Mandatory directives: Abatement notices, enforcement orders and water shortage directions

Abstract

This guidance note is the third of seven guidance notes that make up the RMA Enforcement Manual. Mandatory directives under the Resource Management Act 1991 (RMA) direct the recipient to cease or take action. Failure to comply with a mandatory directive is an offence under the RMA.

Mandatory directives include abatement notices, enforcement orders (including interim enforcement orders) and water shortage directions. Excessive noise directions are another kind of mandatory directive under the RMA. See the Managing Noise through Enforcement guidance note for more information on excessive noise directions.

This guidance note provides guidance on:

• abatement notices (including the scope of a notice)
• enforcement orders
• interim enforcement orders
• water shortage directions.

Abatement notices are frequently effective in urgently remedying a situation, particularly when backed up with prosecution in case the abatement notice is not complied with. However, sometimes the sanction and protection of a Court order is desirable, especially with litigious or obstinate offenders. In this case an interim enforcement order is appropriate.

Before using a mandatory directive, a local authority should usually conduct an investigation and provide an opportunity, to the persons involved in the breach or causing of effects, to explain the situation and offer a voluntary solution.

Guidance note

Abatement notices

Abatement notices are served by enforcement officers on persons breaching provisions of the RMA, a provision of a RMA plan, or a resource consent. Unlike enforcement orders they do not require an application to be made to the Environment Court first. Sections 4 (5)-(9) set out the requirements for servicing or issuing an abatement notice to the Crown.

Abatement notices are a very efficient mechanism for obtaining compliance with the RMA. Anecdotally, the majority of abatement notices issued are complied with, so it is usually the cheapest option and the enforcement officer's primary tool.

Only the enforcement officers of local authorities can issue abatement notices. The relevant sections are 322-325A of the RMA.

A restrictive approach was taken in the early decisions on abatement notices (eg, McNoe v West Coast Regional Council). The High Court in Zdrahal v Wellington CC [1995][1993] W010/93took a more relaxed approach which has since been followed by the Environment Court. For example, the Environment Court in Lendich v Waitakere City Council [1999] A077/99 held:

[...] the Court should, in our view, take a robust attitude to objections and arguments based on technical and mechanical non-compliance with the form and the regulation without regard to the substance of the matter. It is a question in each case as to whether the notice taken in its entirety adequately complies with the regulation and the prescribed form and clearly informs the recipient of all necessary and relevant matters.

A hearing of an appeal to the Environment Court against an abatement notice (depending on the issues) can be as expensive and time-consuming as a hearing of an application for an enforcement order. Some local authorities choose to cancel an abatement notice which has been appealed, and apply for an enforcement order, rather than spend money and time defending a notice that has limited scope. An appeal can act as a stay on some types of abatement notices (see Defence to a notice - s325).

Scope of an abatement notice - s322

Section 322 sets out the scope of an abatement notice, provides for the service of an abatement notices by an enforcement officer, and requires the enforcement officer to have reasonable grounds for believing that the circumstances in s322(1) or (2) exist.

The abatement notice must specify the subsection of s322 that the enforcement officer relies on. Sometimes it is appropriate to rely on more than one subsection of s322 (see Best practice examples - Abatement notice forms).

In terms of scope, abatement notices can be categorised under the following three types:

1: Cease or not commence an action

• Section 322(1)(a)(i) - requires that person to cease, or prohibits that person from commencing, anything done or to be done by or on behalf of that person that, in the opinion of the enforcement officer, contravenes or is likely to contravene the RMA, any regulations made under the Act, a rule in a plan, or a resource consent.

A variation of this form of abatement notice is also provided for:

• Section 322(1)(a)(ii) - requires that person to cease, or prohibits that person from commencing, anything done or to be done by or on behalf of that person that, in the opinion of the enforcement officer, is or is likely to be noxious, dangerous, offensive or objectionable to such an extent that it has or is likely to have an adverse effect on the environment. Note that in Zdrahal v Wellington City Council [1995] 1 NZLR 700; [1995] NZRMA 289 (HC), the High Court held that the meaning of s322(1) was plain and was intended to apply to continuing effects and continuing activities.

2: Take an action

• Section 322(1)(b)(i) - requires that person to do something that, in the opinion of the enforcement officer, is necessary to ensure compliance by or on behalf of that person with the RMA, any regulations made under the Act, a rule in a plan or a proposed plan, or a resource consent, and also necessary to avoid, remedy, or mitigate any actual or likely adverse effect on the environment caused by or on behalf of that person.

A variation of this form of abatement notice is also provided for:

• Section 322(1)(b)(ii) - applies the same grounds as s322(1)(b)(i), but relating to any land of which the person is the owner or occupier. This is particularly useful if the person who actually caused the effects cannot be identified.

3: Adopt the best practicable option to reduce noise

• One type of abatement notice is for noise. Section 322(1)(c) - requires that person, being an occupier of any land or a person carrying out any activity in, on, under or over a water body or the water within the coastal marine area, who is contravening s16 (which relates to unreasonable noise) to adopt the best practicable option of ensuring that the emission of noise from that land or water does not exceed a reasonable level.

