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Imposing penalties: Infringement notices and prosecutions

Abstract

This guidance note is the fourth of seven guidance notes that form the RMA Enforcement Manual.

Topics covered in this guidance note relate to infringement notices and prosecutions and include:

Infringement notices

Prosecutions

Guidance note

Context

Penalties are imposed for offences in law. Penalties can be imposed either by way of prosecution under the Summary Proceedings Act 1957 (SPA) or by issuing an infringement notice (s343C of the Resource Management Act 1991 (RMA)). To proceed under the SPA is to proceed 'summarily '. This means that the decision is made by a judge alone, unless the defendant elects to be tried by jury under s66 of the SPA.

The choice between prosecution and infringement is defined in s343B of the RMA:

Where any person is alleged to have committed an infringement offence, that person may either—

  1. Be proceeded against for the alleged offence under the Summary Proceedings Act 1957; or
  2. Be served with an infringement notice as provided for in s343C.

The primary purpose of a penalty is to punish the offender and to deter future offending, not only by the offender, but in the community at large. Further information on the purpose of a penalty is set out under s.7 of the Sentencing Act 2002 (SA). Prosecutions are better suited to deterrence due to the public nature of the proceedings and options available to the sentencing judge.

It is most important to remember that prosecution is not principally a tool to obtain compliance. In this sense, prosecution is not a 'last resort '. Even if the offender complied soon after detection, it might be entirely appropriate to prosecute. The key to a decision to prosecute, is that the offence should have been avoided in the first place, and to leave it unpunished would be contrary to the public confidence in the laws and to their continued effectiveness. Examples include where the offence was grossly negligent or caused serious avoidable harm, was for commercial gain, or was a repeat offence.

In Auckland City Council v North Power Ltd [2004] CRN 3004510188 and CRN 3004510191 4, a case where 70 of 72 charges were withdrawn by the Council, the Court observed that criminal proceedings should not be used a means of achieving civil remedies. The Court also expressed surprise at the absence of a victim impact statement. The Court considered that the difficulty in assessing the losses associated with the case in a sentencing hearing was a 'special circumstance ' which would make imposing a sentence of reparation inappropriate.

Offences

Standard of proof

When deciding to impose penalties, the enforcement officer (in relation to infringement notices) or local authority (in relation to prosecution) must be assured that all elements of the offence can be proven beyond reasonable doubt. This is a standard of proof that stipulates that a charge is not proven if the Court is not satisfied beyond reasonable doubt that the accused committed the offence. For more information on evidence and investigation see the Investigation of Incidents guidance note.

By contrast, defences need only be proven on the balance of probabilities (ie, that the circumstances or situation on which the defence relies 'more likely than not ' existed).

Strict liability

Under s341 of the RMA, the breach of s9 and ss11-15 are strict liability offences. This means that it is not necessary to prove that the defendant 'intended ' to commit the offence.

Breach of an enforcement order or abatement notice, and the obstruction of an officer, are common offences that are not listed under s341. Arguably, this means they require proof of intention to commit the offence. However, in the absence of statutory direction, a court may still find that an offence does not require such proof. This is referred to as 'strict liability of the Mackenzie type ' (after a case of that name, being effectively a third category of liability).

One of the grounds on which a court may make this classification is, that the difficulties of proving intention tend to point towards strict liability.

Proving intention in terms of an enforcement order or abatement notice, would involve showing:

While knowledge may be easy to prove, non-compliance with a notice or order is an omission. Actions are usually a conscious choice, but an omission may be due, for example, to factors beyond a person 's control or to the inaction of a person instructed to comply in the defendant 's absence.

In Waikato Regional Council v Huntley Quarries Ltd [2004] NZRMA 32, the District Court found that the breach of an abatement notice was strict liability of the Mackenzie type. The court said:

If it was sufficient in an abatement notice case for a defendant merely to raise some evidence of lack of intention, and for the informant then to have to prove intention affirmatively beyond reasonable doubt, this would in my view be asking the prosecution to prove matters that are often peculiarly within the province of the defendant, and would be unrealistic. It would also serve to defeat the purpose of the legislation by making abatement notices for offences of omission very difficult to enforce.

In Auckland Regional Council v Biogas [1993] CRN 2048024848/49; [1993], AP 199/93; [1994] CA 526/93; [1994] CRN 2048024848/49, a question arose as to whether the intention to commit the offence of discharging waste to a stream could be imputed because of wording in the offence, despite s341(1) of the RMA. District and High Court conclusions that it had not been proven the person was aware of the contaminants being discharged (a test supposedly required by the wording "allowed to escape" in the s2 definition of discharge) were subsequently overturned in the Court of Appeal.

Multiple charges for the same conduct

One act or omission may, on its facts, constitute a number of offences specified under one or more Acts of Parliament.

For example, the removal of a tree might be one of:

In another example, the failure to maintain or remedy a visually objectionable building might be a breach of either:

Each of these contraventions could result in separate charges.

A local authority is entitled to lay each charge, though dealing with the same act or omission, and a court is entitled to hear each. However, conviction should occur only once in relation to the same act or omission that gave rise to charges being laid (see Auckland City Council v Turner [1995] CRN 5004043089 - 3126 & 3191 - 32280; [1995] M1410/95]).

In relation to infringement offences, the High Court decision suggests that although an infringement notice does not result in conviction, to issue more than one infringement notice would be to penalize the same act or omission multiple times. That may be unreasonable.

If prosecuting, the situation is different because the Court and counsel can agree during proceedings which charges to proceed with. However, care should be taken not to waste the Court 's time or put the defendant to unnecessary cost by laying charges 'just in case '. To avoid claims that the proceedings are oppressive or vexatious, there should be some good reason why the local authority has not chosen its preferred charges at the outset. Examples include the following situations:

Some s338 offences do not match an infringement offence

Prosecution offences are set out in s338 of the RMA, and maximum penalties are stipulated in s339. Infringement offences and fines ('infringement fees ') are set by regulation. Infringement offences are narrower, excluding for example the contravention of enforcement order, a breach of s15C of the RMA relating to dumping of radioactive material or storage of hazardous waste in a coastal marine area, and obstruction of an enforcement officer. The fines are also relatively small. Both facts reflect the purpose of the infringement mechanism, as one designed for minor matters.

The Crown can be served with infringement notices and can be prosecuted by a local authority but as set out in ss 4(7) and 4(8), the court may not sentence a Crown organisation to pay a fine in respect of an offence.

Where an offence has been committed that involves a breach of a resource consent, the Court may, instead of or in addition to the maximum penalties below, make an order that requires a consent authority to review a resource consent under s128(2). As a result of this review, if the authority finds that there are significant adverse effects on the environment resulting from the exercise of the consent the authority, as set out in s132(4), may cancel the consent and can also recover any costs associated with this review from the consent holder.

Offences for which both the infringement offence procedure and prosecution are available, are identified below in italic type. Ones not in italics, are only available for prosecution.

