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Enforcing plans and consents, Existing use rights, Section 17, Costs, Service of documents and Environment Court practice notes

Abstract

This is the final of seven guidance note that form the RMA Enforcement Manual. It, covers a range of short topics that may be encountered while carrying out duties, functions, or powers discussed in preceding guidance notes.

Topics covered by this guidance note include:

Environment Court practice notes can be found in the Environment Court section of the Ministry of Justice website.

Guidance note

Enforcing plans

Old plan, new plan?

The question, "which (of several) planning instruments should prevail?" has been a somewhat vexing one under the RMA. The practical difficulty is that a local authority has both the power and the responsibility to modify its plan from time to time. That exercise involves rights of submission, and appeals. It takes time to complete such an exercise, in its totality. Some matters may have been 'finally ' disposed of before others. But, is the entire 'new ' plan to be on hold until all these intervening matters have been looked to?

In the case of a municipality such as Auckland City, a review could literally take years even if a local authority takes advantage of the power conferred in s73(3) of the RMA to proceed on a 'sectionalised ' basis. For whatever reason, the RMA did not solve all the aspects of this general problem. And so it was that cases began to filter up to the Environment Court in which, in one way or another, that Court had to consider the issue: "old plan, or new plan, or both?"

Hammond J, TV3 Network Services Ltd v Waikato District Council (1997) NZRMA 539 (HC)

The material set out in this section is complex. To assist, each local authority should establish criteria that staff can follow when evaluating consent applications and considering enforcement action, during the period in which two plans apply. See the best practice examples for further information.

Plan definitions

The terms used in relevant court decisions are 'transitional plan ', 'operative plan ' and 'proposed plan '.

The proposed plan will only be 'operative ' when the plan is made operative under clause 20 of Schedule 1 of the RMA. This means it has gone through the full plan preparation process including:

A council is required to publicly notify the fact that the plan has been made operative with the date the plan is to be operative from. For further information refer to the Making Plans Operative guidance note.

If the time for making submissions or lodging appeals has expired, certain activities may be undertaken as if the rules are operative (and any previous rules are inoperative), if those rules have passed the point where they can be challenged through submissions or appeals (s86F of the RMA).

In addition to the s86F ability to treat rules as though they are operative, a number of local authorities have used clause 17(2) in Schedule 1 of the RMA, and applied to the Environment Court to have part of their respective plans made operative. As with s86F, this ability only exists where provisions are beyond challenge through submissions or appeals. This has resulted in 'partially operative ' plans.

Weighting between operative and proposed plans

Weighting in terms of case law applies only to the evaluation of applications for resource consent. They might, however, be used as a guide in prioritising enforcement action. The duty to enforce a plan under s84 only applies to operative plans.

The Planning Tribunal in Hanton v Auckland City Council [1994] A10/94 held the following:

(a) The RMA does not distinguish between the weight to be accorded to an operative plan and to a proposed plan (though this is only an issue where the provisions of the operative plan are inconsistent with the provisions being proposed).

(b)   The requirements of s104 for having regard to various matters are related to the exercise of discretions. Rather than have a general rule about the cases where a proposed plan is to prevail over inconsistent provisions of an operative plan, or vice versa, each case should be decided individually according to its own circumstances. Relevant factors include:

  1. the extent to which the proposed measure has been exposed to independent decision-making
  2. possible injustice
  3. the extent to which a new measure may implement a coherent pattern of objectives and policies in a plan.

The Environment Court 's discretion as to weight was approved by the High Court in TV3 Network Services Ltd v Waikato DC [1998] NZLR 360. The weighting approach expressed in Hanton, and taken by a number of cases, was confirmed by the Court of Appeal in Bayley v Manukau CC [1999] 1 NZLR 56.

While s104 has undergone several amendments since the Hanton decision in 1994 (including new sections 104A-F), it appears that principles espoused in Hanton have not been superseded. A significant amendment introduced in 2009 (by s86B) is that weighting for proposed plan rules would only occur once the proposed plan rule has legal effect which is after decisions have been made on submissions. Prior to the decisions on submissions being made, the proposed plan rules would have no legal effect. Except that, rules in proposed plans have immediate legal effect (ss86B-G) if:

Proposed plans - s86F

Rules in proposed plans do not have legal effect until after decisions have been made on submissions. Section 86F of the RMA provides for a rule to be treated as operative if no submissions or appeals have been lodged, or if all submissions or appeals have been withdrawn or finally determined. Section 86F provides as follows:

A rule in a proposed plan must be treated as operative (and any previous rule as inoperative) if the time for making submissions or lodging appeals on the rule has expired and, in relation to the rule, -

  1. no submissions in opposition have been made or appeals have been lodged; or
  2. all submissions in opposition and appeals have been determined; or
  3. all submissions in opposition have been withdrawn and all appeals withdrawn or dismissed.

