had reasonable grounds for belief. The enforcement officer who issued the notice had not inspected the stopbank. The enforcement officer was briefed by operations staff, was present at a meeting of the operations committee of the Council, reviewed the file and discussed matters with another enforcement officer.

The Blacks argued that the enforcement officer who issued the notice was relying on hearsay evidence and this was insufficient. Counsel for the Blacks referred to various criminal law cases in support of his argument. The Court at page 18 held:

Section 322(4) of the Resource Management Act 1991 does not prescribe any particular manner in which an enforcement officer is to be satisfied that he or she has reasonable grounds. It seems to us, however, that if, in the context of the criminal law, hearsay evidence can provide sufficient information upon which to obtain a search warrant or upon which the Commissioner of Police can issue a certificate, then, depending of course on the nature of that evidence, it should be sufficient to provide an enforcement officer with reasonable grounds for belief for the purposes of section 322(4) of that Act.

The Court found that the enforcement officer had sufficient information to issue the abatement notice.

Christchurch City Council v Blackett [1993] CRN 3009007407

An abatement notice was served on Mr Blackett, informing him that he had been using land at Jessons Road as an engineering business; and that this contravened the rules in the Rural 4 zone of the Paparua section of the Christchurch City Transitional District Plan relating to activities permitted in that zone.

The notice was served on 9 December 1992. The notice required Blackett to cease using the land for this purpose by 31 December 1992. Blackett did not appeal the notice.

On 12 January 1993 the enforcement officer found that the engineering business was still operating. The officer said he had observed the defendant, his brother John, and three other men in overalls in the workshop. He observed two men working on vehicles and he spoke to the defendant, who did not say much, except that a friend of his was working on his own vehicle.

The defendant said that before he received the abatement notice he had decided to move his business and had taken steps to do so. He said that when the enforcement officer visited his property in January 1993 he was not conducting the motor engineering business at all. Some engines were still there, but they were being progressively removed from the property. Indeed some were being removed on 12 January.

Blackett said that he did some work on his own Commodore that day and a friend of his was doing some work on his own Landrover. He explained that of the vehicles which the Council officer had photographed on 12 January, one belonged to his flatmate, another belonged to his uncle, a third belonged to his brother and others belonged to a friend of his. He denied completely that he had carried out any motor engineering work as a business since the end of December 1992. He called two witnesses, who confirmed his evidence.

Judge Skelton dismissed the charge because he was not satisfied beyond reasonable doubt that on 12 January 1993 the defendant was acting in contravention of the abatement notice (ie, the defendant was not using his property at Jessons Road for a motor engineering business "Repowers"). The Judge said in his decision:

I am in no doubt that some motor vehicle repair work was being carried out at 37 Jessons Road on 12 January 1993, and that remnants of the engineering business were still on the property that day. However I cannot say that the business itself, and in particular the business relating to Repowers, was being carried out on that property at that time.

It may be of assistance for me to add that if the defendant intends to continue using the property for the purpose of repairing motor vehicles, or allowing his friends to do so, he will have to be very careful about the nature and extent of that activity. He could still be in breach of the Transitional District Plan. However, for present purposes I have to accept the explanation that he and his supporting witnesses have given and that being so this information is dismissed.

Schmuck v Far North District Council [2000] A026/2000

Schmuck appealed an abatement notice concerning the operation of his boat yard at Ōpua. The grounds of appeal included:

1. the abatement notice was flawed and contradictory because it did not specify the particular rules in the plan which had been breached
2. the reference to the resource consent was misleading.

The reasons given in the notice were:

Your [sic] are undertaking activities on the esplanade [sic] reserve including but not limited to the following in breach of district plan rules and without having obtained the necessary resource consent. Work carried out on boats including…

Judge Sheppard did not accept the grounds of appeal and held:

1. it is plain that reason (a) in the abatement notice is an assertion that the activities described are not authorised by the plan or by a resource consent
2. a copy of the consent was attached to the abatement notice and the reference to the consent was not misleading.

Oliver v Marlborough District Council [1999] W126/99

An abatement notice was issued by the Marlborough District Council to Oliver concerning a mooring laid by Oliver in Queen Charlotte Sound. Oliver appealed the notice. One of the grounds of appeal was that the notice was invalid because it did not state section 322 and the subsection on which the Council relied. Oliver 's lawyer relied on McNoe v West Coast Regional Council.

Judge Kenderdine:

1. held that there is no requirement in s324 and Form 24 (now Form 48) to state the subsection of s322 which is relied upon
2. followed Zdrahal , in which the High Court held that the question is whether in its entirety the notice fully and adequately complies with the form, and clearly informs the recipient of all necessary and relevant matters.

Whakatane District Council v Byrne [1993] CRN 3087005974 and 6749

Abatement notices were served on the Byrne family. The abatement notices required removal of a signboard which contravened the Transitional District Plan. The charges were dismissed because the abatement notices had the following defects:

• The notices did not specify the date on or before which the required action was to be taken.
• The notices misstated the deadline for lodging an appeal.
• Each notice required removal of '"a signboard" whereas there were in fact two signboards involved (one signboard was above the other.)

Amor v Gisborne District Council [1999] A145/99

The Gisborne District Council issued an abatement notice to Amor, a poultry farmer, requiring removal of all poultry. The reasons for the notice were "to avoid and remedy the actual and adverse effects on the environment of the effects of the flies" caused by the operation of the poultry farm. Amor applied for a stay.

The Court granted the stay and held:

1. It was unreasonable to require Amor to remove 17,000 birds.
2. The imposition of less extreme fly control measures would be more appropriate.

Enforcement orders

Berhampore Residents Assn Inc v Wellington City Council [1992] W095/92

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 paragraphs (a)-(d) of s314(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 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 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 an attempt to resolve the differences between the parties the Tribunal suggested 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.

In decision W92/93 the Tribunal held that a meaningful order could not be made because of the complexity of enforcement.

The Tribunal then determined in decision W92/93 that the draft by the Tribunal might go beyond what is reasonable and might be difficult, if not impossible, to police. 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 was 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.

Balfour v Central Hawkes Bay District Council [2006] CA174/06

This case involved an application for leave to appeal to the Court of Appeal (CA174/06). In a decision on 27 June 2005 the Environment Court had granted enforcement orders and awarded costs against the applicants, David Balfour and others, relating to keeping 160 dogs on their property. On appeal, Justice Miller in the High Court concluded that the enforcement order and costs award had been too extensive. The applicants sought leave to the Court of Appeal in the hope of having the order and costs set aside in their entirety.

The applicants took issue with a decision of the Environment Court, confirmed in the High Court: that any existing use rights they might have had for keeping the dogs, did not prevail over their statutory duty under s16 to adopt the best practicable option to keep noise to a reasonable level. (The applicants had a resource consent from 1983 to keep 40 dogs, then between 1992 and 1999, kennels were a permitted activity with no scale limitation.)

The Court of Appeal recognised that s10 (existing use rights) provided an exception to compliance with a district plan, but not to the s16 duty for which the council had sought the enforcement order. The applicants then had to rely on s319 (decision on application), if they were to resist the order. The Court stated that s319 does not explicitly provide for a defence based on existing use rights, rather on compliance with current rules, resource consents or designations where the adverse effects in respect of which the order was sought were expressly recognised by the (plan, consent, or designation) decision-maker at the time. There was also no evidence that the person who approved the 1992 plan and made kennels permitted at the applicants ' location, expressly recognised the adverse effects of excessive noise from keeping dogs. On these grounds the appeal was rejected.

Dunn v Smiturnugh Ltd and Others [2000] A047/00

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 application was made under s79(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 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 s79(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.

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.

Water shortage directions

Jordan v Marlborough Regional Water Board [1982] 9 NZTPA 129 (PT)

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 four 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 s20, 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 s24D or, in an emergency, s24E. 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.

… 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.

Waikato Regional Council v Amrat Bhana and Hira Bhana Co Limited [1995]

Judgment as recorded by Karenza de Silva (there is no written decision)

In relation to the company, the background was as follows. The company owned a market garden, located in a valley with a small stream running through it, dammed at spasmodic intervals to serve a number of different garden operations. If water was short and upstream owners of a dam chose to irrigate their property, progressively downstream users would find themselves lacking of water. Environment Waikato issued a series of water shortage directions to operators in the valley, indicating a worsening situation as tighter measures were imposed. All the notices made it clear that the only purpose of extraction was for domestic use or fire-fighting or stock usage. The defendant company received and was aware of the orders.

On 3 February a further direction imposed a total restriction on the taking of any water for irrigation from the stream catchment. The notice erroneously referred to s199 but was fully within the powers of Environment Waikato; and it was perfectly clear what the notice intended to do. Judge Treadwell was satisfied that no one would have been taken unawares.

The subject property had two dams; both dam 1 and 2 were within the catchment referred to in the notices. The proposition by the defence was that water might at any stage be extracted from the lower dam and moved to the upstream dam, provided the water was not used for irrigation. The Court found that it was idle to suggest if water was drawn and stored and then used, that the initial extraction was not for irrigation. The defendant was blatantly operating on a 'me-first basis ', resulting in downstream users being deprived of water, when the fair sharing of the resource was an important purpose in the Council's regime.

In sentencing, the Judge stated that the taking was deliberate but conceded that, on days other than no-take days, there may have been room for misunderstanding that, provided the defendants did not irrigate, they could store water.