338. Offences against this Act—

(1) Every person commits an offence against this Act who contravenes, or permits a contravention of, any of the following:

  1. Sections 9, 11, 12, 13, 14, and 15 (which impose duties and restrictions in relation to land, subdivision, the coastal marine area, the beds of certain rivers and lakes, water, discharges of contaminants):
  2. Any enforcement order
  3. Any abatement notice other than a notice under section 322(1)(c)
  4. Any water shortage direction under section 329

(1A) Every person commits an offence against this Act who permits a contravention of s15A or 15C (restrictions in relation to waste or other matter)

(1B) Where a harmful substance or contaminant of water is discharged in the coastal marine area in breach of s15B, the following persons each commit an offence:

  1. if the discharge is from a ship, the master and owner of the ship
  2. if the discharge is from an offshore installation, the owner of the installation

 

In the case of a natural person, the maximum penalty for prosecution is two years imprisonment, $300,000 and $10,000 per day for a continuing offence.

In the case of a person other than a natural person the maximum penalty for prosecution is $600,000 and $10,000 per day for a continuing offence.

(2) Every person commits an offence against this Act who contravenes, or permits a contravention of, any of the following:

  1. s22, which relates to failure to provide certain information to an enforcement officer;
  2. s42, which relates to the protection of sensitive information;
  3. any excessive noise direction under s327;
  4. any abatement notice for unreasonable noise under section 322(1)(c);
  5. any order (other than an enforcement order) made by the Environment Court.

A fine not exceeding $10,000, and if the offence is a continuing one, a further fine not exceeding $1,000 every day (or part day) during which the offence continues

(3) Every person commits against this Act who -

  1. wilfully obstructs, hinders, resists, or deceives any person in the execution of any powers conferred on that person by or under this Act:
  2. contravenes, or permits contravention of, any of the following:
    1. s283, which relates to non-attendance or refusal to cooperate with the Environment Court;
    2. any summons or order to give evidence issued or made pursuant to s41
  3. contravenes, or permits a contravention of, any provision (as provided in Schedule 10) specified in an instrument for the creation of an esplanade strip or in an easement for an access strip, or enters a strip which is closed under s237C.

Maximum penalty for prosecution is a fine not exceeding $1,500

Deciding whether to prosecute or issue an infringement notice

Local authorities should consider the scale and nature of the offending involved when deciding whether to prosecute or to issue an infringement notice. Evidence of adverse effects and/or likely adverse effects should be collected and considered carefully. To help achieve consistency of decision-making, local authorities should put in place a policy or protocol on when infringement notices will be issued.

The policy should consider the purposes and principles of sentencing: sentencing is the justice system 's way of determining the appropriate consequences of offending.

The purposes of sentencing generally, are broad. The Sentencing Act allows for a range of orders to rehabilitate offenders and provide restoration to victims. It also allows for consideration of any offers of amends, resulting for example from a restorative justice process.

Specifically in relation to penalties, sentencing has to do with punishment. As well as expressing the community 's denunciation of conduct causing harm, the primary purpose of penalties is deterrence. The costs imposed externally are intended to make offenders specifically and the community generally internalise those costs against any perceived benefit of offending (the likelihood of detection is also a key factor in this equation).

An infringement notice imposes a relatively minor penalty and does not result in a conviction. Hence, it provides less deterrence, and should be reserved for less serious offending. Another reason for limited use is that it reverses the usual onus on the council to prove the offence before a penalty is imposed: the local authority 's evidence comes under scrutiny only after issuing the notice, and if the recipient requests a defended hearing. Repeat offending that results in mounting infringement fees should go before a judge instead.

In Wellington City Council v McCready [1995] DCR 536, Judge Keane described the infringement offence procedure as:

… a process which enables offences of the least relative significance to be processed swiftly, efficiently, and inexpensively. To enable this to happen it abrogates minimum rights, and reverses the usual onuses. But, equally, it transforms the offence into an infringement, and no conviction is ever imposed. The transformation is not complete. The one who commits the infringement faces a liability which can be enforced, like a fine. But the absence of a conviction is a distinction of real, and probably decisive, significance.

The advantages of the infringement notice procedure are that it is swift, efficient and inexpensive unless challenged. However, the penalty able to be imposed is relatively small ($300-$1,000) so may only be suitable as a deterrent or punishment for minor offending.

Prosecution can do a lot more than impose a higher penalty. The Court in sentencing may endeavour, through its statements that accompany conviction, to caution the community or particular groups about their present and future behaviour. Also, under the Sentencing Act the Court can:

Infringement notices

Relevant legislation

The relevant legislation is as follows.

A more detailed discussion of these provisions occurs in the body of this section, below.

The infringement offence procedure is not a new procedure. Local authorities have used the procedure for many years for parking infringements. Infringement notices can be issued under a number of statutes including the:

Infringement offences and fines

Section 343A of the RMA defines 'infringement fee ' as the amount fixed by the Regulations, and 'infringement offence ' as an offence specified as such in the Regulations.

The words 'defendant ', 'informant ', 'infringement fee ', 'infringement notice ' and 'infringement offence ' are defined in s2 of the Summary Proceedings Act.

Schedule 1 of the Resource Management (Infringement Offences) Regulations 1999 sets out the sections of the RMA that, when contravened, give rise to an infringement offence, and the infringement fee for the offence (summarised below). Section 343D of the RMA provides that a local authority shall be entitled to retain all infringement fees received for notices issued by its enforcement officers.

Offence specified as infringement offence General description of offence Infringement fee for offence
Section 338(1)(a) Contravention of section 9 (restrictions on use of land). $300
  Contravention of section 12 (restrictions on use of coastal marine area). $500
  Contravention of section 13 (restriction on certain uses of beds of lakes and rivers). $500
  Contravention of section 14 (restrictions relating to water). $500
  Contravention of section 15(1)(a) and (b) (discharge of contaminants or water into water or onto or into land where contaminant is likely to enter water). $750
  Contravention of section 15(1)(c) and (d) (discharge of contaminants into environment from industrial or trade premises). $1,000
  Contravention of section 15(2) (discharge of contaminant into air or onto or into land). $300
Section 338(1)(c) Contravention of an abatement notice (other than a notice under section 322(1)(c)). $750
Section 338(1)(d) Contravention of a water shortage direction under section 329. $500
Section 338(1A) Contravention of section 15A(1)(a) (dumping of waste or other matter from any ship, aircraft, or offshore installation). $500
Section 338(1B) Contravention of section 15B(1) and (2) (discharge in the coastal marine area of harmful substances contaminants, or water from a ship or offshore installation). $500
Section 338(2)(a) Contravention of section 22 (failure to provide certain information to an enforcement officer). $300
Section 338(2)(c) Contravention of an excessive noise direction under section 327. $500
Section 338(2)(d) Contravention of an abatement notice for unreasonable noise under section 322(1)(c). $750

 

Steps in the infringement notice process

Steps in the lead-up to issuing an infringement notice

1: Receipt of information or observation of activity by officer

Instigation of action in the lead-up to issuing an infringement notice or considering prosecution will normally begin when an enforcing officer directly observes an activity, or someone undertaking an activity, that constitutes an offence; or receives information that gives the enforcing officer reasonable cause to suspect an offence may be, or is about to be, committed. The information received may be in the form of (for example):

2: Investigate and collect information

Upon making an observation or receiving information that gives the enforcement officer cause to believe an offence may be committed, the officer will then need to collect information (evidence) to test whether an offence is being committed. If not already on-site, the enforcement officer may need to visit the site. In obtaining the information the enforcement officer should consider:

3: Forming an opinion on the evidence and information collected

In order to issue an infringement notice, an enforcement officer is required to have either observed the person committing the offence, or have information or evidence that gives reason to believe an offence has been committed (s343C of the RMA).