Although s19 was replaced by s86F in 2009, the High Court 's comments in Westmark Investments Ltd v Auckland City [1995] HC72/95 are still applicable:

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.

Where a general submission challenges an entire proposed plan, but does not state the change that is required if relief was granted, it cannot be applied to a specific provision. However, if such a submission were made with reasonable specificity, the submission could freeze the new plan for the purpose of s86F. 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

Activities outside scope of consent

If an activity being undertaken is different from the consent that was approved, care should be taken when assessing if the difference constitutes a breach of the RMA. If so, this could make enforcement action appropriate.

The following factors are likely to be relevant:

Each situation is likely to have a different answer and will need to be carefully analysed to determine whether any differences are within the scope of the resource consent.

In Cooke v Auckland City Council [1997] A63/96, the Court considered a situation where a house differed from that for which a certificate of compliance had been sought. The Court 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:

Voiding of consent by non-compliance

The Environment Court has expressed that non-compliance with a resource consent condition may give rise to enforcement action, but this does not necessarily impair the validity of the consent itself (Graham v Dunedin City Council [2001] C81/2001).

The core question that has to be asked is: "Does the non-compliance change the activity consented to?"

In Twisted World v Christchurch CC [2001] C9/2001, the answer to the question was no. The Court acknowledged there was no resulting adverse effect and there was no clear purpose for the condition at all. The change in that case proved immaterial; if there had not been a specific condition, no issue would have arisen.

Existing use rights - ss10, 10A and 20A

Existing use rights are a consideration in a local authority 's duty to enforce a plan: a person who proves an existing use right has the protection given by the proscribed exception in the section of the RMA, that applies to their activity (s9 and ss12-15).

Sections 10, 10A and 20A of the RMA contain relevant provisions relating to existing use rights.

A question arises as to the relationship or differences between an existing use right and a transitional resource consent. The latter is one deemed to have been granted under the RMA, if in force as a permission under previous (specified) legislation immediately before the date of commencement of the RMA (s383 and onwards).

After the commencement of the RMA, the activity approved by the original planning permission (and now deemed consent) may become subject to new requirements under a plan change. If so, it will be subject to those requirements unless it qualifies under s10.

The case law on existing use rights is extensive; it should be referred to in some detail when considering whether such rights exist. This section provides only an outline. Note that when taking enforcement action, a local authority is not required to prove that an existing use right does not exist before proceeding. It is for the person responsible for the activity to satisfy the council, and the Court, on any appeal or defence. However, in practice a council may wish to provide an opportunity - with timeframes - for the person responsible for the activity, to produce relevant evidence after some guidance as to what qualifies (to save itself the costs of a wasted enforcement effort).

The appropriate test to apply when determining whether a use was lawfully established is, on the balance of probabilities. The onus is on the person seeking to establish that a use qualifies as an existing use, to satisfy the Court that the intensity and scale of the activity have not increased (See Waitakere City Council v Gordon [1998 ] A11/98).

Existing use rights for land use - s10

Section 10(1) of the RMA addresses existing use rights for land use. Under this section, land may be used in a manner that contravenes a rule in a district plan or proposed district plan if both:

Section 10 does not apply to activities that have been discontinued for a continuous period of more than 12 months after the rule became operative or the proposed plan was notified.

There are exceptions to when existing use rights on land apply under ss10(3) and (4). These state that s10 does not apply to:

Existing use rights on the surface of lakes and rivers - s10A

Section 10A of the RMA deals with existing use rights for activities on the surface of water in lakes and rivers. Where an activity was lawfully established before the rule in a plan became operative or the rule in the proposed plan was notified, and the activity now requires a resource consent, the activity may continue if both apply:

  1. the effects of the activity are the same or similar in character, intensity and scale
  2. the person carrying on the activity applies for a resource consent within six months of the rule in the plan becoming operative.