However, the Judge also stated that the factor that weighed most heavily was the public interest. He was 'puzzled ' as to why the defendants did not use the deep bore on their property. There must be an element of good faith between all growers. This water is a scarce resource in times of crises. To allow one grower, particularly on a large scale, to get away with putting his interests first was an unacceptable situation. The company was in good standing financially, making a profit of $500,000 per year amongst four families. The only factor that deterred the Judge from imposing a very substantial fine was that no harm came as a result of the breach as this was discovered fairly early. The defendant company was fined $12,000 and ordered to pay costs of $1,000.

NOTE : Environment Waikato was not able to prove beyond reasonable doubt that Mr Amrat Hira Bhana was personally liable, because the garden was run by two brothers and the council did not know which was responsible. Mr Amrat Hira Bhana 's evidence was that the running of the market garden was left to his brother. There was no evidence that water was pumped from dam 2 to dam 1 under the authority of Mr Amrat Hira Bhana or with his permission or consent; and there was no evidence that Mr Amrat Hira Bhana knew or could reasonably be expected to have known that the water was being pumped from dam 2 to dam 1.

Infringement notices

Auckland City Council v North Power Ltd [2004] CRN 3004510188 and CRN 3004510191

The defendant had pleaded guilty to two charges under s338(1)(a) for clearing indigenous vegetation without a resource consent in contravention of the district plan.

Approximately 72 informations (charges) had been laid by the informant council. Discussions between the parties resulted in an agreement whereby all but two of the charges were withdrawn and the defendant would elect summary jurisdiction and would plead guilty. The council then said it was not seeking any fine in addition to the enforcement order (which would cover remediation work and the recovery of some costs). Given all these factors the District Court said at paragraph 23:

Counsel must anticipate that the Court is likely to view this as an abuse of the process of the Court. Criminal proceedings should not be used as a means of achieving civil remedies. Reparation for harm done is certainly one of the purposes of sentencing under s7 of the Sentencing Act 2002, but it sits alongside purposes such as accountability, denunciation and deterrence - the last of these being particularly important in the RMA context as Machinery Movers makes clear.

The Court was also 'surprised ' there was no victim impact statement, which prosecutors are obliged to put before the Court (s17 Victim 's Rights Act 2002). The Court considered the difficulty in assessing the land owners ' losses in a sentencing hearing was a 'special circumstance ' which would make imposing a sentence of reparation inappropriate.

The defendant was ordered to pay a fine, and an enforcement order was made to require remediation work to be done.

Auckland Regional Council v Biogas [1993] CRN 2048024848/49; [1993], AP 199/93; [1994] CA 526/93; [1994] CRN 2048024848/49

The Auckland Regional Council prosecuted NZ Biogas Industries Ltd ( 'Biogas ') for discharge of a contaminant into water and onto land. A large rubber container of decomposing waste from a potato-processing factory burst, and a substantial part of its contents escaped into a stream. Biogas was charged with contravention of s15(1)(a) for discharge of a contaminant into water and s15(1)(b) for discharge of a contaminant onto land.

The District Court and the High Court held that in the definition of 'discharge ', the words 'allow to escape ' implied awareness of the discharge and, where it was not established that the defendant was aware of the contaminants being discharged, the defendant did not 'allow ' the contaminant to escape.

The Court of Appeal, in overturning the decision, held that it was difficult to see room for any mental element in the act of discharge; but that a person could not be said to discharge the contaminant unless there is a causal connection between the person and the discharge. In each case the causal link will be an issue of fact.

The Court of Appeal found:

… a person allows a contaminant to escape who fails to take the precautions that a reasonably prudent person in the position would take to prevent that escape ... failure to investigate and take appropriate preventive steps would amount to allowing an escape should it subsequently occur.

The Court held that the absence of engineering advice on the design, construction and testing of the rubber container constituted 'allowing to escape '.

The Court allowed the appeal by the Auckland Regional Council and remitted the matter to the District Court for further consideration of the charge, because the District Court had not dealt with the statutory defences relied upon.

Auckland City Council v Turner [1995] CRN 5004043089-3126 and 3191-32280; [1995] M1410/95

The Auckland City Council laid 38 charges against each of the defendants, Mr and Mrs Turner, relating to alleged illegal earthworks, construction of a concrete pad and retaining wall, and removal of a pūriri tree and damage to other trees in the course of the works. The charges alleged contraventions of the Auckland City Council's Operative (Transitional) District Plan and its proposed district plan.

The defendants applied for orders staying or dismissing the charges on the ground that they could not be prosecuted for breach of both plans.

The Court held that the council could proceed to a hearing on prosecutions alleging contravention of rules of an operative and a proposed district plan in respect of the same act, that this would not amount to an abuse of process, and it would not be oppressive or vexatious:

The scheme of the Resource Management Act involves a territorial authority having both an operative district plan, and a proposed district plan intended to replace the former when submissions and appeals have been decided and any consequential amendments made. Unlike the earlier legislation which it repeals, the Resource Management Act gives effect to the rules contained in a proposed district plan. Those affected have to comply with them as well as with rules of an operative district plan. It is to be expected that rules in operative plans and proposed plans may apply to the same circumstances.

… Parliament has deliberately departed from the previous law, and provided that while an operative plan and a proposed plan exist in the same district, both have effect at law. A person who wishes to carry out an activity regulated by both has to comply with or obtain resource consent in respect of both. Failure to comply with or obtain resource consent in respect of both could amount to separate offences, even though they relate to the same act.

The Turners applied to the High Court for judicial review of Judge Sheppard 's decision. The High Court dismissed the application. The High Court made it clear that when it came to sentencing the position would be different. No defendant should be punished twice for the same conduct. At page 5 of the High Court decision, Fisher J stated:

(…) there is usually no point in entering more than one conviction for any given act and to do so exaggerates the appearance of culpability for those considering the record of convictions on some future occasion.

Davies v Ministry of Transport [1989] 3 NZLR 300

The Court of Appeal held that the appeal jurisdiction of s115 of the Summary Proceedings Act 1957 arises only when there has been a "determination by the District Court of any information or complaint", and this requires that an actual judicial decision has been made.

A fine recorded under s21(5) of the Summary Proceedings Act 1957 without any judicial intervention by the District Court is not a determination of an information by the District Court; it does not give rise to a right of appeal under s115 of the Summary Proceedings Act 1957. The Court held that the defendant does not have a right of appeal if an order is made under s21(5) of the Summary Proceedings Act 1957. Richardson J said:

Indeed, the s21 procedure was introduced to provide an automated system of dealing with the very large number of minor matters that had been going before the Court in the minor traffic offence jurisdiction under the former s21. If the person concerned fails to respond to the infringement notice and reminder notice, the informant Ministry's computer discs then generate, through the District Court computer system, the record required under s21(5) and the appropriate notice of fine. Nothing in that process can be characterised as a determination of an information by the District Court. What that expression contemplates is an actual judicial decision.

Van Kan v Auckland City Council [1992] AP98/92

An infringement notice was issued to Van Kan, who did not request a hearing and did not pay the infringement fee. Van Kan filed an appeal in the High Court. The High Court dismissed the appeal and held that there was nothing on which Van Kan could base an appeal because:

There has to be a 'determination ' of a District Court before the right of appeal arises; infringement notices not the subject of requests for hearing cannot give rise to an appeal.

Barker J said:

I can only suggest to the appellant and those who find themselves in the same situation as he, that it is absolutely imperative for a citizen wishing to defend a charge which is the subject of an infringement notice, that notice of a desire to have a hearing is given within the time limit prescribed.

Barker J commented that there was the possibility open to Van Kan for a judicial review, but noted that there could be jurisdictional problems with an application for such a review.

The High Court also considered whether Van Kan could apply for a rehearing under s75 of the Summary Proceedings Act 1957. The Court held that s75 of the Summary Proceedings Act 1957 provides for a "rehearing after a defendant has been convicted on a hearing of any information or complaint".

The Court held that s78B of the Summary Proceedings Act 1957 gives limited power to correct irregularities in proceedings for infringement notices. A rehearing may only be ordered if the defendant did not receive a reminder notice or a copy of the notice of hearing, or if there had been some other irregularity in the procedure. The Court held that Van Kan had no grounds to apply for a rehearing.

Hall v Ministry of Transport [1991] 2 NZLR 53 (CA)

An infringement offence notice was issued to Hall for speeding. Hall did not pay the infringement fee. A reminder notice was issued to Hall.

Hall made a written request for a hearing. The Ministry of Transport (MOT) filed a notice of hearing. One of the defences raised by Hall was that the infringement notice was invalid because it did not indicate that Hall 's rights to dispose of the matter by paying the fee continue until 28 days after service of a reminder notice.

The form did not comply with s42A(7)(g) of the Transport Act 1962, which requires infringement notices to contain a summary of the provisions of s21(10) of the Summary Proceedings Act 1957. The MOT had in fact used the form prescribed by the Transport (Infringement Offences Notices) Regulations 1987, but there was a mistake in the form.

Hall did not claim there had been any miscarriage of justice. He did not say the infringement notice misled him. He did not pay the infringement fee and exercised his right to request a hearing. Hall 's defence that the infringement notice had an error in it was a defence on a technical ground.

The Court of Appeal held that the infringement notice had defects but, there being no miscarriage of justice, s204 of the Summary Proceedings Act 1957 precludes it or the proceeding from being held invalid. The Court of Appeal also held that s78B of the Summary Proceedings Act 1957 only applies if the defendant is deemed, on the filing of a reminder notice, to have been ordered to pay a fine and costs, or if the defendant has been so ordered on a hearing following a notice of hearing.