Abatement notices and proposed plans

• Notice requiring an activity to cease / or prohibit an activity
  Section 322(2(a)) - where any person is under a duty not to contravene a rule in a regional, district or coastal plan / proposed plan (unless allowed by resource consent, s.10 or s.20A), an abatement notice may be issued to require that person to cease, or prohibit that person from commencing anything done or to be done by or on behalf of that person that, in the opinion of the enforcement officer, contravenes or is likely to contravene a rule in regional, district or coastal plan / proposed plan (unless allowed by resource consent, s.10 or s.20A).
• Notice requiring something to be done
  Section 322(2)(b) - where any person is under a duty not to contravene a rule in a regional, district or coastal plan / proposed plan (unless allowed by resource consent, s.10 or s.20A), an abatement notice may be issued to require that person to do something that, in the opinion of the enforcement officer, is necessary in order to ensure compliance by or on behalf of that person with a rule in a regional, district or coastal plan / proposed plan (unless allowed by resource consent, s.10 or s.20A).

Onus of proof

The local authority has the onus of establishing the grounds to support its abatement notice. The standard of proof is on the balance of probabilities. In Amor v New Plymouth District Council [2001] NZRMA 221 (and also see CA9/01, AP34/02, NP335/99), the High Court said:

"On the question of the standard of proof it was submitted that something more than proof on the balance of probabilities should have been required given the seriousness of the allegation. While it may perhaps be arguable that the outcome of a s65(4) proceeding is so serious for an owner that something more than a balance of probabilities standard of proof should be contemplated, such is not necessarily the case."

The High Court held that balance of probabilities is the correct standard.

In Black v Southland Regional Council [1994] C104/94 the Court considered there was sufficient evidence for issuing the abatement notice, despite there being no site inspection by the enforcement officer (who had been briefed by another council officer). The Court was of the opinion that s322(4) of the RMA does not prescribe any particular manner in which an enforcement officer is to be satisfied that he or she has reasonable grounds.

Despite the finding of the Tribunal in Black, enforcement officers who issue an abatement notice should:

• inspect the site
• form their own opinion as to whether there are reasonable grounds to issue the abatement notice.

An enforcement officer should also collect evidence specific to prove the elements of the offence. For example in Christchurch City Council v Blackett [1993] CRN 3009007407, the Court was convinced by the evidence that showed car repairs were being carried out on a rural site, but considered there was no evidence that proved such repairs were associated with a business (which would then have proven the offender had not complied with an abatement notice to cease operating a car repair business on the site).

Effect of an abatement notice - s323

Section 323 of the RMA provides that:

• the recipient of the abatement notice shall comply within the period specified in the notice, subject to the rights of appeal in s325 and, unless the notice directs otherwise, pay all costs and expenses of complying with the notice
• if the notice is made under s322(1)(c) (see 3: Adopt the best practicable option to reduce noise) and the recipient fails to comply, an enforcement officer may take reasonable steps to reduce the noise to a reasonable level and, when accompanied by a constable, to seize and impound the noise source.

Content and form of an abatement notice - s324

Section 324 of the RMA sets out the contents of an abatement notice and provides that the notice shall be in the prescribed form, Form 48 of the Resource Management (Forms, Fees and Procedure) Regulations 2003.

In regard to the level of preciseness appropriate in an abatement notice, the following is relevant:

• Location - The description of the location must be given with sufficient accuracy so that the recipient can identify the locality to which the abatement notice relates (see Dennis v Tauranga District Council [1992] 1 NZRMA 255 (PT)). The most obvious way to identify the property is by physical address, but it may also be necessary to include the legal description and/or a New Zealand Map Series reference. The description depends on the circumstances. For example, if the recipients are undertaking the activity on a particular lot of land and they own a number of lots of land for which the physical address is the same, the lot number should be stated in the abatement notice.

• Reasons for and requirements of the notice - A clear explanation as to why the notice was issued must be given. The notice should also provide precise details of the actions required to be taken, ceased, or not commenced.

Defence to a notice - s325

Section 325 of the RMA provides for appeals against abatement notices and applications for a stay. Notices of appeal must be in the prescribed form, Form 49 of the Resource Management (Forms, Fees and Procedure) Regulations 2003.

The recipient of an abatement notice may apply for a stay. An application for a stay must be in the prescribed form, Form 50 of the Resource Management (Forms, Fees and Procedure) Regulations 2003.

An appeal does not operate as a stay unless:

• the abatement notice is within the scope of s322(1)(a)(ii) and the recipient is complying with the RMA, any regulation, a rule in a plan, or a resource consent (relates to s.17 duty), or
• a stay is granted by an Environment Judge.