Where an enforcement officer has not observed the offence being committed, and the defendant has not admitted liability, the enforcement officer will need to consider carefully as to whether the information received or collected:

Where the information is insufficient, consideration could be given to non-regulatory action such as educating the suspected party about the effects of the activity.

The enforcement officer should also consider whether, given the information available at the time, an infringement notice is the most appropriate course of action. In cases where the effects of the offence are serious and a strong deterrent message is required, prosecution may be more appropriate and effective. In considering prosecution, the enforcement officer will need to consider whether the type and robustness of evidence collected would be sufficient to prove a case before a judge or jury (eg, would it prove all the elements of the offence beyond reasonable doubt?).

The steps in the lead-up to issuing an infringement notice are set out in the diagram below.

 

The steps for issuing of infringement notice

Steps in issuing an infringement notice

1: Choice of proceedings: s343B

Section 343B of the RMA provides that an infringement offence can be proceeded against by way of an infringement or by laying a charge under the Summary Proceedings Act (ie, the usual route of prosecution, relying on the s338 offences which encompass all infringement offences and more).

2: Service of notice

Section 343C(2) provides for service of infringement notices. Any enforcement officer (but not necessarily the officer who issued the notice) may deliver the infringement notice or a copy of it to the person alleged to have committed an infringement offence. Delivery may be in person or by post addressed to that person 's last known place of residence or business. In the case of postal delivery, for the purposes of the SPA, the notice or copy shall be deemed to have been served on that person when it was posted.

3: Process after service of notice

Section 343C(4) of the RMA provides that where a notice has been issued, proceedings may be began in the District Court in accordance with s21 of the SPA (with all necessary modifications).

Section 21 of the SPA specifies the various options for initiating infringement offence proceedings. It also sets out the steps that may be taken after an infringement notice has been issued, by an informant or by the person served with a notice.

The recipient may raise 'circumstances '

A person receiving an infringement notice may raise "any matter relating to circumstances" of the offence, by writing to the local authority within 28 days of the date on which the infringement notice was served or delivered to the person (Resource Management (Infringement Offences) Regulations 1999, Schedule 2, summary of rights, clause 2).

If the local authority accepts the circumstances that are raised as grounds not to pursue the infringement fee, it can choose to take no further action. This scenario is the most common that local authorities deal with. If the local authority does not accept the circumstances, it will continue with the infringement process by issuing a reminder notice.

When a local authority chooses to take no further action in the infringements process, it has no statutory obligation to notify the defendant of its decision. However, most local authorities do send a letter as a matter of courtesy and good practice.

Issue of a reminder notice

If the recipient does not pay the infringement fee and does not request a hearing within 28 days of the date of service of the infringement notice, the local authority can issue a reminder notice.

The form prescribed for the reminder notice is Form 10 in the First Schedule of the Summary Proceedings Regulations 1958. Section 21(2) of the Summary Proceedings Act requires that the reminder notice contain the same or substantially the same particulars as the infringement notice. If the reminder notice is materially different to the infringement notice, the local authority runs the risk of the infringement proceedings failing.

Once a reminder notice has been issued, the person receiving the notice has 28 days after the date of issue of the reminder notice to pay the infringement fee.

Payment of infringement fee by instalments

Section 21(3A) of the SPA provides that an arrangement can be made to pay by instalments if:

The local authority may, but is not required to, enter into an arrangement allowing the defendant to pay by instalments. The arrangement must be entered into within six months after the date of the offence and be completed within 12 months after the date of the offence.

If the defendant defaults in payment of any instalments, the local authority can enter into another arrangement for payment by instalments or serve a reminder notice on the defendant (note: the reminder notice should include a record of the amount of infringement fee unpaid). If a reminder notice is issued, the defendant does not have the option of requesting a hearing.

Lodgment with the District Court

The defendant has 28 days from the date of service of the reminder notice to pay the infringement fee or request a hearing. If the defendant fails to either pay the fee or request a hearing, the local authority has two options:

Where the local authority has allowed the defendant to pay the infringement fee by instalments and the defendant has defaulted in payment, the copy reminder notice / infringement notice can be filed within 12 months of the date of the offence.

The reminder notice can be filed at the Court that is closest to the prosecuting authority, although not required by the SPA. The advantage is that local authorities mostly deal with one Court. A defendant can apply for a transfer of the proceedings to the Court that is closest to the defendant; therefore it may be useful to discuss the venue with the defendant if the defendant denies liability and requests a hearing.

If the local authority files a copy of the reminder notice / infringement notice in Court, under s21(5) of the SPA an order is then deemed to have been made that the defendant pay a fine equal to the infringement fee for the offence and costs of the prescribed amount (currently $30).

The defendant cannot file an appeal or apply for a rehearing because there is no actual judicial decision.

The status of infringement notices generally, when comparing prosecutions and other determinations, was clarified in Davies v Ministry of Transport [1989] 3 NZLR 300: the Court of Appeal, in considering the process for issuing an infringement notice for minor traffic offences, noted "nothing in that process can be characterised as a determination of an information by the District Court".

Where the receiver of an infringement notice does not request a hearing within 28 days then further options to challenge the notice through the High Court cease to exist. As noted in Van Kan v Auckland City Council [1992] AP98/92 there "has to be a determination of a District Court before the right of a appeal arises; infringement notices not the subject of requests for hearings cannot give rise to an appeal".

The steps in issuing an infringement notice are set out in the diagram below.

The steps in issuing an infringement notice

 

Form and content of a infringement notice

Section 343C(3) of the RMA provides that the notice shall be in the prescribed form (Schedule 2 of the Resource Management (Infringement Offences)Regulations 1999) and shall include:

  1. such details of the alleged infringement offence as are sufficient fairly to inform a person of the time, place, and nature of the alleged offence. An example follows:

    Section of Resource Management Act 1991 contravened:
    Section 15(1)(b), being an offence against section 338(1A) of the Resource Management Act 1991.

    Nature of infringement:
    You discharged a contaminant, namely cowshed effluent, onto land, in circumstances which may have resulted in that contaminant (or any other contaminant emanating as a result of natural processes from that contaminant) entering water, namely a tributary of the Waitekauri Stream, when the discharge was not expressly allowed by a rule in a regional plan and in any relevant proposed regional plan, a resource consent, or regulations.

    Location:
    The infringement occurred on land in Lot 34 DP568910, approximately 100 metres at its nearest point to the Waitekauri stream.

    Date and time:
    Between the hours of 5 am and 10 am (approx) on Saturday 5 November 2002.
  2. the amount of the infringement fee specified for that offence
  3. the address of the place at which the infringement fee may be paid
  4. the time within which the infringement fee must be paid
  5. a summary of the provisions of s21(10) of the SPA (providing a defence on proof of payment within time at the address stated on the notice)
  6. a statement that the person served with the notice has a right to request a hearing
  7. a statement of what will happen if the person served with the notice neither pays the infringement fee nor requests a hearing
  8. such other particulars as are prescribed. The form in Schedule 2 of the Regulations requires:
    • full name and address of the person contravening the RMA
    • name of the enforcement authority
    • identification number of the enforcement officer or failing that, his or her name

      Note: It is not necessary for local authority enforcement officers to have identification numbers. The infringement notice form is based on the form used for infringement notices under other legislation, including the Transport Act, under which territorial authorities issue parking tickets. For obvious reasons parking wardens will wish to remain anonymous.