Where a resource consent has been applied for (under 2 above), the activity can continue until such time as the consent has been decided and any appeals determined.

Existing use rights in relation to proposed regional plan rules - s20A

Section 20A of the RMA provides that any existing activity that was formerly a permitted activity, or that otherwise could have been lawfully carried out without a resource consent as a result of a rule in a proposed plan, may continue until the plan becomes operative if the factors in ss20A(1)(a) to (c) are present.

Activities that were permitted, or were lawfully carried on without a resource consent, but which become controlled, discretionary or non-complying activities as a result of a rule in a regional plan, may be continued for a limited period in the circumstances defined in s20A(2).
Application for a resource consent must be made within six months of the rule becoming operative. Where a resource consent has been applied for (but no decision yet made), the activity can continue until such time as the consent has been decided and any appeals determined.

General duty to avoid adverse effects - s17

Section 17 of the RMA provides that every person has a duty to avoid, remedy, or mitigate adverse effects on the environment. Section 17 is not enforceable of itself (s17(2)), and local authorities properly rely on plans to give it effect; this provides both certainty and public participation in setting environmental standards. However, not every situation can be covered in plans: the duty applies whether or not the activity is in accordance with a national environmental standard, a rule, a resource consent, a designation, s10, s10A, s10B or s20A.

In Donkin v Board of Trustees of Sunnybrae Normal School [1997] C044/97, the Environment Court made a declaration that an existing school building contravened s17 because it was too close to the boundary of a neighbouring residential property. The Court stated that the Board of Trustees of the Sunnybrae Normal School and the Minister of Education had a duty to remedy or mitigate the adverse effects.

As outlined by the Court in Sayers v Western Bay of Plenty District Council [1992] AO98/92, notwithstanding s17(2), s17(3) provides that an abatement notice or enforcement order may be made or served. Such an order or abatement notice may require a person to cease, or prohibit a person commencing, anything that is or is likely to be: offensive, objectionable, dangerous or noxious enough to have an adverse effect on the environment. Alternatively, the order or abatement notice may require a person to do something that is necessary to avoid, remedy or mitigate adverse effects on the environment caused by, or on behalf of, that person.

Section 17(3), read together with s322, allows enforcement officers to enforce the s17 duty in a limited way. An abatement notice can require that an activity cease if it is having adverse effects and is noxious, dangerous, offensive, or objectionable s322(1)(a)(ii). Specific actions to cure the effects cannot be stipulated, unless a breach of a rule or consent exists. An enforcement order provides a greater scope for action (for more information see the Mandatory Directives Guidance Note).

Costs

Court filing fees and expenses for witnesses

Various court fees apply to enforcement action:

A witness attending the Environment Court under summons by a party or call of the Court is entitled to expenses for travel and maintenance while absent from his or her usual residence under s284 of the RMA. Expenses are determined by scale for civil cases under the District Courts Act 1947.

A witness in a prosecution is entitled to receive witness fees, allowances, and travelling expenses according to the scales prescribed by regulations made under the Summary Proceedings Act 1957. The schedule to the Witnesses and Interpreters Fees Regulations 1974 also provides for fees for expert witnesses and interpreters. Regulation 8 of the Witnesses and Interpreters Fees Regulations provides that a Court may authorise the amounts payable pursuant to the Regulations to be increased where the circumstances are exceptional.

Recovery of costs

Overview

There are three categories of cost recovery by a local authority in RMA enforcement matters, namely costs:

  1. incurred by a local authority in the taking of a prosecution (eg, solicitor fees and witness expenses) and recovered before the District Court
  2. borne in the investigation of an offence and recovered in proceedings before the Environment Court pursuant to its general discretion to order reasonable costs paid
  3. resulting from any direct action taken to remedy effects where there is non-compliance; as well as the indirect costs of investigating and monitoring those effects, recovered by way of an enforcement order under s314(1)(d) - either before the Environment Court or in the District Court upon prosecution under the RMA.

Costs on prosecution

In prosecution proceedings, where a defendant is convicted by a Court of any offence, the District Court may order the defendant to pay such sum as it thinks just and reasonable towards the costs of the prosecution. Costs are defined as "any expenses properly incurred by a party in carrying out a prosecution" and are limited to costs incurred after the decision to prosecute has been made. The costs are ordinarily scaled in accordance with the Costs in Criminal Cases Regulations 1987 unless the court is satisfied that the difficulty, complexity or importance of the case is significantly greater than is ordinarily encountered.