Before granting a stay, an Environment Judge must:

• consider the likely effect on the environment of granting a stay
• whether it is unreasonable for the person to comply pending the decision on the appeal
• whether to hear the applicant and/or the local authority
• and such other matters as the Judge thinks fit.

In Warren Fowler Ltd v Manukau City Council [1998] AO71/98, the Environment Court tentatively adopted a principle that an application for stay should be based on the purpose of sustainable management, having regard to the consequences for the appellant of not granting a stay. The Court will weigh the adverse effects on the environment against the adverse effects on the appellant. The casewas cited and followed by the Environment Court in Waimakiriri District Council v Canterbury Regional Council [2001] C30/2001.

The Environment Court shall not confirm an abatement notice in the circumstances specified in s325(5), in particular where the recipient is acting in accordance with a rule in a plan, resource consent, or designation. See Challenges in practice - Issuing an abatement notice when the activity is permitted/approved for more information.

Amendment and cancellation of notice - s325A

Section 325A of the RMA provides for the following:

• The local authority can cancel the abatement notice if it considers the notice is no longer required. Written notice of cancellation must be given. Refer to the: Cancellation of the abatement notice by the local authority form (PDF, 17 KB).
• Any person directly affected by the abatement notice may apply in writing to the local authority to change or cancel the notice. The local authority must give written notice of its decision. Refer to the: Notice of decision re application to change/cancel abatement notice (PDF, 17 KB).

If the local authority, after considering an application to change or cancel the abatement notice, confirms the abatement notice or changes it in a way other than that sought, the person who applied for the cancellation or change may appeal to the Environment Court in accordance with s325(2). This provision means that, despite missing the deadline for appeal of an abatement notice, recipients can still take their concerns about the notice before the Environment Court.

Enforcement orders

An enforcement order is similar in some respects to an abatement notice in that it is used to require a person to cease doing something that contravenes a rule in a plan, requirement in the RMA, or that is dangerous, noxious or offensive. It can also be used to require and offender to do something necessary to ensure compliance or avoid, remedy or mitigate adverse effects.

Unlike abatement notices, enforcement orders are issued by the Environment Court and can only be obtained by application to the Court (ss314-319 and s321 of the RMA). As set out in s4(6) an application for an enforcement order can be made against an instrument of the Crown but only if it is a Crown organisation, a local authority applies for the order and the order is made against the Crown organisation in its own name. Enforcement orders offer more options than an abatement notice, including the recovery of clean up costs incurred or likely to be incurred in avoiding, remedying or mitigating any adverse effect on the environment. The court may also order restoration of a natural or physical resource. Where the offender has failed to comply with an order, the local authority, on consent of the court, may go ahead and comply on the respondent 's behalf (and recover the cost of those works (RMA s315)).

It can be useful to begin enforcement order proceedings to alert offenders to the seriousness of their actions and make them more amenable to solutions. If a problem or the options to resolve it are complex, enforcement proceedings provide a court-supervised procedure for bringing about a conclusion, and if problems are encountered during the implementation of the solution, the parties can return to court for direction.

Scope of order - s314

The scope of an enforcement order is set out in s314. In summary, an order may require a person to:

• cease, or prohibit a person from commencing, anything which, in the opinion of the Environment Court, contravenes or is likely to contravene the RMA, any regulations under the RMA, a rule in a plan, a rule in a proposed plan, a requirement for a designation or for a heritage order, or a resource consent, s10 (certain existing uses protected), or s20A (certain existing lawful activities allowed)
• cease, or prohibit a person from commencing, anything that, in the opinion of the Environment Court, is or is likely to be noxious, dangerous, offensive or objectionable to such an extent that it has or is likely to have an adverse effect on the environment
• do something necessary to comply with the RMA, any regulations under the RMA, a rule in a plan, a rule in a proposed plan, a requirement for a designation or for a heritage order, or a resource consent
• do something necessary to avoid, remedy, or mitigate any actual or likely adverse effect on the environment caused by or on behalf of that person
• remedy or mitigate any adverse effect on the environment caused by or on behalf of that person
• pay money to, or reimburse any other person for, actual and reasonable costs and expenses (see RMA s314(2)) incurred or likely to be incurred in avoiding, remedying or mitigating any adverse effect on the environment, where the person against whom the order is sought fails to comply with an enforcement order, an abatement notice, a rule in a plan or proposed plan, a resource consent, or any of that person 's other obligations under the RMA
• restore a natural or physical resource to its state before the occurrence of the adverse effect.

The applicant for an enforcement order has to prove, on the balance of probabilities, that an enforcement order is required. In applying this standard of proof, consideration must be given to the seriousness of the consequences of making an enforcement order. If there is cause for doubt, the Court will give benefit of doubt to those against whom orders are sought (Hall v Port Otago Ltd [1996] C48/96).