The Court held that s78B cannot be invoked before an order adverse to the defendant has been made or is deemed to have been made. The Court said that s78B:

… is interesting as revealing an appreciation by Parliament that irregularities could well occur in implementing the rather complicated infringement notice procedure. It does not purport to supersede s204, but gives a useful specific power, which a District Court Judge may exercise if the irregularity does not come to light until after an order has been made. If an irregularity is drawn to notice earlier, s204 is available and it would be absurd to insist on waiting until the s78B stage.

Greenfield v Police [1999] AP216/98

Greenfield appealed a fine of $60 for speeding. Greenfield argued that the notice of hearing had a number of errors in it. The High Court agreed that there were three errors in the notice of hearing.

The first error was that the registration number of the motor vehicle was incorrect, the second was that the date of issue of the infringement notice was incorrect, and the third was that the date of the offence was incorrect.

However, the Court held that there was no miscarriage of justice and the notice of hearing was not invalid because the information in the infringement notice and the reminder notice was correct and therefore Mr Greenfield could not have been in any doubt as to what was alleged against him.

Adam v Wellington City Council [1998] AP18/98

Adam was issued with a notice for a parking infringement, and a reminder notice. Adam wrote to the council admitting liability and provided an explanation. The council filed a notice of hearing in Court and arranged for the notice of hearing to be served on Adam. This meant that a hearing took place in open Court rather than being dealt with by Justices of the Peace in chambers. As the hearing took place in open Court, $95 (now $100) of Court costs was imposed rather than the $25 (now $30) that would have been imposed in chambers.

The council had not followed the correct procedure. Adam appealed. The High Court held that the notice of hearing should not have been served on Adam. The Judge said:

In my view it is entirely undesirable that a stated procedure should be varied unilaterally by the informant even if the byproduct of it gives an opportunity to be heard. The Act clearly in these circumstances, contemplates no opportunity of being heard other than by way of submission. To create an alternative way of proceeding is confusing and in my view unlawful, and it should not have been done .

Police v Ellis [1997] CRN 6085009178

The defendant, Mrs Ellis, was issued with an infringement notice about 41 days after the date of the alleged offence. The defendant 's husband, who is a barrister, wrote to the Police about one week after the issue of the reminder notice and asked the Police to withdraw the infringement notice.

Mr Ellis told the Police that the 41-day delay between the date of the offence and receipt of the notice by Mrs Ellis was too long and potentially prejudicial to her defence because: " It is hard to recall if you were speeding and if you have a defence that long ago, eg, you accelerated out of the way of a potential accident, Police or other emergency vehicle".

Mr Ellis referred the Police to decisions where the Court has dismissed infringement notice proceedings because of delays.

The Police replied with a letter which the Judge described as "a knee-jerk standard response generated by computer, rather than a considered reply dealing with the quite proper concerns raised by Mr Ellis". The letter from the Police stated:

Please be assured that your letter has been read in full and has been given due consideration. It has been decided that the notice should not be waived in this instance.

A notice of hearing was issued by the Police and the proceedings were adjourned, once by consent and on the second occasion despite Mr Ellis 's objection. Mr Ellis provided the prosecution with lengthy legal submissions. The Judge said:

It has indeed been something of a revelation to consider the body of jurisprudence which has built up in recent years on the topic of speeding offences.

The Police withdrew the charge because they discovered an error in the reminder notice: there was no identifying name or officer identification number on the notice.

Mr Ellis applied for costs of $5,000 plus $146 disbursements against the Police. Section 5(1) of the Costs in Criminal Cases Act 1967 provides that where an information is withdrawn, the Court may order that the defendant be paid such sum as it thinks just and reasonable towards the cost of his/her defence.

There is no presumption for or against granting of costs. The Judge considered the circumstances in s 5(2) to which the Court shall have regard in deciding whether to grant costs and in what amount. The Judge found that a costs award was justified.

Section 13(3) of the Costs in Criminal Cases Act allows the Court to exceed the maximum scale of costs if it is satisfied, having regard to the special difficulty, complexity or importance of the case, payment of greater costs is desirable. The Judge considered that the case was neither difficult nor complex, nor was it of any special importance as far as criminal law is concerned. The Judge ordered the Police to pay costs according to the scale of fees payable under the Costs in Criminal Cases Regulations 1987 of $678 plus disbursements of $146.

Interfreight Ltd v Police [1997] 3 NZLR 688 (CA)

The Court of Appeal held that overloading infringement fees set out in Part III of the Second Schedule of the Transport Act 1962 are mandatory for the following reasons.

1. Section 69B(2)(b) of the Transport Act states what the penalty for an overloading offence shall be. Prima facie it lays down a mandatory penalty. Section 69B(2)(b) provides: "The penalty for the offence shall be the appropriate overloading infringement fee or the total of those fees calculated in accordance with Part III of the Second Schedule of this Act."
   
   
2. The reminder notice includes the note:

" If the offence alleged against you is an OVERLOADING OFFENCE, you should not make written submissions as to penalty as the penalty for the offence is fixed and may not be reduced by the Court".

The Court of Appeal rejected the argument that the defendant 's right to request a hearing is futile if the defendant cannot challenge the penalty. The Court of Appeal held s21 of the Summary Proceedings Act 1957 is a general provision.

The specific provision in s69B(2)(b) overrides the general provision in s21. The Court held that the option in the summary of rights in the infringement notice to make submissions as to the offence is to allow the defendant an opportunity to challenge the calculation of the infringement fee or to contend that the overloading was not to the extent alleged.

Osment v Police [1998] AP65/98

The High Court held that the infringement fees for excess weight offences and distance recorder offences are not mandatory because:

1. an excess weight offence is not an "overloading offence" as defined in s69B of the Transport Act
2. the Police do not have to use the infringement procedure for excess weight offences (the Police have to use the infringement procedure for overloading offences under s69B of the Transport Act)
3. the question of penalty is open to submission.

Auckland Regional Council v Westgate Properties Ltd and Others [2000] T300600

Westgate Properties ('Westgate '), WGS Construction Ltd ('WGS ') and Cato Consultants Ltd ('Cato ') pleaded guilty to informations (charges) which related to:

1. earthworks and construction activities, and in particular the lack of suitable erosion and sediment control measures as required by conditions of a resource consent
2. discharge of untreated sediment into a watercourse
3. breach of two abatement notices.

The offences occurred during the construction of Westgate commercial centre on a 12-hectare site, involving a $26.5 million contract. Westgate was the principal developer and owner of the land, WGS was responsible for the construction of the complex, and Cato were the surveyors and earthworks engineers on-site.

The charges related to earthworks and construction activities, and in particular the lack of suitable erosion and sediment control measures as required by the conditions of a resource consent.

Westgate pleaded guilty to three charges. Two of these charges were for contravention of abatement notices and were continuing offences for 25 days and 55 days, respectively. WGS pleaded guilty to two charges, one of which was for a continuing offence for a period of 159 days.

Cato pleaded guilty to one charge for a continuing offence over a period of 159 days.

Environment Judge Whiting, in sentencing the defendants, factored in a sum of $100 per day for the continuing time of the offending. The total of the fines imposed was $87,800 plus prosecution costs of $16,000. The fines for the continuing offences were as follows.

• Westgate was fined $8,500 for breach of an abatement notice, made up of an initial fine of $6,000 plus $100 per day for 25 days.
• Westgate was fined $11,500 for breach of the other abatement notice, made up of an initial fine of $6,000 plus $100 per day for 55 days.
• WGS was fined $25,900 for breach of s9(3), using land contrary to a rule in a regional plan, made up of an initial fine of $10,000 plus $100 per day for 159 days.
• Cato was fined $21,900 for permitting a breach of s9(3), by permitting land to be used contrary to a rule in a regional plan, made up of an initial fine of $6,000 plus $100 per day for 159 days.

Prosecution

Auckland Regional Council v Horticultural Processors Ltd [1993] CRN 2090016530

Charges were laid for discharge of a large quantity of kiwifruit waste against several parties including: HPL, who operated a kiwifruit processing plant; Mr Smith, an independent cartage contractor who entered into an agreement on HPL 's behalf with Mr Holst; Mr Holst, who agreed to the dumping of kiwifruit slurry into a gully on his farm; and Mr McCann, who subcontracted to transport the slurry.

Judge Kenderdine, because of the wording of the information, dismissed the charge against HPL because the council had not established beyond reasonable doubt a link between HPL and Mr Smith as agent or employee, at page 10 of the decision:

If the information sheet had not added 'particulars ' but relied simply on a charge pursuant to s15(1)(b) simpliciter [unconditionally or without qualification] or s15(1)(b) and s340 in the alternative, then I would have no hesitation in convicting the company on a charge made pursuant to s15(1)(b). In this case however, the informant qualified the actions of the company by assuming it was carried out by Mr Smith acting as the company 's employee or agent in the discharge of the contaminant.

The Judge indicated that, if during the hearing the difficulty of the wording of the charge against HPL had been apparent, the information could have been amended.

Hutt City Council v Thomson [1994] CRN 3032012451

The Hutt City Council laid an information against Mr Thomson for discharge of waste material including asbestos onto land in contravention of a rule in the Council's transitional district plan. The information alleged a breach of s15(2)(a). At the hearing, the council applied to amend the information to allege a breach of s9(1). Section 15(2)(a) of the RMA refers to a breach of a regional plan. The Hutt City Council cannot lay a charge under s15(2) because it is not a Regional Council. Judge Skelton refused the application to amend the information:

... especially after this length of time, I do not think this Court should encourage local authorities to commence proceedings in a way that really ought to have been seen as being defective from the start. A simple reading of section 15 of the Resource Management Act 1991 makes it quite clear that the informant in this case, could not have sustained a claim that there had been a breach of that section.

Judge Skelton also took into account that the offence was alleged to have occurred more than 12 months before and the information was withdrawn by leave.