    • signature of the enforcement officer who completes the notice.

Correction of errors

Correction of irregularities in procedure - section 78B of the Summary Proceedings Act

Section 78B of the SPA provides that if the defendant did not receive the reminder notice or a copy of the notice of hearing, or if some other irregularity occurred in the procedures leading up to the order for the fine or costs, the Court can, on the application of the defendant:

The ability to correct irregularities in the process of issuing an abatement notice through s78B of the SPA was confirmed in Van Kan v Auckland City Council [1992] AP98/92. The Court noted that such a correction "does not require a rehearing unless the defendant did not receive a copy of the reminder notice or a copy of the notice of hearing".

Correction of errors in notices - ss204 and 43 of the Summary Proceedings Act

The notice of hearing filed in Court is to be treated as an 'information ' (charge), and a copy of the notice served on the defendant is to be treated as a summons to the defendant (s21(8) of the SPA).

If there is an error in the infringement notice, the reminder notice and/or the notice of hearing, the notices are invalid only if there has been a miscarriage of justice (s204 of the SPA). This position was stated in Hall v Ministry of Transport [1991] 2 NZLR 53 (CA) where an error in an infringement notice excluded a mention that Hall had the right to dispose of the matter until 28 days after being served with a reminder notice. Further confirmation is provided in Greenfield v Police [1999] AP216/98.

If there is an error in the notice of hearing, the local authority at the hearing can seek an amendment under s43 of the SPA, and the Court has power to make an amendment, including by substituting one offence for another. If the latter occurs, the defendant is given an opportunity to re-plead, and also to elect trial by jury (if s66 of the SPA applies). The Court may also adjourn the case, if it is of the opinion the defendant would be "embarrassed in this defence by reason of an amendment".

Defending an infringement notice

Request for a court hearing

Section 21(6) of the Summary Proceedings Act provides that the defendant can request a Court hearing before or within 28 days after service of a reminder notice. The request must be in writing, signed by the defendant and delivered to the local authority at the address specified in the infringement notice.

The local authority may allow the defendant extra time to request a hearing.

The defendant can either admit liability or not admit liability (s 21(7) of the SPA).

Local authority response to request for hearing

If it receives a request for a defended hearing, the local authority may:

When a request for a hearing is not clear

The defendant may not make it clear that he or she requests a hearing. The Department for Courts Operational Circular (CRM/00/13 2000/12) notes that:

We have been advised by the Police Infringement Bureau (PIB) and the New Zealand Association of Parking Enforcement Authorities (NZAPEA) that they are taking a far more lenient approach when they receive correspondence. If a person implies they wish to 'defend ' the infringement offence in a letter, then the Prosecuting Authority sets it down for hearing.

In these cases, a local authority should ask the defendant to clarify whether a hearing is being requested.

Admission of liability

The defendant has the option of requesting a hearing despite admitting liability. However, the procedure is then more limited than if there were no admission of liability. If the local authority responds by filing a notice of hearing, the defendant is entitled to make only written submissions, considered by a judge or justices of the peace in chambers, on the appropriate penalty or other matters they wish the Court to consider.

The local authority should not serve a copy of the notice of hearing on the defendant, as this would usually invoke a hearing in open court, contrary to the stated procedure (a situation that occurred in Adam v Wellington City Council [1998] AP18/98 where the Court considered that serving Adam with a hearing notice had created an alternative procedure in an open court hearing that was "confusing and unlawful, and it should not have been done").

Defences

If the defendant does not admit liability, in most cases the defendant will raise a defence. Defences are set out in clause 8 of the summary of rights in Schedule 2 of the. The defences are identical to those in s341 and s340(2) of the RMA.

The local authority should carefully consider any defence raised before commencing proceedings by filing a notice of hearing in court (and a copy on the defendant).

Standard of proof

The local authority is required to prove the infringement offence to the standard 'beyond reasonable doubt '(see Wood v Police [1998] AP1/98).

If the defendant does not appear in Court on the allocated hearing date, the local authority should call evidence to prove the offence.

Presumptions

A local authority is not obliged to prove the validity of the infringement notice, service of the infringement notice, reminder notice or notice of hearing, or that the infringement fee has not been paid.

Section 21(12) of the Summary Proceedings Act provides:
In any proceedings for an infringement offence for which an infringement notice has been issued it shall be presumed, unless the contrary is proved, that—

  1. The infringement notice in respect of the offence has been duly issued, and the notice, or a copy of the notice, has been served on the defendant:
  2. Any reminder notice or copy of a notice of hearing required to have been served on the defendant has been duly served:
  1. The infringement fee for the offence has not been paid as required under this section.

It is open to the defendant to prove, on the balance of probabilities, that one or more of the steps in s21(12) of the SPA were not properly taken. The discretion of the Court to correct errors under sections 78B, 204, and 43 will apply in some situations (see correction of errors).

Costs - defendant / local authority

Section 21(9) of the Summary Proceedings Act and regulation 15C of the Summary Proceedings Regulations 1958 stipulate that the Court must order the defendant to pay a prescribed fee, which is currently set at $30, if the defendant either:

  1. admits liability and the local authority requests a hearing
  2. does not admit liability and requests a hearing, and the Court finds the defendant guilty.

If the Court finds the defendant not guilty, the Court can order the local authority to pay costs. Section 21(8) of the SPA provides that if the notice of hearing is filed within six months of the date of the offence, the Costs in Criminal Cases Act applies. Costs can also be awarded to the defendant when the authority that issued the infringement notice withdraws charges (as occurred in Police v Ellis [1997] CRN 6085009178).

Infringement notices: decision as to penalty

Section 78A of the SPA provides that a conviction is not imposed for an infringement offence. In Wood v Police [1998] AP1/98, the High Court quashed the record of conviction and held that s78A of the SPA applies and requires that a conviction not be recorded. The Court also quashed the order that the appellant attend a defensive driving course because the only penalty that can be imposed for an infringement offence is a fine and costs.

If a Court is required to make a determination (ie, on request of a hearing), and finds the defendant guilty, the Court may impose a fine and will impose costs of the prescribed amount (currently $30). The Court can also order the defendant to pay further costs.

Based on case law from non-RMA sources, it appears the Court has a discretion to impose a fine of a lesser amount than the prescribed fee. Section 21 of the SPA allows submissions to be made on the penalty. The leading decisions on whether infringement fees are mandatory fines (Interfreight Ltd v Police [1997] 3 NZLR 688 (CA) and Osment v Police [1998] AP65/98),can be distinguished from RMA cases because the reminder notice in the Summary Proceedings Amendment Regulations 1999, Form 10, does not include a note relating to RMA offences which is similar to the note on overloading offences.

In Interfreight v Police, the Court held that the specific provision in s69B(2)(b) of the SPA overrides the general provision in s21. As such, 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 significance of the offence was not to the degree alleged. In Osment v Police, the High Court held infringement fees were not mandatory as (amongst other matters) the question of penalty is open to submission.

Recovery of fine and costs

The Court registrar will send notice of the fine to the defendant. The defendant has 28 days after the date the fine is imposed to pay it (s80 of the SPA). The Court can allow further time for payment and payment by instalments.

