Section 17 of the RMA provides that every person has a duty to avoid, remedy, or mitigate adverse effects on the environment. Section 17 is not enforceable in and of itself (refer s17(2)), but can provide a basis for seeking an enforcement order or issuing an abatement notice.
As outlined by the Court in Sayers v Western Bay of Plenty District Council [1992] AO98/92 , an enforcement order or abatement notice may require a person to cease, or prohibit a person commencing, anything that is or is likely to be: offensive, objectionable, dangerous or noxious enough to have an adverse effect on the environment. Alternatively, the order or abatement notice may require a person to do something that is necessary to avoid, remedy or mitigate adverse effects on the environment caused by, or on behalf of, that person.
Section 17(3), read together with s322, allows enforcement officers to enforce the s17 duty in a limited way. An abatement notice can require that an activity cease if it is having adverse effects and is noxious, dangerous, offensive, or objectionable s322(1)(a)(ii). Specific actions to cure the effects cannot be stipulated, unless a breach of a rule or consent also exists. An enforcement order provides a greater scope for action (for more information see the Mandatory Directives Guidance Note ).
Importantly, the duty under section 17 applies whether or not the activity is in accordance with a national environmental standard, a rule, a resource consent, a designation, s10, s10A, s10B or s20A.
In Donkin v Board of Trustees of Sunnybrae Normal School [1997] C044/97 , the Environment Court made a declaration that an existing school building contravened s17 because it was too close to the boundary of a neighbouring residential property. The Court stated that the Board of Trustees of the Sunnybrae Normal School and the Minister of Education had a duty to remedy or mitigate the adverse effects.