Wellington City Council v Shell Oil and Cudby [1993] CRN 2032012948/51

In this case, a successful defence was based on s340. Shell established that it had taken all reasonable steps to prevent an offence and could not have known that the other defendant, Cudby Motors, had deactivated all of the safety measures designed to warn of a leak of petrol. Shell, when faced with a spill of some magnitude, acted immediately to remedy the situation.

Shell was acquitted of the charge and Cudby Motors was convicted.

Northland Regional Council v Tranz Rail Ltd [1996] CRN 6088003518, 6088003533-3534

The Northland Regional Council prosecuted Tranz Rail Ltd for discharge of urea formaldehyde:

1. to land in circumstances resulting in the discharge reaching a tributary of a stream
2. vapour to air in consequence of the discharge to ground
3. from trade premises onto land.

About 14-15 tonnes of urea formaldehyde resin glue spilt out of a butanol bladder bag on the back of a truck trailer at the Ōtiria Tranz Rail rail yard. Tranz Rail argued that a causal link was not adequately established between Tranz Rail and the spillage: the council had failed to prove beyond reasonable doubt the discharge resulted from operations that Tranz Rail was in a position to control.

Tranz Rail also argued that it did not allow the urea formaldehyde to escape, in that - even if it was held that Tranz Rail was aware of the facts from which a reasonable person would conclude a spill of urea formaldehyde could occur - the evidence did not establish that Tranz Rail failed to take precautions a reasonably prudent person would take to prevent the spill.

Tranz Rail had an arrangement with Juken Nissho Ltd to deliver formaldehyde resin glue from Tauranga or New Plymouth to the Juken Nissho mill at Awanui. Tranz Rail employed Kaitāia Transport Ltd as a subcontractor to undertake the road transport phase from Ōtiria to Awanui. Kaitāia Transport had an arrangement with Juken Nissho to use bladder bags as containers for the glue. The glue is transferred at the Ōtiria rail yard via hoses connected to a pump from the rail tankers to the bladders placed on the flat decks of Kaitāia Transport 's trucks and trailers.

About three months before the discharge, the council had expressed concern to Tranz Rail about a possible mishap in relation to the urea formaldehyde transportation.

The Court found, as a result, Tranz Rail was well aware of the need to take steps to guard against the spillage occurring through the urea formaldehyde transfer operations from the bulk rail tankers to the bladder bags. Tranz Rail issued instructions to its staff at Ōtiria, which included an instruction that a Tranz Rail employee must be in attendance at all times.

On the date of the incident, the urea formaldehyde transfer operations were not properly supervised. The bladder bag leaked and then burst. The Court found that Tranz Rail knew there was a risk of spillage, but had not developed adequate steps and measures to ensure its urea formaldehyde transfer operations, which it was in a position to control, were in fact properly controlled.

Tranz Rail was convicted and fined.

R. v Lorenzen [2003] T031951

The defendant was charged with altering native and exotic vegetation in contravention of the District Plan and without a resource consent. The charges were representative, and in half of them he was charged in his own right and in the other half he was charged with permitting such offences.

The defendant applied to be discharged under s347 of the Crimes Act 1961, on the basis that it was an independent contractor who altered the land. The contractor was employed by a company who owned the land. Mr Lorenzen was the sole director and shareholder of that company. The contractor could not be found and the company was never charged. [In the ruling of 4 September 2003 it was stated that the company was never charged and the Judge proceeded on that basis. However in the sentencing decision of 19 December 2003, council advised that charges had been laid but withdrawn after the company went into liquidation.]

The defendant argued that, as a director of the company, he could only be charged pursuant to s340(3) Resource Management Act 1991 and that liability only arises if a company is convicted.

The Court found there was ample evidence to suggest Mr Lorenzen was in control and organising or permitting such things to happen on the land. The Court concluded at paragraph 26:

In summary the Crown here does not need to rely upon ownership of the land. It does not need to charge the company to be able to proceed against this defendant. His liability could arise either directly through s338(1) as the person contravening the relevant provision, or permitting its contravention, or alternatively his liability could arise as a party under s66 of the Crimes Act. There is sufficient evidence referred to in the depositions to show his personal involvement in the control of what was happening on this land and in my view a reasonable jury, properly instructed on the law, could well come to the conclusion that he is guilty of the offences charged.

Auckland Regional Council v AFFCO Allied Products Ltd [2000] CRN 9048006616-9

AFFCO pleaded not guilty to four offences of discharging of trade waste effluent from a hide-processing plant and fellmongery onto land (a stormwater system) in circumstances where it entered a tributary of the Puhinui Creek estuary.

AFFCO had installed a number of systems to prevent unauthorised discharge of trade waste from its plant. This included 'first flush systems ' (by which an initial quantity of water was directed to the trade waste sewer as a precautionary measure) from the stormwater drains. A problem occurred when a contractor cleaning out cesspits overloaded or blocked the valve diverting stormwater to trade waste, resulting in the discharge. The contractor had been discharging into the wrong manhole. The council did not lay charges against the contractor.

AFFCO was convicted on the charge of contravention of s15(1)(b). Judge Whiting held:

AFFCO was in control of the site and in a position to control the activities of its contractor. To the extent that it could and should have controlled the activity at the point where the pollution occurred, it is responsible for the pollution. The defendant company actively undertook the operations conducted at its Wiri Plant including the responsibility for the collection and disposal of waste material on site. It cannot abdicate its responsibilities simply by employing an agent to undertake that work on its behalf. It was in a position to exercise continued control of that activity and to prevent the pollution from occurring but failed to do so.

A charge had not been laid under s340(1)(a). However, Judge Whiting held that the evidence clearly established the contractor was acting as an agent of AFFCO and therefore s340(1)(a) applied. The Judge considered whether AFFCO could establish a defence under s340(2) and held that it could not:

… the management of AFFCO, on any reasonable objective standard, should have known that the offence was likely to be committed. I am also satisfied on the evidence that in any event AFFCO failed to take reasonable steps to prevent the commission of the offence.

Fugle v Cowie [1998] 1 NZLR 104

The High Court considered the defence of necessity under s341(2)(a).

The Manawatu - Wanganui Regional Council prosecuted Mr Fugle and an employee, Mr Hitchman, for excavation and deposition of material within the bed of a stream in breach of s13(1)(b) and s13(1)(d). The defendants were convicted and fined.

The defendants appealed against the conviction and fine. The appeals were dismissed. The High Court held that the three requirements in s341(2)(a) should not be considered in isolation and that the considerations relevant to each can overlap. The three requirements are:

• The action or event to which the prosecution relates was necessary for the purposes of saving or protecting life or health, or preventing serious damage to property, or avoiding an actual or likely adverse effect on the environment.
• The conduct of the defendant was reasonable in the circumstances.
• The effects of the action or event were adequately mitigated or remedied by the defendant after they occurred.

The High Court held the following:

• In determining whether an action or event is necessary, it is not sufficient if the action or event is merely desirable, useful or even advisable. It has to be a matter of necessity, often construed as reasonable necessity. The test is an objective test and does not depend upon the defendant 's belief.
• Immediacy or urgency has to be proved, and it will generally not be reasonably necessary to carry out work without a prior resource consent when sufficient time is available to obtain one.
• The work necessary in the physical sense has to be such that it does not cause unacceptable damage.
• The standard of reasonable conduct is objective, given the facts then known and using common sense. The danger of hindsight must be avoided.
• There is a further overlap between reasonable conduct and mitigation. Conduct can more readily be regarded as reasonable when immediate adverse effects can be, and have been, remedied. Where damage is irreparable, one should pause long before acting. Where resulting damage can be repaired in whole or in part, it is harder to describe action as reasonable when that damage is left unrepaired.

Auckland Regional Council v Bitumix Ltd [1993] CRN 304809825/93

In Bitumix, concerning a discharge of bitumen and water after failure in a valve at the bitumen works, the defendant relied on the defence in s341(2)(b), claiming that the failure in the valve could not reasonably have been foreseen given that it had been replaced within the last 12 months and that it was hidden behind a door.

This was not accepted by Judge Willy, who regarded the discharge to ground as the offence - not the leak from the valve:

As I have previously indicated that discharge was plain for all to see and continued for some time to the knowledge of at least some of the defendant 's servants, and without anybody taking any steps to mitigate or remedy it … it is the defendant 's obligation, if it wishes to avail itself of the statutory defence to prove on the balance of probabilities that the flowing of the contaminant over its land and into the stormwater system was an action or event which it could not reasonably have foreseen or provided against.

Bay of Plenty Regional Council v Salt [1993] CRN 2070010589

The Bay of Plenty Regional Council prosecuted Mr Salt for discharging oil onto land in circumstances where the oil may have entered water. Counsel for Mr Salt sought leave at the conclusion of the prosecution 's case to advance a defence under s341(2). Judge Bollard refused to grant leave to the defendant because notice had not been given to the prosecutor and:

On balance the prosecution's position would be prejudiced by granting leave, seeing that the prosecution's case had been prepared and presented on the footing that no notice of defence under s341(2) had been given.

The event which the defendant wished to rely on was the unexpectedly heavy and sustained rain; Judge Bollard did not accept the event could not reasonably have been foreseen or provided against.

Auckland City Council v Pendergrast [2002] CRN 1004034048-52

The defendants did not cite evidence in defence of the charges at the hearing in December 2001. Later, in May 2002, the defendants requested a discharge without conviction and wanted to call evidence to support this. The Judge was prepared to allow evidence to be called, but as a matter of fairness to the prosecution this would require an adjournment. The Judge was not prepared to allow submissions to be made which contained disputed facts not supported by the evidence.