Whether an activity is objectionable or offensive (s314(1)(a)(ii)) should be tested objectively. The High Court has held that the following factors are relevant (see Zdrahal v Wellington City Council [1995] 1 NZLR 700). See also Watercare Services Ltd v Minhinnick [1998] 1 NZLR 294 (CA)):

• Is the assertion of the person seeking an enforcement order honestly made?
• If the assertion is honestly made in the opinion of the Court, is the activity noxious, dangerous, offensive or objectionable, or likely to be so?
• If it is, is it of such extent that it is likely to have an adverse effect on the environment?
• In all circumstances, should the Court 's discretion be exercised and an enforcement order made?

Further information about recovering costs relating to enforcement action, including the use of s314(1)(d) for recovering the costs of avoiding, remedying or mitigating adverse effects on the environment is contained in the guidance note Enforcing Plans and Consents, Costs, Service of Documents and Environment Court Practice Notes.

Procedure for application - RMA ss316-318

The procedure for making an application is set out in ss316 to 318, is summarised the diagram below. Text following the diagram provides an explanation of the stages.

Preparing and Hearing an Application

An application for an enforcement order must be made in the prescribed form of the Resource Management (Forms, Fees and Procedure) Regulations 2003) and be lodged with the Environment Court.

The applicant must serve notice of the application in the prescribed form (Form 44 of the Resource Management (Forms, Fees and Procedure) Regulations 2003) on every person directly affected by the application within five working days after the application is made.

Before deciding an application for an enforcement order, the Environment Court shall hear the applicant and any person against whom the order is sought who wishes to be heard.

Consistent with Berhampore Residents Assn Inc v Wellington City Council [1992] W095/92 enforcement orders:

• must be written in precise terms that are capable of enforcement
• should not contain information that is debateable or conjectural.

Decision on application including defences - s319

Section 319 of the RMA provides that, after hearing an application, the Court can refuse the application or make any of the orders outlined in s314.

The Court has a discretion to refuse an order even when the grounds are made out (Rangiora New World v Barry [1992] 1 NZRMA 133 (PT); this decision was upheld in cases such as Hill Park Residents Association Inc v Auckland Regional Council [2003] A30/2003 and Waikato Regional Council v Campbell [2002] A206/02).

For the Court to have jurisdiction on an enforcement order, there does not need to be a high degree of adverse effects on the environment (Minhinnick v Watercare Services Ltd and Minister of Conservation [1997] A055/97).

In AMP v Gum Sarn Property Ltd [1992] 2 NZRMA 119, the Planning Tribunal dealt with a private application for an enforcement order. The Tribunal held that if the local authority does not enforce its plan and a member of the public seeks an order, the fact that the member of the public is not officially responsible for enforcement of the plan does not count against the Court 's exercise of its discretion against a respondent. On the question of whether an application for an enforcement order is weakened by the fact that the local authority has been slow or otherwise remiss in enforcing the breach of a Plan, the Tribunal held the following:

• There is significant public interest in the consistent and even-handed enforcement of plans. Respondents are required to abide by the law regardless of whether the council was vigilant.
• Property owners who fail to observe the relevant planning provisions should not be permitted to continue to profit from that failure.
• Even if a council official misleads the respondent, compliance is still required. However, if a person reasonably relied on misleading information from a council official, this might influence the exercise of the Court 's discretion to defer an order requiring compliance.
• The state of mind and conduct of the respondent is relevant to the discretion of the Court when it comes to the timing of the enforcement action and whether there are grounds for deferral of enforcement action.

The principles from this decision were upheld in Manukau City Council v Murray [2002] A084/2002. Similar questions were dealt with by the Tribunal in Canterbury Regional Council v Canterbury Frozen Meat Co Ltd [1994] A14/94. The Tribunal held the following:

• To refuse an enforcement order altogether when there have been illegal contraventions would, in the absence of unusual circumstances, tend to diminish public confidence in the statutory control over the discharge of contaminants, and in the perception that administration of this control is even-handed.

• Immediate compliance with an enforcement order is usually required, although there is a discretion to postpone the coming into force of an order. The circumstances supporting the deferral of an enforcement order are:+
  1. absence of evidence of environmental harm from excessive concentrations of contaminant in the discharge
  2. no flagrant or reckless contravention of the law
  3. the technical difficulty of ensuring that the effluent will constantly meet the stipulated limits without exception.

The discretion to grant or refuse an order is subject to the restrictions or defences in s319(2):

2. Except as provided in subsection (3), the Environment Court must not make an enforcement order under s314(1)(a)(ii), (b)(ii), (c), (d)(iv), or (da) against a person if-
   1. that person is acting in accordance with-
      1. a rule in a plan; or
      2. a resource consent; or
      3. a designation; and
   2. the adverse effects in respect of which the order is sought were expressly recognised by the person who approved the plan, or granted the resource consent, or approved the designation, at the time of the approval or granting, as the case may be.
3. The Environment Court may make an enforcement order if-
   1. the Court considers it appropriate after having regard to the time that has elapsed and any change in circumstances since the approval or granting, as the case may be; or
   2. the person was acting in accordance with a resource consent that has been changed or cancelled under s314(1)(e).