If:

the Court registrar will send the defendant a further notice of the fine. This will inform the defendant that, if the fine is not paid within 28 days after the date on which it was imposed, and no arrangement has been entered into for an extension of time or for payment by instalments, enforcement action may be begun.

If the defendant does not pay the fine, the registrar may issue a warrant to seize property, or make an attachment order attaching any salary or wages payable or to become payable to the defendant, or issue a deduction notice requiring a bank to deduct the amount due from a sum payable or to become payable to the defendant (s87 of the SPA).

Prosecutions

Principal purposes of prosecution

The two principal purposes of prosecution are to punish the offender and to deter potential offenders.

Deterrence is the attempt to restrain persons from offending by the threat, or actual imposition, of punishment. The principle has a twofold aspect: it may both specifically deter the offender before the Court from re-offending (specific [special] deterrence); and generally deter other persons who may be minded to offend in a similar way (general deterrence) … The essential distinction between the two is that the former relies on memory, the latter on imagination!

Hall 's Sentencing (Lexis Nexis loose-leaf edition), I.3.3 page 210

The Sentencing Act includes deterrence and punishment as two of its principles.

Standard of proof

Before prosecution can be considered as an option, the chances of success must be considered. The standard of proof is the criminal standard which is 'beyond reasonable doubt '.

Whether a defence is available under s340 and/or s341 should be considered. In criminal cases the burden of proof is on the prosecution to prove every essential ingredient of the offence. The defendant is deemed innocent until proven guilty. The standard of proof which is required of the defendant to establish the statutory defences provided in s340 and s341 is 'on the balance of probabilities '.

Continuing offence

Section 339(6) provides that the continued existence of anything, or the intermittent repetition of any actions, contrary to the RMA shall be deemed to be a continuing offence.

Auckland Regional Council v Westgate Properties and Others [2000] T300600 demonstrates the application of penalties to a continuing offence. In that case the Court fined the defendants $100 dollars per day for each day they contravened several abatement notices (periods of between 25 and 159 days for differing notices). Prosecution costs of $16,000 were then added to the total sum.

Laying an 'information ' (charge)

Filing in court
Laying the 'information ' by filing it with the Court is the commencement of criminal proceedings.

The 'information ' must be filed in the District Court nearest to the place where the offence was alleged to have been committed, or where the informant believes the defendant may be found (s18 of the SPA).

Subsection (4) of s338 of the RMA provides that an 'information ' may be laid up to six months from the time when the contravention first became known, or should have become known, to the local authority. Where the offence charged is a continuing offence, time runs from each and every day the offence continues (see Northland Regional Council v Lowe Walker Dargaville Ltd [1997] CRN 7011003566 and 7011003684). This case was cited with approval and followed in R. v Gordon [2003] T024528).

Particulars of an 'information ' (charge)

Except where otherwise provided in the RMA, every 'information ' must be for one offence only. It must contain sufficient detail so as to fairly inform the defendant of the substance of the offence for which the defendant is charged (s17 of the SPA).

Where the exact date of the offence is not known, the date should be stated as being on or about a particular date, or on a day unknown between two stated dates, in order to isolate the date of the offence alleged as accurately as possible (Archbold, Criminal Pleading Evidence & Practice (edition 1995), 1/69).

If there is doubt about the particulars of the charge, the local authority should consider whether these might be excluded from the wording or stated in the alternative. For example, a local authority 's primary theory might be that the defendant company was acting through a particular agent in the committing of an offence. If the local authority states these particulars, it will have to prove the link beyond reasonable doubt. If a person other than a natural person is convicted of an offence against this Act , it may not be necessary to rely on the agency to show liability (through s340 of the RMA) - rather on the fact that a director of the defendant or a person involved in the management of the defendant authorised and knew of the offending and failed to take all reasonable steps to prevent or stop the contravention (s338 of the RMA).

In Auckland Regional Council v Horticultural Processors Ltd [1993] CRN 2090016530 a charge was dismissed on the basis that the wording had not established a key link between a cartage contractor and the company responsible for the offence. The judge noted that the difficulty in the wording was apparent and could have been amended.

Section 162 of the SPA provides that an 'information ' (charge) may be amended. However, s162(3) provides that the Court may, at the defendant 's request, grant an adjournment if the amendment disadvantages the defendant.

Enforcement officers should consider two more points:

Right to select trial by jury

Section 66 of the SPA provides that, for offences which are punishable by imprisonment for a term exceeding three months, the defendant has the right to elect trial by jury. Because the maximum term of imprisonment under the RMA is two years, a defendant has this right.

Prosecution: defences

Overview

In prosecution cases the role of the defendant 's legal counsel will, generally be to:

In Waikato Regional Council v Huntly Quarries Ltd [2004] NZRMA 32, the council had omitted to include the reasons in an abatement notice. The Court held on prosecution that the defect was a basic one, affecting the defendant 's ability to decide whether to appeal, and no prosecution could properly be based upon such a notice.

More specifically, the RMA provides defences for particular situations, including defences to the strict liability offences provided by s341(1), defences for 'principals ' (those who appointed others who carried out or permitted the contravening act), and defences for the managers and directors of companies convicted of an offence. This includes directors and managers of Crown organisations and unincorporated groups. It is open to the defendant to prove a defence on the balance of probabilities, and thus escape the relevant charges.

A further defence is found under common law in strict liability cases, being the defence of total absence of fault. In Auckland City Council v Selwyn Mews Ltd [2003], CRN 2004 067301-19 the Court considered the test from Millar v Ministry of Transport [1986] 1 NZLR 660as quotedin Tell v Maritime Safety Authority [2002] CA 230/02, and stated at paragraph 100:

…there must be a presumption in favour of 'total absence of fault ' defence, rather than absolute liability. To impose absolute liability would need clear statutory language, and that is just not present here.

On the facts of the case the defendants did not make out a defence of total absence of fault for contravening the enforcement order.

Defences for principals of offenders - s340(2)

In terms of s340, a principal is a person, either a natural person or a person other than a natural person, who appoints another who commits an offence while acting in the capacity as their agent or employee.

Section 340 provides that a principal is liable for the acts of its employees and agents (including any contractor). If charges are laid against the principal, a defence is available under s340(2) if it is proved that the principal:

The Courts have been careful to prevent principals 'passing the buck '. Culpable knowledge has been found to include situations where the principal was aware that the offending act was likely to arise if something they had control of through their agents did not occur, and had not taken adequate precautions to ensure the agents performed accordingly.

In Northland Regional Council v Tranz Rail Ltd [1996],Tranz Rail had relied on defence that a contractor was transporting the material that was discharged; and that it could not be proved beyond reasonable doubt that reasonable steps had not been taken to prevent a spillage. The Court found Tranz Rail guilty on the grounds that, given the Council had informed Tranz Rail over concerns in regard to their operations, Tranz Rail was aware of the need to guard against spillage, but had not taken adequate steps (within its control) to prevent it happening.

In Auckland Regional Council v AFFCO Allied Products[2000] CRN 9048006616-9 AFFCO pleaded not guilty to a discharge of trade waste because the discharge was caused by a contractor. However the Court convicted AFFCO on the basis that they were in a position to control the contractor, and should have controlled the contractor (but didn 't) so could not abdicate its responsibilities.