Ross McKinnon Smith v Daniel Thomas Spencer Riddiford [1996] CRN5035005704-6

This case involved the prosecution of Mr Riddiford, the defendant, on charges relating to an alleged unlawful excavation on Te Awaiti Station, South Wairarapa, on unknown dates between 1 December 1994 and 1 May 1995. He was charged with using land contrary to s9(1) (as it then was)of the RMA and with permitting the land to be used contrary to the same section. Existing ground contours were altered by way of excavation of more than 1000 cubic metres (being an activity which was not expressly allowed by a resource consent and which was not an existing use).

The defendant stated that he wished to avoid the actual likely adverse effects on the environment on the station of grazing on low-fertility hill soils which should, as appropriate, be retired, afforested or top-dressed and fenced. Cash was required to achieve these objectives (to avoid degradation of steep hill country). Te Awaiti Station comprises some 6,500 hectares, but according to Mr Riddiford only 200 hectares of coastal strip and 800 hectares of river country are really productive. He proposed to generate more income by developing the excavation into a seawater aquaculture pond. By May 1995 the excavation had grown to some 8000 cubic metres. The prosecution was commenced after an interim enforcement order had been made. Eventually land use consent was obtained in November 1995.

The Court was satisfied that the actions of Mr Riddiford were deliberate and that the purpose of the work was to develop an aquaculture business. The question for the Court became whether the defence provided by s341(2)(a)(i) could be established on the balance of probabilities. The three key elements of that defence are:

(1) that the action or event with which the defendant is charged was necessary for the purpose of avoiding an actual or likely adverse effect on the environment:

• The action here was the excavating. The Court accepted the meaning given by Cooke [Environmental Defence Society Inc and Tai Tokerau Māori Council v Mangōnui County Council 13 NZTPA 197] to the term 'necessary ', being "a fairly strong word falling between expedient or desirable on one hand and essential on the other".
• The kind of adverse effect that Mr Riddiford claimed he was seeking to avoid was unlikely to be contemplated by s341(2)(a). However, even if there might be circumstances where it could be so, this case was not one of them. In essence Mr Riddiford had claimed that because of human intervention (pastoral farming), substantial parts of his station had lost its fertility and he could not afford to replace this by topdressing; and this adverse effect on the environment was now necessary to avoid by the creation of an unlawful excavation. This did not give rise to a defence in terms of subclause (a). The adverse effect claimed had been ongoing for some years, and it had been caused by Mr Riddiford 's own farming practices. There was no urgency from a physical point of view requiring its avoidance.
• In relation to 'adverse effects ', counsel for the informant had submitted that the words in s341(2)(a)(i) should be read ejusdem generis with the earlier words in the subclause so that the actual or likely adverse effect on the environment should be given the same importance and urgency as protecting life or health, or preventing serious damage to property." Counsel for the defendant submitted that there is no element of importance or urgency about the words upon which the defendant was relying, and submitted that the Court should contrast those words with the defence provided in subclause (b) where natural disasters, mechanical failures, or sabotage are mentioned. In response the Court stated that "the defences provided for in that subclause involve a lack of control on the part of a defendant, whereas the defences provided for in subclause (a) have nothing to do with a lack of control."

(2) that the conduct of the defendant was reasonable in the circumstances:

• The Court was not convinced on the balance of probabilities that there was good reason for proceeding with the excavation beyond the permitted extent of 1000 cubic metres. Despite the fact that there were some delays, the adverse effect that the defendant was seeking to avoid did not justify taking the law into his own hands, proceeding without waiting for his proposed land use to be properly and publicly scrutinised as the Act requires. In the view of the Court the conduct of the defendant was 'thoroughly unreasonable. '

(3) that the effect of the action or event was adequately mitigated or remedied by the defendant after it occurred:

• The Court found that there was little evidence either way. It did not, however, need to decide the issue as the above two matters meant that the defence failed.

Auckland City Council v B & C Shaw Ltd and George Bernard Shaw [2006] CRN 2004502435, 5003402436

Shaw and his company owned a residential property in Onehunga, bought as a development site for town houses. A significant feature of the site was a large Pōhutukawa tree, scheduled in the district plan for its botanical, visual and amenity values. The tree was about 100 years old, had a crown spread of 14 metres and stood about 10 metres high. In January 2005, after applying for consent but not obtaining it, Mr Shaw engaged associates to fell the tree to make the site easier to sell or develop.

Mr Shaw had convictions on four charges for similar offences at two other properties. Judge Bollard had warned him at the time that any further offences would not be treated lightly.

Shaw initiated a meeting to talk about an apology and reparations. At the defendant 's first appearance, the Court requested that any negotiations be formally facilitated, suggesting that a form of public meeting facilitated by a mediator experienced in RMA matters would be appropriate given the nature of the offending. The outcomes the community wanted were identified.

A second meeting involved the community board, Tree Council, immediate neighbours, and council officers. The purpose of the meeting was to negotiate outcomes in detail. These included: transplanting a new pōhutukawa as large as possible to the site, but also to a position where it could not be blocked out by development; paying for an arborist to maintain the tree for five years; binding subsequent owners to the agreement by way of enforcement order; and Mr Shaw contributing $20,000 to the community board for tree planting in which he would take part.

These matters and the outcomes of the meetings were reported to the Court by the mediator. At sentencing, the Court gave Shaw credit for fronting up as he did, but acknowledged that his apology could be seen as being 'crocodile tears '. The starting point for Shaw in terms of penalty was imprisonment but ultimately, Judge McElrea considered that a sentence that incorporated the community outcomes together with an $80,000 fine was sufficient for the purposes of deterrence and denunciation.

Costs

Auckland Regional Council v Haines House Removals Ltd [2000] CRN 9044013674-5

Haines House Removals pleaded guilty to contravention of subsections 12(1)(c) and (e) of the RMA. Haines had cleared a path across a reef on the foreshore adjacent to a property in Milford, to facilitate the removal of a house by barge for transportation to Northland.

The costs sought by the council included an order of costs above-scale in terms of s13(3) of the Costs in Criminal Cases Act 1967 on the grounds that the case was of special importance because of the severity and calculated nature of the unlawful act.

Environment Judge Whiting accepted that the case was of some importance but not of special importance, and that there was no jurisdiction to make an award greater than the scale allowed in the Costs in Criminal Cases Regulations.

The council also sought costs of approximately $7,000 for staff time under s314(1)(d). Judge Whiting determined, on the basis of the High Court decision in Interclean , that he had no jurisdiction to award costs for expenses incurred by a local authority in respect of its officers engaged in preparing for a prosecution.

Judge Whiting, however, took into account the costs of prosecution in assessing the amount of the fine, and noted that this was the principle that caused Justice Randerson to remit Interclean back to the District Court.

Interclean Industrial Services Ltd v Auckland Regional Council [2000] A198/99

Interclean pleaded guilty to contravention of s15(1)(b) and contravention of an abatement notice.

Environment Judge Treadwell fined Interclean $7,500 for each charge and in addition ordered it to pay solicitors ' costs of $7,500 and analysts ' fees of $5,508.09. The total costs of the solicitor acting for the Auckland Regional Council were $10,861. The evidence of one of the principal witnesses for the council had to be taken before a Court registrar because the witness was about to leave New Zealand on a permanent basis.

Judge Treadwell found that about $3,000 of the legal costs incurred was attributable to the taking of this witness 's evidence but there was no reason why Interclean should pay for the Council's costs for the taking of this evidence. Judge Treadwell ordered Interclean to pay the balance costs of $7,500.

Interclean appealed and sought variation of the sentence to impose an order for scale costs in substitution for the award of $7,500.

In the High Court, Justice Randerson considered whether the legal costs of prosecution can be regarded as a cost or expense incurred in "avoiding, remedying or mitigating adverse effects on the environment" in terms of s314(1)(d). The Council argued that the prosecution could be regarded as part of the overall enforcement regime adopted by the RMA and the prosecution 'avoids ' adverse effects on the environment by its deterrent effect on Interclean, as well as others. The Council also relied on Machinery Movers as authority for the proposition that an innovative approach should be taken to sentencing, not only to punish offenders but also to achieve economic and educative goals; and the Court should ensure that, as far as practicable, the costs of pollution are borne by the polluter and not by the community at large.

Randerson J held that the Court on a prosecution under the RMA does not have the power by the combined operation of s339(5) and s314(1)(d), to order the defendant to pay the legal costs of bringing the prosecution because:

1. the focus of s314(1)(d) is on the recovery of costs and expenses incurred in avoiding, remedying or mitigating adverse effects on the environment where there has been a failure to comply (inter alia) with an abatement notice or other obligations under the Act
2. the purpose of s314(1)(d), as clarified by s314(2), is the recovery of the direct costs of avoiding, remedying or mitigating the adverse effects; as well as the indirect costs of investigation, supervision and monitoring of those effects
3. orders made under s314(1)(d) are intended to be compensatory, and the deterrent effect of the sentence flows principally from the penalties imposed under s339
4. the Costs in Criminal Cases Act 1967 applies to RMA prosecutions.

The Council receives 90% of the fine to help cover the costs of the prosecution.

Randerson J also considered whether the case justified an award of costs beyond the scale prescribed by the Costs in Criminal Cases Regulations and found that it did not. Because there was a clear relationship between the disputed costs and the level of fines imposed, Randerson J remitted the matter to the District Court for determination of the issue as to whether the fines should be increased as a result of the High Court decision.

In the District Court, Judge Treadwell increased the fine by $2,000 on each charge and was not prepared to increase the fines any further, because the case had gone to appeal and had been remitted back.