In Balfour v Central Hawkes Bay District Council [2006] CA174/06, the Court of Appeal noted that s10 (existing use rights) of the RMA provided an exception to the district plan to compliance with district plan rules on this occasion, but did not override the s16 duty (to avoid unreasonable noise). Use of s319 as an alternative defence failed as the Court stated s319 does not explicitly provide for a defence based on existing use rights, but on compliance with current rules or resource consents where adverse effects - in respect of which the order was sought - were recognised by the plan.

Application for an interim enforcement order - s320

Interim enforcement orders allow for urgent action, and are usually dealt with without a hearing and without serving notice on the other party; although a substantive hearing is scheduled for a later date. A local authority might seek and obtain an interim enforcement order in as little as two or three days, depending on the availability of evidence (by affidavit) and an Environment Court judge.

An application for an interim enforcement order is made under s320. The provisions of ss314-319 apply to an interim order, except to the extent varied by s320. The scope of an interim enforcement order is therefore the same as that for an enforcement order pursuant to s314.

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

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

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

In Walden v Auckland City Council [1992] A03/92 the Planning Tribunal observed:

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

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

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

An interim enforcement order stays in force until an application for an enforcement order under s316 is determined, or until the order is cancelled either under s320(5) or under s321.

Amend or cancel an enforcement order - s321

Section 321 of the RMA provides that anyone directly affected by an enforcement order may at any time apply to the Court to change or cancel the order. This provision provides an obvious route for the recipient of an interim enforcement order, who was not heard at the time, to address the effect of that interim order upon them. The application is made on Form 46 of the Resource Management (Forms, Fees and Procedure) Regulations 2003.

Failure to comply with an enforcement order - s 315(2)

If the respondent fails to comply with the enforcement order, any person may, with the consent of the Environment Court (s315(2) of the RMA):

1. comply with the order on behalf of the respondent, and for this purpose, enter upon any land or enter any structure (with a constable if the structure is a dwelling house)
2. sell or otherwise dispose of any structure or materials salvaged in complying with the order
3. after allowing for any moneys received under paragraph (b), if any, recover the costs and expenses of doing so as a debt due from that person.

Section 338(1)(b) of the RMA provides that it is an offence to contravene, or permit the contravention of, an enforcement order. In the case of a natural person the maximum penalty is two years ' imprisonment or a fine not exceeding $300,000 or for a person other than a natural person the maximum penalty is a fine not exceeding $600,000. If the offence is a continuing one, the offender is also liable to a further fine of a maximum of $10,000 per day or part of a day during which the offence continues. The Crown can be served with an enforcement order and can be prosecuted by a local authority but s4(10) sets out that as s4(8) and 4(9) are subject to the Crown Organisations (Criminal Liability) Act 2002, 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 above, 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 they may cancel the consent and can also recover any costs associated with this review from the consent holder(s132(4).

Contempt proceedings may also be brought under the District Court Act 1947 for deliberate breach of a court order (see Dunn v Smiturnugh Ltd & Others [2000] A047/00 for example).

Water shortage directions

Water shortage directions are issued under s329 of the RMA.

Scope and procedure for issuing a water shortage direction

Under s329, regional councils and unitary authorities can issue water shortage directions at any time there is a serious temporary shortage of water in its region or any part of its region. The direction may apportion, restrict, or suspend to the extent and in the manner set out in the direction:

1. the taking, use, damming, or diversion of water, and/or
2. the discharge of any contaminant into water.

Newspapers should be used to notify the order in accordance with s329(6). Where practicable, as a matter of good public relations, a copy of the notice should be personally delivered by council staff to each affected household.

As good practice, the following information should be included in a water shortage direction:

• clear identification of the area to which the notice applies
• the reasons for the notice
• a clear statement of the extent and manner of the apportionment, restriction or suspension
• the period of the direction, in days and dates.

Duration of direction

Section 329(3) of the RMA provides that a direction may not last for more than 14 days but may be amended, revoked or renewed by subsequent direction. If the direction is required for more than 14 days, the council must therefore renew the direction by giving a subsequent direction.

Failure to comply with a water shortage direction

Section 338(1)(d) of the RMA provides that it is an offence to contravene a water shortage direction. In the case of a natural person the maximum penalty is two years ' imprisonment or a fine not exceeding $300,000, for persons other than natural persons the maximum penalty is a fine not exceeding $600,000. The maximum fine for a continuing offence is $10,000 per day or part of a day during which the offence continues.

Contravention of a water shortage direction is not a strict liability offence. This means that it is necessary to prove beyond reasonable doubt that the defendant intended to commit the offence. Proving knowledge of the direction will usually be sufficient.

Waikato Regional Council v Amrat Bhana and Hira Bhana Co Ltd [1995] Judge Treadwell, DC Hamilton CRN 4057004787 to 4790) was a prosecution for contravention of a water shortage direction. In this case the Court considered that the taking was deliberate on 'no take ' days, but there was potential for misunderstanding on days that were not 'no take days '. The case is also interesting from the point of view that the case against Amrat Bhana personally was not proven beyond reasonable doubt and he was not found to be personally liable.