In Canterbury Regional Council v Newman [2002], the defence of taking all reasonable steps (s340(2)) was relied on. The Court held that:

Defences for managers and directors of convicted companies

To obtain a conviction against a director of the defendant or a person involved in the management of the defendant of a person other than a natural person convicted of an offence, s340(3) provides that the local authority must prove both points:

There is one common situation that in practice means a director of the defendant or a person involved in the management of the defendant might be convicted without proof of the requirements under section 340(3). Particularly in smaller companies, a director of the defendant or a person involved in the management of the defendant might be in direct (and/or sole) control of activities giving rise to the offence on site. If this is the case, that person can be charged with permitting a contravention in terms of s338, and the local authority therefore does not need to charge that person as a principal under s340.

In R. v Lorenzen [2003] T031951, the sole director of a company was convicted of clearing vegetation without a resource consent despite not being the contractor who actually carried out the work (who could not be found). The Court held:

Strict liability defences - s341

Section 341(1) provides that various offences are strict liability offences (such that no motive needs to be proven).

The defence of due diligence (reasonable care) is available for a strict liability offence in common law. The defences in s341(2) are a codification of that common law defence.

Section 341(2)(a)

In summary, s341(2)(a) provides a defence to the strict liability offences in s341(1) in certain emergency situations, provided the conduct was:

Similar provisions exist in ss341A and 341B of the RMA in relation to discharges contrary to sections 15A and 15B.

The Court has said that the three requirements of s341(2)(a) should not be considered in isolation, as they overlap.

In s341(2)(a), 'necessary ' has been interpreted as having to be more than desirable: urgency has to be proved. In Smith v Riddiford [1996] it was taken to be a "fairly strong word falling between expedient or desirable on one hand and essential on the other".

In Fugle v Cowie [1998] 1 NZLRit was said that 'reasonableness 'must be determined objectively, given the facts known then and using common sense. Hindsight must be avoided.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.

In Smith v Riddiford [1996] CRN5035005704-6, Riddiford unsuccessfully relied on a s341(2)(a) defence in respect to large-scale earthworks. One of the arguments for the defence was based around the relationship between s341(2)(a)(i) and s341(2)(b). The Court stated that the two should not be read as though they were of a similar nature. Whereas s341(2)(b) indicated matters that were beyond the control of the defendant, the instances in s342(2)(a) "have nothing to do with a lack of control".

Section 341(2)(b)

Section 341(2)(b) provides a defence where the action or event was beyond the control of the defendant (such as through natural disaster, or sabotage), could not have been reasonably foreseen, and were adequate mitigated of remedied by the defendant after the offence occurred.

In Auckland Regional Council v Bitumix Ltd [1993] CRN 3048098, the Court did not consider a discharge could not have been reasonably foreseen, given the valve in question "was plain for all to see" and the discharge had continued for some time, to the knowledge of at least the defendant 's employees.

In Bay of Plenty Regional Council v D 'Ath [1995] CRN 4087005973 sabotage was successfully used as a defence. It was held that the defendant had taken reasonable steps to avoid a discharge.

Defendant must give notice of defences - s341

If a defendant intends to rely on one of the defences in s341(2), the defendant must give written notice to the prosecutor, specifying the facts that support the defence, within seven days of service of summons. If the defendant fails to give notice within a seven-day period, leave of the Court must be sought for extension of time. In such cases the Court may grant an adjournment (see Auckland City Council v Pendergrast [2002] CRN 1004034048-52).

In Bay of Plenty Regional Council v Salt [1993] CRN 2070010589, Salt was refused leave to advance a defence under s341(2), on the basis that notice had not been given to the prosecutor. The Court said that granting leave without the notice prejudiced the prosecution case.

In Wellington Regional Council v Stuart & Race [1993] CRN 3035003679-82, Judge Skelton refused an application for extension of time to give notice of defence under s341(3). The defendants were out of time by more than 100 days and had legal representation for most of that time.

Sentencing

Overview of sentencing

Sentencing is the process whereby a Court arrives at an appropriate punishment for offending. It is a balancing exercise in which a range of factors are weighed.

Local authorities through their legal counsel can take an active part in sentencing. This can be done through both:

In Auckland Regional Council v Machinery Movers [1994] 1 NZLR 492 at 501, the High Court noted that:

Like many other statutes, the RMA is silent on the matters which may be taken into account on sentencing. To a large extent, the relevant criteria must be inferred from a consideration of the broad legislative objectives.

The High Court quoted and approved of the sentencing factors in R. v Bata Industries Ltd [1992] 9 OR (3d) 329 (liability); 7 CELR (NS) 293 (sentencing). Bata was a Canadian Court of Appeal case about discharge of waste by a shoe company into the ground in Ontario:

Within the subtopic of public welfare offences, environmental offences have their own set of special considerations … The severity of the sentence should vary in accordance with several factors, including:

  1. The nature of the environment affected;
  2. The extent of the damage afflicted;
  3. The deliberateness of the offence;
  4. The attitude of the accused.

In sentencing corporations convicted of environmental offences, the Court should consider:

  1. The size, wealth, nature of operations and power of the corporation;
  2. The extent of attempts to comply;
  3. Remorse;
  4. Profits realised by the offence;
  5. Criminal record or other evidence of good character.

Some or all of the sentencing factors for environmental offences, as stated in the Bata decision and approved by the High Court in Machinery Movers, have been referred to in the sentencing notes of almost every prosecution under the RMA since the Machinery Movers case.

Sentencing options

The RMA expressly provides, on prosecution, for fines, enforcement orders, and imprisonment in some cases. The Sentencing Act also applies, and should be read together with the RMA.

The Court has three options, if a defendant pleads guilty:

Section 20 of the SA allows the following alternatives:

The major implication of the alternatives in s20 of the SA is, that the local authority cannot ask for both a fine and community work. Yet both might be desirable in environmental cases to achieve a financial penalty, as well as actively demonstrate compensation and perhaps remorse to the community at large.

Sections 11 and 12 of the SA place a presumption in favour of reparation and fines if they can be lawfully imposed. Imprisonment is reserved for situations where the offenders are proven to have acted knowingly and with a demonstrated contempt for their legal obligations, and where the Court is convinced that no other sentence will achieve the relevant purposes of the RMA or is likely to be complied with by the offender if imposed. Section 16 of the SA acknowledges that, in general, it is desirable to keep offenders in the community as far as that is practicable and consonant with the safety of the community.

Reparation is allowed for loss of, or damage to, private property. RMA offences rarely cause such personal loss. However, an order under s314 of the RMA can include restoration of a natural or physical resource (s314(4) of the RMA). Examples include tree planting on public reserves, after offenders have illegally cleared vegetation.

Community work is available under s55 of the SA for offences punishable by imprisonment, but not all RMA offences are (eg, obstruction, breach of an excessive noise direction or s322(1)(c) abatement notice for noise, or failure to provide information required under s22 of the RMA). It is also available if the enactment prescribing the offence expressly provides that a community-based sentence may be imposed on conviction. The SA amended s339 of the RMA by inserting subsection (4), providing for a sentence of community work to be imposed.

Section 50 of the SA allows special conditions to be imposed for a programme of supervision, where standard conditions would not adequately address the significant risk of further offending. This might include participation in an educational programme. There have been instances where offenders that are a person other than a natural person have made offers of amends and these have been taken into account at sentencing. In RMA-related cases, this has included presentations to schools and industry groups about good environmental practice.