General costs recovered before the Environment Court

The Environment Court has a general discretion to order costs paid by one person to any other person, which it considers reasonable. The principles for awarding costs are as follows:

In Waikato Council and Waikato District Council v Campbell and Others [2003] A198/2003, the councils claimed for in-house officer costs relating to monitoring and enforcement. The respondents contended that such costs were part of the role of salaried officers and would have been incurred regardless. The Court accepted that councils were entitled to recover, under s36, costs of salaried officials regardless of whether their salaries are budgeted for; and that the councils would have been able to recover such costs if the work had been done outside of the councils. The respondents also contested that they should pay the charge-out rates for council staff and that the direct costs (hourly rate) of their salaries would be reasonable. The Court accepted that, in principle, the costs incurred by a council in having an employee carry out duties in avoiding, remedying, or mitigating adverse effects on the environment include proportionate overheads. The overheads, on a case-by-case basis, could be challenged in terms of fairness and reasonableness.

Recovering costs by enforcement order - for avoiding, remedying or mitigating adverse effects

Under s314(1)(d) of the RMA, an enforcement order may be sought from the Environment Court to require a person to reimburse other parties for 'actual and reasonable costs and expenses ' incurred in avoiding, remedying or mitigating adverse effects. The recovery of costs under s314(1)(d) ideals directly with the expense in protecting the environment or indirectly monitoring the effects of an activity.

'Actual and reasonable costs and expenses ' are described in s314(2) as including those associated with investigation, supervision and monitoring of effects, and the costs of actions required to avoid remedy or mitigate adverse effects. Such costs may include:

The Court will not necessarily order payment of all costs that qualify. In setting appropriate awards of costs under s314(1)(d), the Court has regard to the:

Monitoring costs

Costs related to monitoring consents including investigation of breaches can be claimed as charges pursuant to section 36, if an appropriate mechanism has been set in place. For more information, see the guidance on setting charges for processing and monitoring consents under the RMA.

Service of documents

General procedure for service

The procedure for service of documents is set out in s352 of the RMA which states documents may be served by any of the following:

Where a notice or other document is to be served on a Crown organisation it may be served by any of the following:

Where a notice or other document is sent by post to a person it is, in the absence of proof to the contrary, deemed to be received by the person at the time at which the letter would have been delivered in the ordinary course of the post.

If a notice has been posted out but returned to the sender, it may not be deemed to have been served (see Slipper Island Resort v Thames Coromandel District Council and Others [1993] A008/93).

In Wellington City Council v Taylor [1997] CRN 6085018671, a charge against Taylor for not complying with an abatement notice was dismissed, because the notice had been served by post via the Council's internal mail system; the council could not prove that the letter had been sent out the day on which it was dated nor could it prove when the defendant had received the notice.

Service of a document on a Minister of the Crown

Where a notice, or other document, is required is to be served on a Minister of the Crown, then service on the Chief Executive of the appropriate government Department or Ministry is deemed to be service on the Minister.

Service on an organisation

Where a notice or other document is to be served on a body (whether incorporated or not), then service on an officer of the body, or on the registered office of the body, is deemed to be service on the body. If the organisation happens to be a partnership, the notice may be served on any one of the partners, and this is deemed to be service on the partnership as a whole.

Service of documents for prosecution

The laying of the information (charge) is the commencement of criminal proceedings. The procedure for service of a summons is set out in the Summary Proceedings Act 1957.

A 'information ' (charge) and a summons are almost identical: the summons is the copy of the information that is served on the defendant. The summons states the date and time of the hearing. Constables and officers of the Court are authorised to serve a summons, but service by any other person requires authorisation from the Registrar for process servers (s25 of the Summary Proceedings Act).

The method serving a summons on a defendant is set out in s24 of the Summary Proceedings Act:

24. Mode of service of documents on defendant—

(1) Every summons to a defendant and every other document which is required to be served on a defendant shall be served on him in one of the following ways:

  1. By being delivered to him personally or by being brought to his notice if he refuses to accept it; or
  2. By being left for him at his place of residence with a member of his family living with him and appearing to be of or over the age of 18 years; or
  3. By being sent to him by registered letter addressed to him at his last known or usual place of residence or at his place of business; or

  4. Provided that a District Court Judge or Justice or Community Magistrate or the Registrar may if he thinks fit direct that the summons or other document shall be served in accordance with the provisions of paragraph (a) of this subsection.