Best practice examples

Scenarios

Abatement notices

Scenario 1: Work on a tree

Jenny Jones makes a number of complaints about her neighbour Sammy Smith. Mrs Jones tells the Council that Mr Smith is damaging a 10-metre-high oak tree on his property. The tree is a scheduled protected tree in the Council Operative Plan. Harry investigates and finds that there is no sign of any damage to the tree.

Harry speaks to Mr Smith, who tells Harry that he has not 'touched ' the tree and Mrs Jones is insane. Mrs Jones continues to complain and Harry inspects the property again and finds that there is no sign of damage. Mrs Jones asks Harry to issue an abatement notice.

Q1: What should Harry do?

A1: Harry cannot issue an abatement notice. Before Harry can issue an abatement notice he must have reasonable grounds under s322(4) of the RMA to believe that any of the circumstances in s322(1) or (2) exist. Harry has inspected the tree and there is no evidence of damage, and it is therefore not appropriate for Harry to issue an abatement notice.

Scenario 2: Offensive symbols in public view

The Council receives complaints about a swastika that has been painted on the side of a house and is clearly visible. The complainants say that the swastika is extremely offensive. The swastika is in breach of the rules on signs in the Council Operative Plan. Harry decides to issue an abatement notice.

Q1: Which subsection(s) of s322 of the RMA should Harry rely on?

A1: Subsection (1)(a)(i).

The facts are taken from the Zdrahal v Wellington City Council). In that case an abatement notice was issued under s322(1)(a)(ii), which provides:

322. Scope of abatement notice—

1. An abatement notice may be served on any person by an enforcement officer—
   1. Requiring that person to cease, or prohibiting that person from commencing, anything done or to be done by or on behalf of that person that, in the opinion of the enforcement officer,—
      1. contravenes or is likely to contravene this Act, any regulations, a rule in a plan, or a resource consent; or
      2. is or is likely to be noxious, dangerous, offensive, or objectionable to such an extent that it has or is likely to have an adverse effect on the environment:

The Planning Tribunal in the decision queried why the Council chose to proceed under s322(1)(a)(ii) of the RMA instead of s322(1)(a)(i).

The Tribunal found that the transitional plan in relation to the control of signs is clear and would not have required the Tribunal to enter into a subjective assessment as to whether the swastika is or is not objectionable. The Tribunal made it clear that if the abatement notice had been issued under s322(1)(a)(i) of the RMA, the appellant Zdrahal could not have resisted the abatement notice.

Note: In this case, Zdrahal 's appeal failed and the abatement notice was upheld. The High Court held that the swastika was offensive and objectionable.

Scenario 3: Earthworks and change of circumstances through rainfall

Earthworks have been carried out at a property owned by Mr Smith; a neighbour, Mr White has complained to the council. Harry investigates and discovers that Mr Smith is not in breach of the RMA, any regulations, a rule in a plan or a resource consent. However as a result of the earthworks Mr Smith has carried out on his property, earth may slide onto the property of Mr White. Harry issues an abatement notice to Mr Smith under s322(1)(a)(ii) of the RMA.

Mr Smith appeals the abatement notice.

Following a heavy rainfall, some earth then slides from Smith 's property onto the neighbouring property owned by Mr White.

Q1: What should Harry do?

A1: The abatement notice is within the scope of s322(1)(a)(ii) in that that the earthworks are likely to be dangerous, and Smith is not in breach of the RMA, any regulation, a rule in a plan or a resource consent; therefore the appeal filed operates as a stay of the notice. The situation is now urgent.

Harry should investigate further with an engineer, talk to Smith and ask him to take steps to stop further earth sliding onto his neighbour 's property. Harry should also speak to Smith 's neighbour Mr White.

If Mr Smith refuses, an application for an interim enforcement order should be filed. The application should be supported by an affidavit from Harry exhibiting photographs of Mr Smith 's property, and of the neighbouring property showing the adverse effect to date. The application should also be supported by an affidavit from the engineer.

An application should be filed simultaneously seeking leave from the Court to cancel the abatement notice without prejudice to the Council taking other enforcement action on the grounds that:

• Mr Smith has not complied
• an appeal has been filed and this stays the notice
• the circumstances have changed
• the situation is now urgent.

Water shortage directions

Scenario 1: Operation of a pump during period of water shortage direction

A water shortage direction is advertised by a regional council in the local newspaper. Council staff receive a complaint about Gary Reedy from his neighbour, Mrs Fair. Mrs Fair alleges that Mr Reedy has been operating a pump in the stream above her property during the period of the water shortage direction.

Council staff (Harry Helpful and Harriet Happy) immediately inspect the property and find a submersible pump in the stream on Mr Reedy 's property. The pump is operating at the time of the inspection. The submersible pump has been positioned in the stream to gain the most benefit from a large spring and is pumping water about 150 metres to a large dam upstream, which is the legal point from which Mr Reedy takes water.