The making of orders other than, or in addition to, the imposition of a fine, aligns well with s7 of the SA, for example, "to promote in the offender a sense of responsibility for and an acknowledgment of that harm", and "to provide reparation for harm done by the offending". Some people do not have the ability to pay a fine; conversely, few fines get close to maximum penalties, though fines are increasing for recurrent offenders in particular. Other sentences can get better results, especially for big companies or wealthy individuals.

What R. v Bata Industries became known for in Canada, was the creative approach it took to sentencing: the Court applied its probation order powers to require publication of the details of the offence in Bata 's international journal. The first such order in relation to RMA offences was made in New Zealand in a follow-up case to Auckland Regional Council v Nuplex Industries (DC Auckland, CRN 2004066321, 18/03/2003, Judge McElrea) where the court required that Nuplex Industries include both:

Fines to be paid to the local authority

Where a local authority lays a charge (information) and there is a conviction with the Court imposing a fine, then the fine is paid to the local authority under s342(1) and s342(2) (less a deduction of 10% which is credited to the Crown Bank account).

Under s342(1) the Court can order that the whole fine be paid to the local authority, as was done in Franklin District Council v McCollum [1994] NZRMA 407.

Nothing prevents a local authority from redirecting (part of) those funds to a specific environmental purpose, as compensation to the community at large. Creative use of fines in Canada includes requiring a convicted company to pay $100,000 to promote the conservation of fish habitat; ordering a company to pay $30,000 to develop a local toxic waste programme; and directing a corporation to pay their fine to a local school board for the purpose of environmental education.

Restorative justice

Restorative justice in New Zealand started in the Youth Courts and was trialled in the District Court. It is now incorporated into RMA offence proceedings by agreement of the parties, to engage in meetings that can result in an offer of amends; this may affect sentencing (pursuant to s10 of the Sentencing Act).

Restorative justice is a theory of justice that emphasises repairing the harm caused or revealed by criminal behaviour. Some of the programmes and outcomes typically identified with restorative justice include victim offender mediation, conferencing, victim assistance, ex-offender assistance, restitution and community service. Typically the programmes use cooperative processes involving all stakeholders to identify and take steps to repair harm. The acknowledgement of guilt by the defendant, and of the fact that he or she may have caused harm, is the crucial pre-requisite.

What makes restorative justice an alternative approach, is that it brings the victims and the community into the circle of justice. It rejects the common choice between either assisting offenders or punishing them as too narrow, being focused only on the offender and the act of law breaking. Its central aims include:

Three principles form the foundation for restorative justice:

The fact that restorative justice agreements are tied to sentencing is both a carrot and a stick to the defendant, especially if their track record and previous attitude is an aggravating factor for penalty.

Few local authorities have been involved in restorative justice on RMA offences, and opinions are mixed about its effectiveness. One of its primary advantages are: raising community awareness of compliance under the RMA; gathering feedback about existing environmental values held by the community; and providing opportunities for ongoing informal monitoring and reporting on environmental matters of interest to citizens, including compliance. A case law example is Auckland City Council v B & C Shaw Ltd and George Bernard Shaw [2006] CRN: 2004502435, 5003402436.

Cautions include a danger of focusing too much on compensation and mitigating the effects of the offence, and less on appreciating the harm done and demonstrating remorse. The defendant may be more than willing and able to pay for mitigation to avoid a serious penalty or conviction, without being tested as to genuine remorse or a change in attitude about environmental behaviour. There is also the difficulty of providing an ongoing framework for attitude change, because environmental values do not change overnight. Local authorities should also be wary of the costs that agreements can impose on them down the track; for example if the defendant pays for the planting of trees on public reserves, there are ongoing maintenance costs.

Costs

In common law, costs are the remuneration and disbursements incurred in relation to legal work. The Court can award costs against (to) the unsuccessful party, in favour of the successful party in a prosecution.

Costs awarded to the prosecuting authority

Section 4 of the Costs in Criminal Cases Act 1967 (CCCA) authorises the Court, when a defendant is convicted subject to any regulations made under the Act, to order the defendant to pay such sum as it thinks just and reasonable towards the costs of the prosecution.

There is a maximum scale of costs in the schedule to the Costs in Criminal Cases Regulations 1987. The scale in the schedule for conducting a prosecution is:

There is power under s13(3) of the CCCA for the Court to make an order for the payment of costs in excess of the scale if the Court is "satisfied that, having regard to the special difficulty, complexity, or importance of the case, the payment of greater costs is desirable". In Auckland Regional Council v Haines House Removals Ltd [2000], the Court considered that there was no jurisdiction to award costs in excess of the scale. The case, while important, was not of 'special importance '.

Costs incurred by a local authority in the taking of a prosecution (eg, solicitor fees and witness expenses) are to be considered separately from costs borne in the investigation of an offence. They are also separate from any direct action taken to remedy effects where there is non-compliance, including the indirect costs of investigating and monitoring those effects. Costs in the latter category can be recovered by way of an enforcement order under s314(1)(d).

In Interclean Industrial Service Ltd v Auckland Regional Council [2000] A198/99, the Environment Court awarded costs against Interclean from contravention of an abatement notice. Interclean subsequently appealed to the High Court and sought that scale costs be imposed in place of the $7,500. In making a decision, the High Court decided that the legal costs of taking a prosecution could not come within s314(1)(d) (relating to reimbursement or payment of costs of avoiding, remedying or mitigating adverse effects on the environment), because:

Costs awarded to the defendant

Section 5 of the Costs in Criminal Cases Act authorises the Court, subject to any regulations made under the Act, to order that the defendant be paid such a sum as it thinks just and reasonable towards the costs of the defence. This applies only when any defendant is acquitted of an offence, or where the information charging the defendant with an offence is dismissed or withdrawn - whether upon the merits or otherwise.

The schedule to the Costs in Criminal Cases Regulations referred to above applies, as does s13 of the CCCA, which allows the scale to be exceeded if the Court is "satisfied that, having regard to the special difficulty, complexity, or importance of the case, the payment of greater costs is desirable".

Section 5 of the CCCA provides that the Court, in deciding whether to grant costs and the amount of any costs, shall have regard to all relevant circumstances. Particular considerations are whether:

Best practice examples

Scenarios

Infringement notice

Scenario 1: Error in notice for a infringement hearing

Enforcement officer Harry issues an infringement notice to Helen Melon for breach of s15(2) of the RMA. Ms Melon fails to pay the infringement fee within the 28-day period and Harry issues a reminder notice.

Ms Melon denies liability and requests a Court hearing 15 days after service of the reminder notice. Harry commences proceedings by filing a notice of hearing in Court, and he arranges service of the notice on Ms Melon. The Court allocates a hearing date.

A week before the hearing, Harry checks the infringement notice, the reminder notice and the notice of hearing. Harry is horrified to find that in the notice of hearing, the date of issue of the infringement notice is incorrect, as is the location at which the incident occurred. All the details in the infringement notice and the reminder notice are correct.

Q1: What should Harry do?

A1: The notice of hearing is only invalid if there has been a miscarriage of justice. In this case the infringement notice and the reminder notice have the correct details, therefore the notice is not invalid. In Greenfield v Police there was a similar situation and the Court held there was no miscarriage of justice, and that the notice of hearing was not invalid because the information in the infringement notice and the reminder notice was correct; Mr Greenfield could not have been in any doubt as to what was alleged against him. The Council's lawyer should seek leave at the hearing to amend the notice of hearing.