Auckland Regional Council v Horticultural Processors Ltd and Others [1994] CRN 2090016530

Judge Kenderdine dismissed the charges against three of the four defendants. Mr Smith, a defendant who had had the charges against him dismissed, sought costs. Mr Smith argued that there should be payment of costs in excess of the scale pursuant to s13 of the Costs in Criminal Cases Act 1967 because of the special difficulties, complexity and importance of the case.

Judge Kenderdine found that the prosecution had acted in good faith in bringing the proceedings. However, Judge Kenderdine stated, at page 10:

I have grave concern that he [Mr Smith] is now bearing the costs of a criminal prosecution from a council concerned about the toxic effects of the discharge which they deliberately allowed to continue for at least five days after it was brought to their attention - merely in order to press home the charges to HPL. If the slurry was so dangerous it does not seem reasonable that the council allowed it to be dumped for so long and then proceed to charge Mr Smith with an offence of strict liability."

Judge Kenderdine awarded Mr Smith costs of $4,000 plus GST.

Otago Regional Council v Meadow Fresh Foods (Otago) Ltd [1994] CRN 40120100711-0712

Meadow Fresh Foods operates a milk factory in Dunedin. The Otago Regional Council prosecuted Meadow Fresh Foods for discharge of caustic soda into a stream.

A 200-litre drum of caustic soda solution was delivered to the Meadow Fresh Foods premises by truck. The drum was dropped during unloading and caustic soda was released and began to flow towards an open stormwater drain (which runs alongside an internal road to a mud-trap and to a stream). Meadow Fresh Foods staff collected the spilt material behind an improvised dam. The Fire Service arrived within minutes of having been called and assumed control of the site. The City Council dangerous goods inspector also arrived, and discussions took place between the dangerous goods inspector and the Fire Service about disposal of the spilt material.

The Court held that the actual cause of the discharge was the Fire Service 's act of putting water on the spilt material: this caused the dam that had been containing the material to fail and allowed the material in a diluted form to enter the stormwater drain and then the stream. The charges were dismissed.

The Court held that the disposal of the spilt material, which had been effectively contained by the actions of a company employee, was taken out of his hands. He had been ordered to leave and there was evidence he was not consulted about what should be done. He deferred to the authority of those who assumed control and appeared to know what to do. It was not a case of a passive failure to act.

Meadow Fresh Foods applied for costs against the council. Its total solicitor and client costs and disbursements came to approximately $17,500. The Court ordered the council to pay $14,000 costs.

The Court in awarding costs held that the Council did not take proper steps to investigate: a more thorough investigation would have revealed that those responsible for the discharge were either the New Zealand Fire Service or the Dunedin City Council dangerous goods inspector.

The case highlights the importance of thorough investigation.

Noise

Wilhelmsen v Dunedin City Council [1992] C059/92

The Dunedin City Council issued an abatement notice to Wilhelmsen on the grounds that the noise created from the use of an angle grinder to restore a concrete mixer was unreasonable in a residential area, the noise from a locomotive generator was likely to be objectionable to such an extent that it had an adverse effect on the environment, and the excessive noise from other machinery was not acceptable where it was creating a nuisance to other residents.

The notice required adoption of the best practicable option to ensure that noise did not exceed a reasonable level. The Planning Tribunal allowed the appeal for a number of reasons, including the following:

1. The notice required Wilhelmsen to adopt the best practicable option, but did not specify, the best practicable option. The Court held that it is not sufficient to say that the recipient is to adopt the best practicable option without being more specific.
2. An abatement notice has to set out what the recipient is required to do, not what the recipient may be required to do, or may have to do. The abatement notice stated that " This may require you to relocate …"
3. The notice referred to excessive noise. Excessive noise is provided for in sections 326 to 328 of the Act, and an abatement notice is not the correct enforcement mechanism.

The Court also held that there were no reasonable grounds to issue the notice because the enforcement officer did not make adequate enquiries.

Wilhelmsen applied for costs against the council, and $500 were awarded (Decision on costs C085/92). The Tribunal was not prepared to make a higher award of costs because the council had consented to various waivers and to an amendment to the appeal, which enabled Wilhelmsen to succeed; and in part the abatement notice was justified on the facts that existed at the time it was issued.

Bazley v Police [1998] AP14/98

Bazley and Fowler were convicted in the District Court on charges of assault and resisting constables in the execution of their duty. The police were assaulted while attempting to remove a stereo from a property in accordance with s323 of the RMA.

The appellants appealed to the High Court. The ground of appeal was that the constables were not acting in the execution of their duty.

An enforcement officer of the Invercargill City Council asked the police to respond to a complaint of excessive noise at a party in Bluff. Constable Sutton was asked to handle the complaint. Constable Sutton spoke to a Securitas employee, who faxed to the constable a draft abatement notice. Constable Sutton went to the address at which the party was being held and served a noise abatement notice on Fowler.

Fowler told the constable that the noise would be reduced but if the constable stepped onto the property he would not leave him standing. Constable Sutton returned to his car and waited. The noise increased. He called for assistance. Accompanied by other constables, he served another abatement notice and made it clear that the police wished to remove the stereo.

Fowler and Bazley were very obstructive. The appellants argued that it is incumbent on the enforcement officer to first receive the complaint and then to investigate the complaint. It is only when that has occurred and the enforcement officer has formed the opinion the noise is excessive, that it is open to the enforcement officer to call on the assistance of the police.

The High Court held that:

The reason why the legislation makes provision for the police to be involved is clear enough. Noisy parties which can only be resolved by the removal of a stereo or some other robust action of that sort, are not easy for local government employees to deal with. The authority and perhaps the physical force which the police can bring to bear are obviously seen by the legislator as being, in some cases, desirable.

… a constable who is acting on the request of an enforcement officer may receive a complaint, investigate the complaint, and if of the opinion that the noise is excessive, give a s327(1) direction.

Justice Young in the decision referred to s327. However, according to the facts as recorded in the decision:

1. Constable Sutton received a draft 'abatement notice ' from Securitas
2. Constable Sutton issued two 'abatement notices '.

Invercargill City Council confirmed that the notice issued was an excessive noise direction, not an abatement notice. If the notice issued had been an abatement notice, the relevant section is s322(1)(c) and not ss327 and 328. The police do not have authority to issue an abatement notice. An abatement notice can only be issued by an enforcement officer.

Frost v Police [1996] 2 NZLR 716

There were three appellants: Frost, O 'Riley and Pearce. Frost appealed a conviction of obstruction of a constable acting in the execution of his duty, O 'Riley appealed a conviction of assault of a constable acting in the execution of his duty, and Pearce appealed a conviction of wilful obstruction of a constable acting in the execution of his powers under the Misuse of Drugs Act 1975.

One of the grounds of appeal was that the police were not acting in the execution of their duty, because they were not lawfully exercising powers under ss327 and 328 of the RMA.

The appellants argued that the pre-condition of s328 is that the direction in an 'abatement notice ' must have been immediately ignored before an enforcement officer (with or without a constable) might enter onto a property without further notice under s328(3). The appellants submitted that, as the direction given by the enforcement officer at 10.30 pm was immediately complied with, and there was no "verified evidence of the substance of any subsequent alleged complaint", nor any subsequent 'abatement notice ' served, the police were not exercising powers under the RMA lawfully when they entered the property at 1.30 am the next morning.

Goddard J noted that the appellants ' submission overlooked the fact that the enforcement officer gave evidence of receiving a further complaint.

Manukau City Council v F'eau and Longview Reception Lounge (1980) Ltd [1996] CRN 6048006284-6286

Longview Reception Lounge operates a nightclub in Howick, Auckland. F'eau was the duty manager on the night of the incident. The security firm employed by the council responded to a complaint at the nightclub and found that the noise was excessive.

A written notice was issued to F'eau. F'eau gave evidence that he turned the noise down. The three enforcement officers ' evidence was that the sound was not reduced to a reasonable level.

The Court held that the charges against F'eau were proven because he knew a direction had been given and did not comply immediately. F'eau was convicted and fined $500.

The Court dismissed the charges against the company and held that the company had put into place mechanisms to keep the noise to a reasonable level. The company had told its managers they had to strictly comply with sound-level requirements and with any directions issued by noise enforcement officers or the Police. There was also evidence that in the past the company and its staff had co-operated with the Council in relation to noise emission.

Manukau City Council v Longview Reception Lounge (1980) Ltd and Pairama [1998] CRN 10480044067-068

Longview Reception Lounge and Pairama pleaded guilty at the conclusion of the prosecution case. The facts were that on 13 June 1997 the Council's enforcement officer issued an excessive noise direction to Pairama, Longview 's manager. The notice was to remain effective for 72 hours. In the early hours of the following day the enforcement officer found that the noise emitted from the premises was again excessive.

Each defendant was convicted and fined $1,500 and ordered to pay $750 towards the costs of prosecution. Judge Bollard at page 5 of the decision said:

I trust this case is taken as something of a warning to establishments like this. It is important that noisy activities impacting on surrounding residential environments, in the early hours of morning through the week, are duly penalised as a reminder of the fact that the Act does not contemplate that unduly adverse noise effects will be tolerated by the residential environment. The time has come where people carrying on potentially noisy commercial operations remind themselves of their duties and the need not to be intolerant towards others trying to obtain their sleep at night.

Often excessive noise cases that come before this Court, and before the Environment Court, concern the effects of base drum thumping sounds .