Mr Helpful and Ms Happy speak to Mr Reedy and point out to him that he is in breach of the water shortage direction. Mr Reedy 's reply is: "I was not aware of the water shortage direction".

Mr Helpful informs Mr Reedy that the water shortage direction was advertised in the local newspaper. Mr Reedy tells Mr Helpful that he does receive the newspaper but he does not look at the public notices. In fact when he is very busy he often does not read the newspaper at all. When he does read the newspaper, he will only read the first couple of pages.

Q1: Does the Council have sufficient evidence to prosecute?

A1: In this case the Council does not have sufficient evidence to prosecute. To succeed in a prosecution the Council has to prove beyond reasonable doubt that Mr Reedy intended to commit the offence. Mr Reedy claims that he did not see the advertisement in the newspaper.

Abatement notice forms

Examples of abatement notices within the scope of subsections of s322 (from Auckland City Council) follow.

Use the following chart as a guide to direct you to the example forms given for each of the main parts of s322 of the RMA. The example forms are based on Form 48 of the Resource Management (Forms, Fees, and Procedure) Regulations 2003.

EXPLANATION OF DIAGRAM: The diagram above shows that the Auckland City Council uses four difference forms of abatement notice under the RMA. The choice of notice depends on the nature of the offence:

• Example Form 1 (PDF, 25 KB) is used when the RMA, an RMA plan, or a resource consent condition is breached and there is a desire to ensure the offender ceases (or not commences) an activity to achieve compliance. Form 1 is issued against persons who are carrying out (or proposing to carry out) the activity that is non-compliant.
• Example Form 2 (PDF, 26 KB) is used when the RMA, an RMA plan, or a resource consent condition is being breached and there are effects on the environment. The resulting abatement notice can be lodged against a property owner, occupier or the person causing the offence and can require them to do something to achieve compliance and avoid, remedy or mitigate effects.
• Example Form 3 (PDF, 26 KB) is used where, although the offender is not breaching a plan or resource consent condition, an action is undertaken that is noxious, dangerous, objectionable or has adverse effects on the environment. The abatement notice can be lodged against any person responsible for the action, and can require them to cease or not commence an activity.
• Example Form 4 (PDF, 27 KB) is used in situations where an enforcement officer seeks that the occupant of land reduce noise to an expectable level using the best practicable option.

Relevant case law

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

Related guidance notes

• Investigation of incidents
• Application for a declaration
• Imposing penalties: Infringement notices and prosecutions
• Managing noise through enforcement
• Emergency powers
• Enforcing plans and consents, Existing use rights, Section 17, Costs, Service of documents and Environment Court practice notes
• RMA enforcement manual definitions, forms and checklists
• RMA enforcement manual case law summaries

Current challenges

Abatement notices

Deciding which subsection of s322 should be used in an abatement notice

Section 322 of the RMA allows for notices to be issued on a number of grounds. There is a need to choose carefully between the grounds, and consider what needs to be in the substance of the notice (note: examples of different forms or abatement notice are provided in the RMA Enforcement Manual Terms and Definitions, Forms and Checklists.

Confusion commonly arises as to whether a notice to cease something can cover a passive, ongoing situation like a building that exceeds maximum height or a sign that remains on display. If not, and the notice must be couched as a notice to do something (for example remove the sign or exceeding portion of the building), then the enforcement officer must be reasonably satisfied on a double test - that there is both a breach and an adverse effect. For many rules, for example development controls on buildings, it is difficult to accurately determine effects in an individual instance, especially where the degree of non-compliance is anything but large. The rules may be written to avoid cumulative effects, and these too are hard to determine and quantify. Conversely, for many effects there may be no breach.

The case Zdrahal v Wellington City Council [1993] W010/93 dealt with the latter situation, relating to an offensive swastika sign. In response to the submission that nothing about the sign remained to be prohibited or in ordinary use of the English language could cease, the High Court held that:

The provisions of section 322 are to be given a fair, large and liberal construction to ensure the object and the purpose of the Act as a whole and are not to be narrowly construed as by a pedantic grammarian.

In particular, s17(3) and s322 needed to be read together to allow a requirement to cease an activity which may have an adverse effect to the extent that it may be offensive even though there was no breach of the RMA.

In Lendich v Waitakere City Council [1999] A077/99, the Court considered two jurisdictional issues in relation to s17 (duty to avoid, remedy or mitigate adverse effects) in relation to abatement notices, even though s17 was not specifically referred to:

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

The Council submitted that the abatement notices contained grounds which, taken collectively, addressed the substance of s17(3)(b). The Court held that the notices addressed the substance of s17(3)(b) and also the substance of s332(1)(a)(ii). The grounds contained within clause 2(vii)(a)-(e) of the abatement notice all relate to adverse effects, and clause 3(ii) refers to the need to remedy adverse effects.