(1A) Despite subsection (1), if a summons or other document required to be served on a defendant is to be served on a defendant who is a Crown organisation, it may be served -

  1. by delivering it personally to an employee of the organization at its head office or principal place of business; or
  2. by delivering it at the organisation's head office or principal place of business, including by facsimile; or
  3. in accordance with a method agreed between the informant and the organisation.

(2) For the purposes of paragraph (b) of subsection (1) of this section the expression 'member of his family ' means the defendant 's father, mother, wife, husband, de facto partner of the same or different sex, child, brother, sister, half brother, or half sister.

(3) Where service is effected in accordance with paragraph (c) or paragraph (d) of subsection (1) of this section, then, unless the contrary is shown, service shall be deemed to have been effected on the person to whom the letter is addressed at the time when the letter would have been delivered in the ordinary course of post, and in proving service it shall be sufficient to prove that the letter was properly addressed and posted.

Where the master or owner of a ship is a defendant in any prosecution for an offence against s338 for contravention of sections 15A, 15B or 15C, the procedure for service given in s352A must be followed. Section 352A(2) provides that the District Court Judge or Justice or Registrar may direct that the summons be served in accordance with s24 of the Summary Proceedings Act, where he or she is satisfied that it would not be impracticable to do so in the particular circumstances.

Best practice examples

Scenarios

Enforcing plans and consents

Scenario 1: Spray drift and enforcement orders

Council receives a complaint of a spray-drift incident. Staff inspect immediately and collect evidence to establish:

The concentration of pesticide applied exceeds the manufacturer 's instructions and there are significant adverse effects of off-target drift. Plants on neighbouring properties have been damaged. Sea Helicopters informs council that s20A applies, that it has been spraying pesticides for 20 years, and that council cannot take enforcement action because Sea Helicopters is not required to comply with the proposed plan until the plan is operative.

Q1: What can council do?

A1: Council can apply for an interim enforcement order or an enforcement order, or issue an abatement notice requiring Sea Helicopters to comply with the s17 duty.

Q2: In the above scenario, Sea Helicopters sprays pesticide for five months each year. Can council argue that s20A does not apply because the activity has been discontinued for a continuous period of more than six months?

A2: No. The Environment Court has noted that care is required in applying the six-month discontinuity test to seasonal activities like fruit picking: an absence of activity at a time of year when none would normally be carried on anyway, would not be evidence of the use having been discontinued (Wairoa Coolstores (1994) Ltd v Western Bay of Plenty District Council[1998] A16/98).

Scenario 2: Taking of water

The Transitional Regional Plan general authorisation 3 allows up to 15 cubic metres of water per day to be taken for reasonable domestic needs and the needs of animals. The proposed plan rule 3.3.4.8 allows 30 cubic metres per day of groundwater to be taken. Joe Bloggs takes 30 cubic metres of water per day. Mr Bloggs 's neighbour complains that Bloggs is not complying with the general authorisation 3.

Q1: Is Mr Bloggs required to comply with general authorisation 3?

A1: Mr Bloggs is required to comply with the Transitional Regional Plan and the Proposed Plan. The Transitional Regional Plan is the more restrictive, and therefore Mr Bloggs can only take up to 15 cubic metres of water per day without resource consent.

Scenario 3: Water discharges and existing use rights

Transitional Regional Plan general authorisation number 14a provides that the discharge of clean stormwater to the ground is permitted subject to certain conditions. Under the Proposed Plan, discharge of stormwater onto or into land from a quarry is a controlled activity.

Q1: Is a quarry that was operating before notification of the Proposed Plan allowed to continue to discharge stormwater to land without a resource consent?

A1: Section 20A applies if the quarry meets the conditions in s20A(1)(a), (b) and (c), and the quarry can continue to discharge stormwater to land without a resource consent.

Relevant case law

Relevant case law has been referred to throughout this guidance note, with links to fuller summaries when appropriate.

Related guidance notes

Acknowledgments

Quality Planning would like to make the following acknowledgments.

Published October 2009.