Emergency powers

Gisborne District Council and Minister of Conservation v Falkner and Others [1994] A082/94

This case involved coastal protection works by the council and residents in the area. Works in relation to maintaining or repairing the foredune were, before 1992, undertaken in accordance with the Wainui Foredune Protection Scheme. Works undertaken in 1992 went outside the Scheme as they were not repair or maintenance. They were however, as argued by the ratepayers, undertaken as emergency works.

The works done in the winter of 1992 by the Council were actively undertaken by or on behalf of the "person" having financial responsibility for the public work, and the authority having jurisdiction for the natural and physical resources and area, to mitigate actual or likely effect of the emergency. However, the works done by the residents were to be distinguished as those works were not an "activity undertaken by or on behalf of the person or authority", i.e. the Council.

The Court declared that works done by the residents in the winter of 1992 on Wainui Beach were not authorised under s330 RMA as emergency works.

Auckland City Council v Minister for the Environment and Others [1998] A112/98

Following the decision of the Environment Court in Waiheke Island Country Club Ltd v Auckland City Council (W5/98), Auckland City Council applied for a declaration to clarify the emergency powers in s330.

The initial reason for the application for declaration was because of uncertainties over the interpretation of s330 in relation to disposal of sewage generated on Waiheke Island.

The declaration sought was as follows:

The Council hereby applies for a declaration in respect of section 330 of the Act, headed 'Emergency Powers ' as to the following:

That where a natural or physical resource or area ('the Resource ') is one (over) which a local authority or consent authority ('the Authority ') has jurisdiction is, in the opinion of the Authority, likely to be affected by an adverse effect on the environment which requires immediate or preventative measures, the Authority may take steps to remove or mitigate the cause of the actual or likely affect [sic] of that adverse effect

1. where the adverse effect is threatened or is likely but has not actually occurred; or
2. whether or not the adverse effect could have been reasonably foreseen or predicted by the Authority notwithstanding the provisions of sections 9, 12, 13, 14 and 15 of the Act.

That the word 'emergency ' includes for the purpose of section 330(1)(b), (d), (e) and (2) of the Act an adverse effect on the environment which requires immediate preventative or remedial measures, whether or not the adverse effect is likely but has not actually occurred or could have been reasonably foreseen or predicted by the Authority.

The factors which the Authority must properly take into account in taking steps to prevent, remedy, mitigate or remove the cause of an adverse effect for the purposes of section 330(1)(d) and (e) of the Act or a sudden event causing or likely to cause loss of life, injury or serious damage to property for the purposes of section 330(1)(f) of the Act.

It was agreed at the hearing that the application for declaration was not to be by reference to Waiheke and sewage disposal, and the parties sought a declaration on s330 without reference to any particular factual background or issue.

Paul Cavanagh QC as amicus curiae ( a barrister not engaged in the case who assists a Judge in Court on points of law) presented the counter argument. The Court noted that s330(1) specifies a set of interrelating circumstances. In summary, three areas of judgment can be seen to apply:

1. whether there is a situation under paragraphs (d), (e) or (f) of s330(1):
   4. an adverse effect on the environment which requires immediate preventive measures, or
   5. an adverse effect on the environment which requires immediate remedial measures, or
   6. any sudden event causing or likely to cause loss of life, injury, or serious damage to property—
2. the formation of an opinion of effect or likely effect upon the public work, natural and physical resource or area, or project or work or network utility operation
3. a decision as to the action to be taken; that is, whether to remove the cause of the emergency or to mitigate any actual or likely adverse effect of it.

The judgments of the person / body considering taking action must be objective and that of a reasonable person / body acting in the particular circumstance. The action to be taken must be " immediately necessary and sufficient" for the relevant purpose (immediate response). When s330 is properly invoked, the authority acting in accordance with s330 is entitled to claim immunity from prosecution under s18(2).

The Court considered that a person or body faced with having to take action has to determine what activity should be taken:

- that is, whether to remove the cause of the emergency or to mitigate any actual or likely adverse effect of it. Here again the judgment must be objective and that of a reasonable person or body acting in the particular circumstances. In some cases, removal of the cause of the emergency will be deemed appropriate, whereas in others the mitigation route will be seen as preferable depending on the background. From a general viewpoint, one would expect the chosen course to be one which is anticipated to deal adequately with 'the emergency ' while not seeking to interfere with private law rights to a greater degree than reasonably necessary.

The Court referred to Canterbury Regional Council v Doug Hood (30 June 1998, Judge Skelton, DC Christchurch CRN 7076006424) and said that the case reflects the care that needs to be applied in analysing the factual background to determine whether the offence falls within the ambit of s330. The Court held that local authorities when acting pursuant to s330 must act responsibly within the bounds of the section:

From that analysis it is evident the section cannot be regarded as a general 'fallback ' provision that can automatically be relied on in any perceived 'emergency ' as an effective answer to complaints of unlawful interference with private rights. Because of the section 's specifically defined circumstances of applicability, we agree with Mr Cavanagh 's submission that local authorities and others should not forsake or compromise their responsibilities under the Act 's wider framework of regional and district planning and control on a footing that s330 is "always available if things go wrong". Important though the section is, its terms are such that it cannot be viewed as an ultimate resort for every contingency.

The Court held that if a person / body anticipates that a ' sudden event ' of a certain type could occur at some time in the future, but decides not to put in place measures to cope with the contingency - because of lack of finance, political disagreement or some other reason - this would not negate the ability of that person / body to rely on s330, subject to the three aspects being satisfied.

The example given by the Court is: the fact that a sudden rainstorm event may have been expected to affect an area at some time in the future does not make the event any more or less sudden when it occurs.

The Court held that the fact that a situation or occurrence contemplated by s330(1) may have been foreseen as a possibility does not operate to prevent an ' emergency ' from arising if the qualifying aspects are satisfied.

Waiheke Island Country Club Ltd v Auckland City Council [1998] W05/98

The Waiheke Island Country Club applied for an interim enforcement order against the Auckland City Council, requiring it to immediately cease works associated with depositing septic tank sludge and sewage on land owned by the council. The land was leased to a golf club, which is next door to the Waiheke Island Country Club. The council had been dumping septic tank sludge at two sites, but the resource consents for these sites expired in December 1997.

The council, under s330, undertook earthworks to prepare the site on the golf club land. The Environment Court considered whether the works undertaken by the Council to prepare the site on the golf club land and the intended disposal by the Council of raw sewage on the site could be undertaken under the emergency powers in s330 and s331.

The Court held that because the council had failed to act for several years to address the issue of sewage disposal, it could not then rely on the emergency powers. The Court granted an interim enforcement order requiring the council to halt all works. The Court found:

… it is surprising and indeed alarming that the matter of proper treatment and disposal of sewage on Waiheke Island has been allowed to reach a stage where the council is resorting to emergency measures pursuant to the provisions of the Act.

Chisholm v Auckland City Council [2002] NZRMA 362

This case flows from the Waiheke Island Country Club case. Mr Chisholm brought four causes of action against the council. Mr Chisholm proposed to develop land adjoining the golf course. Part of Mr Chisholm 's case in the High Court was that the Council's actions had caused his proposed investors to withdraw their money from the development. It is interesting to note the Judge 's comments at paragraphs 107-109:

[107]     My clear conclusion on the evidence presented to me is that the council could have relied on s330 to justify sewage disposal on the golf course site. When Mr Hadlow closed his gates, the island 's capacity to accept sewage dropped to 8 [cubic metres] a day. There was a real prospect that the amount of sewage would significantly exceed that figure. If it did, what was to happen to it? It had to be disposed of somewhere. The council was, in my view, obliged to take 'immediate remedial measures ' to ensure that sewage could be disposed of.

[108]     I respectfully agree with the interpretation of s330 adopted by Judges Bollard and Whiting. With respect to Judge Kenderdine, who no doubt had to give a decision under a severe time constraint, I disagree with her analysis, which appears to introduce concepts of fault into the interpretation of s330.

[109]     I should make clear that, in making my finding that the threatened action comes within s330, I am relying on the evidence presented to me. I have not been told what evidence was given to Judge Kenderdine.

Mr Chisholm appealed to the Court of Appeal (Chisholm v Auckland City Council [2002] CA 32/02), but that judgement does not discuss the Judges ' comments about s330.

Canterbury Regional Council v Doug Hood Ltd and Another [1998] CRN 7076006424

The Canterbury Regional Council prosecuted Doug Hood Ltd and Mr Hollingum, an employee of the company, for discharge of contaminants into the Ōpuha River. One of the defences raised by the defendants was immunity from prosecution pursuant to s18 and s330.

The defendants were responsible for the construction of the Ōpuha dam. Due to unusually heavy rainfall, which occurred during construction but after completion of the dam embankment, the defendants became concerned that the embankment was likely to overtop and cause a partial collapse of the dam into the river. The defendants anticipated this would cause considerable damage to the land downstream of the dam.

The defendants arranged for a temporary channel to be cut into the side of the dam to divert water around the dam, in an attempt to relieve pressure and the build-up of water behind the dam. Notwithstanding this, however, the build-up of water was such that the dam overtopped and partially collapsed. The defendants claimed that the action of cutting the temporary channel was taken pursuant to s330 and they relied on the immunity in s18(2).

The council accepted that Ōpuha Dam Ltd, with whom Doug Hood Ltd had entered into a contract to construct the dam, is a network utility operator. The council also accepted that the defendants were acting on behalf of Ōpuha Dam Ltd and any activity undertaken by them to remove the cause of or mitigate any actual or likely adverse effect of an emergency would come within s330(1).