Scenario 2: Discharge of cowshed effluent

Enforcement officer Harry issues an infringement notice to Simon Sully for illegal discharge of cowshed effluent, in breach of s15(1)(b) of the RMA. The infringement fee is $750.

Mr Sully phones Harry and is very apologetic; he assures Harry it was a one-off incident and there will be no further illegal discharges. Mr Sully asks if Harry will reduce the fee to $500. Harry considers that Mr Sully is being truthful and accepts his assurance.

Q2: Can Harry reduce the fee?

A2: The Council's policy on infringement notices should cover this issue. If the council policy allows Harry to reduce the fee, he can do so (the council policy may provide that requests for reduction of fees are referred to a senior enforcement officer or to the Council's enforcement decision group).

Prosecution

Scenario 1: Pollution in river

Council receives a complaint of dead eels in a river. Harry and other enforcement officers investigate immediately and find thousands of dead eels in the river. They establish that the eels have died as a result of a caustic soda solution which has been discharged into the stream from a dairy factory.

The dairy factory owner, Mr Keel, admits that the caustic soda solution was discharged in breach of the resource consent and as a result the eels were killed. Mr Keel tells Harry that steps have been taken to ensure the incident does not occur again. Samples are collected and analysed and confirm that caustic soda was discharged and the eels died as a result.

Q1: What is the most appropriate enforcement mechanism?

A1: The adverse effect is serious - thousands of eels have been killed. The council can prosecute. It appears there is sufficient evidence to prove the charge beyond reasonable doubt. The company has admitted the discharge and that the eels died as a result of the discharge.

Before the council prosecutes, advice should be sought from the Council's lawyer to confirm there is sufficient evidence to prosecute and there is no defence available.

If prosecution is successful, the Court may, instead of or in addition to the maximum penalties of s339(1) and (1A) order the council to review the resource consent by directing it to serve notice under s128(2) to review the consent conditions. If the council finds that there are significant adverse effects on the environment resulting from the exercise of the consent, the council can, as set out in s132, cancel the 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

Relevant publications

A Study into the use of Prosecutions under the RMA 1991 - 1 May 2005 to 30 June 2008

Current challenges

Infringement notices

Who do I issue with the notice if there are a number of people involved?

When a number of people are responsible for the activity, a separate infringement notice can be issued to each person who has caused the problem (eg, the owner and occupier, the company directors and employees, and any others). If the persons are jointly responsible, for example as owners in common, or company directors, the notice can be issued to each person "together with …" the other names.

Can I continue to issue infringement notices if the offence continues?

Section 339(6) of the RMA provides:
The continued existence of anything, or the intermittent repetition of any actions, contrary to any provision of this Act shall be deemed to be a continuing offence.

If there is a continuing offence (eg, discharge of cowshed effluent into water in contravention of s15(1)(a) on 1 November, 10 November and 20 November) then on each day the person responsible has committed a separate offence. The local authority can issue a separate infringement notice for each day the offence has occurred. If infringement notices are issued for 1 November, 10 November and 20 November offences and on 11 December the offence is still occurring, the local authority can either prosecute for the 11 December offence or issue another infringement notice.

Continued offending means that the gravity of each new and separate offence increases. At some point, it is arguable that the offence is no longer a minor matter for which the infringement regime is designed. This can be especially so as fines mount and approximate a sentence that might be given by a court upon prosecution. In this situation, it might become unreasonable to pursue enforcement notices as an enforcement tool, and prosecution should be taken instead.

What if the appeal period for an abatement notice has not expired but the deadline has?

In that case, the infringement offence occurs on the date and time the enforcement officer inspects the site to check for compliance with the abatement notice after the deadline expired, and discovers the abatement notice has not been complied with. It is this offence that would be set out in the infringement notice, regardless of whether the period for appeal of the abatement notice had already expired.

Should I issue an infringement notice?

It may be inefficient to issue the infringement notice if an appeal on the abatement notice may still be made. The appeal may indicate flaws in the notice. If the abatement notice was to fail, so would the infringement notice. The local authority might want to consider any flaws before committing itself both as respondent to the appeal, and to a likely defended hearing on the infringement notice. Note, however, that the authority can simply withdraw the infringement notice or not issue a reminder notice and deal with any flaws later in that way.

What may be more important is the annoyance caused to the recipient of the infringement notice, when they had not yet fully considered their options for appealing the abatement notice.

Stopped from further action?

Schedule 2 of the Regulations, summary of rights, clause 1, informs the recipient that:

If you pay the infringement fee within 28 days after the service of this notice, no further action will be taken against you in respect of this infringement offence. Payments should be made to the enforcement authority at the address shown on the front of this notice.

It is arguable that the effect of clause 1 is that an abatement notice or enforcement order cannot be issued to require remedial action. However, this regulation is subordinate legislation, and the conclusion would seem contrary to both the purpose of the empowering Act and the duties in Part 3: non-compliance and the effects it caused would be allowed to continue. One view is that clause 1 should be construed narrowly to reflect an established principle, that a person cannot be held liable more than once for the same act or omission that constitutes an offence.

Prosecution

Should prosecution be the last resort?

Thinking of prosecution as the 'last resort ' usually means you are thinking of it as a tool to get compliance when there is a breach. However, prosecution is primarily about imposing penalties and deterrence; this includes deterrence from future offending, and offending in the community at large. It is not just about the present breach. Whether someone has complied or not after the breach is detected has limited relevance; there can be many good reasons why they should still be prosecuted. This could be recklessness, or harm caused by the initial act and the fact that it was not easily repairable. A person may also be a repeat offender, or offending deliberately and for commercial gain - all these factors weigh in the decision to prosecute.

How do I decide when to prosecute, given the complexity of considerations?

Guidance on when to prosecute can be derived from the sentencing provisions, the Solicitor General 's guidelines, and factors considered in case law. These can be summarised in three categories. It is up to the local authority to weigh the factors associated with these categories:

The process you follow in making your decision is important. It is better that no single person makes the decision, due to the limitations of experience and perspective. If the decision is to be made by elected representatives (such as councillors), it should be well-informed by officer reports. If elected representatives make the decision, they are best provided with background presentation on the purposes of prosecution under the RMA, and examples of why prosecution decisions have been important and successful - both in the district / region and elsewhere in New Zealand (if relevant). If decision-making is by delegation at level of the council officer or staff, then various checks and balances can be built into the process (see RMA Enforcement Manual Forms and Checklists - Example Prosecution Protocol.)

Why is it important to know who has had dealings with the offender or site?

Charges can be laid up to six months after the offence first became known or should have become known: s338(4) of the RMA. A special case is if another officer was on-site and could have detected the offence but did not, or had a conversation with the offender that could reasonably have led him or her to detect an offence upon further investigation, but didn 't proceed with it. In this situation, the defendant may have cause for an application to strike out proceedings on the basis of s338(4), if it is more than six months after the time the offences should have been detected.

If the offence is a continuing one, initial knowledge of the offending will not be critical to the timeframe, but the extent of the period in which the offending carried on will be. The information may be laid any time within six months of that ongoing period (R. v Gordon [2003], T024528).

Acknowledgments

Quality planning would like to make the following acknowledgments.

Published October 2009.