How particular must an abatement notice be?

In Schmuck v Far North District Council [2000] A026/2000, Judge Sheppard held:

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

In Oliver v Marlborough District Council [1999]W126/99, Judge Kenderdine:

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

In Whakatane District Council v Byrne [1993] CRN 3087005974 and 6749, the charges were dismissed because the abatement notices did not specify a date for action and the notices misstated the deadline for lodging an appeal.

How far the demands of an abatement notice may go

The remedy sought by the notice must be within the scope of s322, and reasonably relate to the grounds of the notice. A case law example is Amor v Gisborne District Council [1999] A145/99.

Discovery of defects in an abatement notice

The Court can award costs against the unsuccessful party in an appeal against an abatement notice. If the recipient appeals the abatement notice, the local authority should check the notice carefully to see if there are any defects and whether there are any other grounds for appeal.

We suggest that if there are defects or grounds for appeal, leave should be sought from the Court to cancel the notice on the basis that no costs are awarded against either party. Leave is reserved for the local authority to take further enforcement action, including issue of a new abatement notice or application for an enforcement order (this can be done by consent memorandum if the appellant agrees).

Deciding on a time frame is reasonable for an abatement notice

The only statutory constraint on time frame applies to notices issued for effects but where there is no breach (s322(1)(a)(ii)). In this case, the recipient has to be given at least seven days to comply. The time frame must always be reasonable. What is reasonable will depend on what is technically possible, together with consideration of the consequences of delay for the environment, weighed against any legal obligations under other legislation (such as the Residential Tenancies Act 1986), hardship or otherwise avoidable costs to the recipient caused by a stricter time frame. Aggravating factors may also be relevant: for example, a history of offending or non-cooperation with the local authority may justify a stricter approach.

Issuing an abatement notice when there are multiple parties

When a number of people are responsible for the activity, the notice should be issued to all parties who have been involved in causing the problem (eg, owners and occupiers, company directors, employees and contractors).

Issuing an abatement notice when the activity is permitted/approved

Some activities are permitted under a plan or by designation, or approved by resource consent, yet they are causing adverse effects not covered by the plan, designation or resource consent.

It is important to be able to accurately define the effects you want to remedy with your notice, and to have access to the reports and minutes behind the relevant consent, designation or plan decision. This is because the notice will fail on appeal, if the effects arising from the activity were expressly recognised at the time by the person who approved the plan, designation or rule, or notified the proposed plan, or granted the resource consent (s325(5)). However, even then the Environment Court may confirm the notice on appeal if considered so appropriate after having regard to the time that has elapsed and any change in circumstances since the approval, notification, or granting, as the case may be.

Drafting best practice solutions into an abatement notice

Sometimes you may want to set in place a specific solution, forcing a commitment to action that can then be monitored in detail. Generally speaking, it is not appropriate for a local authority to spend public money on designing and implementing solutions, when the duty to comply or avoid effects lies with the operator of an activity. However, an operator may be slow to cooperate or reluctant to employ experts for providing the solutions.

For some types of issues (eg, sediment control), local authorities may already have detailed design solutions that can readily be adapted to particular sites.

Common practice in local authorities is to draft an abatement notice that requires a specialist to design a solution for the operator to implement. The trouble is that specialists provide work of varying quality, and specialists ' recommendations are often constrained by what the client is willing to pay. What is needed is an interim step, when the local authority can vet the proposed solution.

Drafting an interim step into an abatement notice can be a challenge:
First, it raises a question of reasonableness: to what extent can the local authority demand alternative designs and a comparative analysis? To what extent is the demand 'necessary ' to ensure compliance and avoid, remedy or mitigate adverse effects in terms of s322(1)(b)?

Secondly, the local authority 's evaluation of what is submitted may take some time: how much leeway should it provide, when specifying the timeframe for implementation in the notice?

Thirdly, requiring implementation of a solution yet to be approved by the local authority might imply an obligation on the council to approve something: this obligation would restrict its discretion on how to enforce.

Careful drafting may overcome these challenges. A notice might only require implementation of an expert solution if approved by the local authority. In practice, the local authority would cancel the notice if it did not approve the proposal and issue a new one with an amended solution and timeframe. For more complex or higher-risk matters, it might be reasonable for the notice to set out a process requiring an expert solution, followed by an independent peer review reporting to the local authority but paid for by the operator.

An alternative approach would be to apply for an enforcement order, requiring the operator to investigate solutions and submit a report to the local authority as "something necessary … in order to" (in the way of an interim step to) ensure compliance or mitigate effects. The local authority could use the information to determine its next step. If the matter was urgent and the operator showed itself incapable of responding sufficiently and in good time, the local authority might seek specific solutions in applying for an interim enforcement order; the operator could then later apply to amend this under s320(5). If the local authority had to spend money on research and design, it might seek an order for costs (see Recovery of costs).

Acknowledgments

Quality planning would like to make the following acknowledgments.

Published October 2009.