Judge Skelton took a contrary view to Judge Treadwell in the SouthlandRegional Council v Invercargill City Council case (23 December 1996, Judge Treadwell, CRN 6025006200 and 6855) and held that the onus is on the defendant to prove that s330 applies. Judge Skelton held that the discharge for which the defendants were prosecuted did not remove or mitigate any actual or likely adverse effect of the emergency - assuming there was an emergency. On the contrary, it did in fact cause damage, both to the work itself and downstream. Judge Skelton held that the immunity from prosecution in s18(2) and s330 was not available to the defendants. The defendants were convicted.

The defendants appealed against their conviction (19 October 1999, Panckhurst & Chisholm JJ, HC Christchurch AP192/98). The appeal was heard by two High Court judges. One of the grounds of appeal was that the defendants were immune from prosecution under s18(2). The High Court rejected this argument and held that:

We accept that the cutting of the release channel was an 'activity undertaken ' in the face of an emergency situation. But, does the protection, or immunity, provided by s330(1) avail the appellants when they are charged not on the basis of that particular activity? We think not.

The focus of the charge lay elsewhere. The appellants were in control of the construction of an earth dam. By its very nature it could not be safely overtopped in the event of a flood during the course of construction. The possibility of a flood was an ever-present risk. When this flood occurred, no means existed to address that known risk. So viewed, the activity of cutting the release channel was a response to an emergency of the appellant's own making. In our view the protection afforded by s330(1) is not available in such situations.

The High Court expressed a contrary view to Judge Skelton on the onus of proof and indicated that the onus is on the informant to establish that s330 does not apply. The Court stated:

We think it undesirable to express a concluded view since the point does not require determination. However, we note that s341(2) of the Act, …expressly provides defences to certain offences of strict liability (including offences against s15) where "the defendant proves …" the matter available by way of defence. We think it would be strange if within the one Act different sections cast an onus upon a defendant, yet one did so expressly and the other only by implication. In short, the absence of an express reference to a reverse onus in s330(1) suggests to us that the onus of proof remained on the informant.

Southland Regional Council v Invercargill City Council [1996] CRN 6025006200 and 6855

An application was made by the Invercargill City Council to strike out charges laid by the Southland Regional Council on the grounds that the city council acted pursuant to s330 and was immune from prosecution. Judge Treadwell held:

1. that an objective test applies to the word ' opinion ' in s330; namely, whether the situation is one that a reasonable person would consider qualified for emergency action in terms of the section
2. the informant has to prove that s330 does not apply.

Judge Treadwell was not prepared to strike out the charges against the city council but warned the regional council that, if it proceeded with the prosecution and failed, the question of costs would arise. The city council subsequently pleaded guilty to one charge and was convicted, but no fine was imposed (CRN 6025006855).

Enforcing plans

Westmark Investments Ltd v Auckland City Council [1995] HC72/95

The High Court considered s19 in Westmark Investments. The appellant sought a declaration from the Planning Tribunal on a point of law. The Tribunal refused to make the declaration sought and Westmark appealed to the High Court. Westmark was the owner of a building at the corner of Ponsonby Road and Jervois Road in Auckland City.

The appellant proposed to convert the building into shops and apartments. The building exceeded the height limitation in the Auckland City Council Transitional Operative District Plan, being 10 metres. In the Auckland City Proposed Plan the maximum height was 12.5 metres. The appellant wanted to erect a building which exceeded 10 metres but was less than 12.5 metres.

Note: The appellant obtained a resource consent to the building exceeding the height limit in the transitional operative district plan and therefore the appeal was unnecessary, but the parties proceeded because the questions were of public importance.

Justice Barker held:

In broad terms, under the Act, where there is a transitional operative plan and a proposed plan, a development must comply with the requirements of both plans unless there is some resource consent given.

The Tribunal held that a broad, unspecific submission could imperil a specific provision in the plan dealing with height restrictions, even though the submission did not refer either to the specific height restriction or to height restrictions in general.

The High Court did not agree with the Tribunal, and categorised three different types of situations in relation to submissions:

1. a specific submission is made against a specific rule
2. a specific submission seeks general but limited changes throughout the plan
3. a submission seeks broad and general changes to a proposed plan.

If a submission is made which falls into category (c), this submission does not imperil a specific provision where the submitter does not state the change proposed. Therefore, in the Westmark case a submission had been made which was a general complaint about development controls.

The High Court held that this submission could not affect specific provisions such as height restrictions. The High Court held that a situation could occur where a submitter claims:

1. that the whole plan is invalid, or
2. the process should be started again because of a procedural defect.

If such a submission were made with reasonable specificity, the submission could freeze the new plan for the purpose of s19. The High Court commented that, if a serious challenge to a plan is made, the council should seek a declaratory judgment from the High Court or apply to the Environment Court for a declaration.

Enforcing consents

Cooke v Auckland City Council [1997] A63/96

This case concerned a certificate of compliance. The owner had obtained a certificate of compliance for a particular proposal and built a house that was different from the proposal submitted in support of the certificate of compliance. A certificate of compliance is deemed a resource consent pursuant to s139 of the RMA.

The Planning Tribunal found that differences to an original proposal authorised by a (deemed) resource consent are 'material ' having regard to the scheme of the RMA about district plans, if they:

• contravene a rule that would not be contravened by the original proposal
• contravene a rule to an extent greater than the original proposal
• would have greater adverse effects on the environment than the original proposal would have.

The Tribunal found that the varied house was almost entirely within the building envelope of the original house with the exception of a bay window and pergolas. On the basis that the varied house in these respects would not contravene any rule in the district plan, nor any rule for the plan to a greater extent, the Court found that the differences were within the scope of the certificate of compliance.

General duty to avoid adverse affects - s17

Donkin v Board of Trustees of Sunnybrae Normal School [1997] C044/97

The Environment Court made a declaration that an existing school building (authorised by designation) contravened s17 because it was too close to the boundary and was causing objectionable effects upon the Donkin and Newman families, who each owned a property next-door to the school. The Donkins and the Newmans claimed that the school buildings affected their privacy, peace and sunlight.

The Court found that the two classrooms caused substantial adverse effects to the applicants and adjourned the proceedings to allow the parties to file further submissions as to the form of the declaration.

As a result, the Court declared:

… under section 313(a) of the Resource Management Act 1991 that the Board of Trustees of the Sunnybrae Normal School and the Minister of Education

1. have contravened their duty under section 17 of the Act by locating and using the school buildings (two classrooms) adjacent to the Donkin and Newman properties at 7A and 9 Cobblestone Lane, Glenfield;
2. have a duty to remedy or mitigate the adverse effects (loss of sunlight, daylight, and privacy, and an increase in noise) by relocating the building so that the classrooms are at least 10 metres from any residential boundary.

Sayers v Western Bay of Plenty District Council [1992] AO98/92

The Planning Tribunal heard an application by Mr Sayers, the occupier of a property at Waihi Beach, for a declaration as to whether the placing of fill on a neighbouring property by Mr Fowler contravened the RMA or a rule in the operative district scheme of the district council.

Fowler had placed a huge amount of fill on his property, which raised the level by nearly two metres (his object was to provide a more advantageous building platform).

The Tribunal found that the work undertaken by Fowler had caused an adverse effect on the amenity value of the neighbourhood as well as the economic and aesthetic conditions which affect or are affected by those values. There was also an adverse effect on one particular lot by virtue of a clay silt runoff problem.

The Tribunal considered s17, and at page 13 of the decision said:

Although as we have said, the Act embraces a permissive land use approach, applicable unless the particular activity is prevented or controlled in some way, s17 is critical for ensuring that, at the end of the day, particularly in cases where no district plan rule is apt for calling in aid to avoid, remedy or mitigate an adverse effect on the environment caused by an activity carried on by any owner of land, a person is not able to claim that no public law duty is owned to take such rectifying steps as the case may warrant. While the duty is not of itself enforceable by virtue of subsection (2), and while no action has been set in motion pursuant to subsection (3), w e see no reason why we cannot determine and declare whether or not the land owner in this case is under a duty imposed by the section. Section 310, as we construe it, does not limit our ability to make a declaration in the present circumstances.

The Tribunal held that the relevant rule in the district plan was ultra vires or contrary to law, but that if it had not been ultra vires the Tribunal would have declared that the activity concerned contravened the rule. Under s17 of the RMA the Tribunal declared that Fowler was under a duty to remedy or mitigate the adverse effect on the environment arising from the site alteration he was undertaking, and that to discharge that duty he must reduce the level of fill to a specified extent.

The Tribunal declared that Fowler was:

…under a duty to remedy or mitigate the adverse effect on the environment arising from the site alteration activity carried on and intended to be carried on by him, and that in discharge of such duty the existing level of fill on the site requires to be lowered 0.95 [metre], so as to produce an average fill thickness of or about 1 [metre](including the intended 250 [millimetres] layer of topsoil), still maintaining a generally flat platform. The filled area as lowered also requires to be properly retained and landscaped.

Service of documents

Slipper Island Resort v Thames Coromandel District Council and Others [1993] A008/93

The Planning Tribunal in Slipper Island Resort heard an application for re-hearing (under s294 of the RMA) of three appeals struck out by the Tribunal. One of the grounds put forward for the re-hearing was that no notice of hearing had been received or delivered to the appellants. The Tribunal held, at page 8:

… where a notice is attempted to be served under section 352 RM Act by postal delivery, a successful service may only arise if the notice is delivered at the addressee 's house or office or into his or her letterbox or rural delivery box. However, if such a notice was returned to the sender, whether or not the addressee was at fault for the non-delivery, that notice cannot be deemed to have been received by that person under section 352 RM Act at the time at which the letter would have been delivered in the ordinary course of the post.

Acknowledgments

Quality Planning would like to make the following acknowledgments.

Published October 2009.