Abatement notices are served by enforcement officers on persons breaching a provision of the RMA, a rule in a RMA plan, any regulations, or a resource consent. Unlike enforcement orders they do not require an application to be made to the Environment Court first.
Section 4 (5) of the RMA sets out when an abatement notice can be served on 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 relating to abatement notices are 322-325B of the RMA .
A restrictive approach was taken to the powers to issue abatement notices in the early decisions under the RMA, but a more relaxed approach has been followed since 1993 (see for example Zdrahal v Wellington CC [1995][1993] W010/93 and Lendich v Waitakere City Council [1999] A077/99 ).
An appeal can be lodged by the recipient of an abatement notice. Appeals operate as a ‘stay’ on some types of abatement notices, which means that they need not be complied with until the matter is resolved. A hearing of an appeal to the Environment Court against an abatement notice (depending on the issues) can be both expensive and time-consuming. 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 relatively limited scope.
Scope of an abatement notice - s322 of the RMA
Section 322 of the RMA sets out the scope of an abatement notice, provides for the service of an abatement notice 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.
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 a person 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 the High Court has held that the meaning of s322(1) was plain and was intended to apply to continuing effects and continuing activities (see Zdrahal v Wellington City Council [1995] 1 NZLR 700; [1995] NZRMA 289 (HC) ).
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 provision 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. These notices, under section 322(1)(c) require 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 of the RMA (which relates to unreasonable noise) adopt the best practicable option to ensure 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 proposed plan, 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 would do so (unless allowed by resource consent, s10 or s20A of the RMA).
Notice requiring something to be done
Section 322(2)(b) - where any person is under a duty not to contravene a rule in a proposed plan, 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 proposed plan (unless allowed by resource consent, s10 or s20A of the RMA).
Onus of proof
The local authority has the onus of establishing the grounds to support its abatement notice. The courts have held that standard of proof is on the balance of probabilities. For example, 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 has held that balance of probabilities is the correct standard. However, if a person asserts that they are acting in compliance with existing use rights or a resource consent, then it is for them to prove this rather than the local authority to prove that the person was not acting under a resource consent. (Britten v Auckland Council [2011] NZEnvc 357). Section 322(4) of the RMA does not prescribe the manner in which an enforcement officer should go about determining whether there are reasonable grounds for issuing an abatement notice (see for example Black v Southland Regional Council [1994] C104/94 and Britten v Auckland Council [2011] NZEnvc 357). However, 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 any evidence that proves each element of the offence. For example in Christchurch City Council v Blackett [1993] CRN 3009007407 , the Court was convinced by the evidence that car repairs were being carried out on a rural site, but considered there was no evidence that proved the repairs were associated with a business. Such evidence was required to prove that the offender had not complied with an abatement notice to cease operating a car repair business on the site.
In Hanodi v Manukau City Council (a125/09) the Court was not prepared to confirm an abatement notice when the enforcement officer had failed to take the simple measurements required to determine whether a structure breached a yard requirement in the District Plan.
Effect of an abatement notice - s323 of the RMA
Section 323 of the RMA provides that:
- the recipient of the abatement notice must 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) to 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.
Once a noise source is impounded, an owner may apply to have it returned (section 336 RMA). The impounding authority must return the noise source unless it considers that doing so would lead to a resumption of noise emissions beyond a reasonable level. If not claimed within 6 months (or if no application is made to the Court within 6 months under section 325), the impounding authority can dispose of the noise source (section 336(5) RMA).
Content and form of an abatement notice - s324 of the RMA
Section 324 of the RMA sets out the contents of an abatement notice and provides that the notice shall be in the prescribed form in the Resource Management (Forms, Fees and Procedure) Regulations 2003, (refer Form 48 ).
The following information is essential:
- Location - The recipient must be able to identify the locality to which the abatement notice relates. The most obvious way to identify the property is by including its physical address, but it may also be necessary to include the legal description and/or a New Zealand Map Series reference. The appropriate 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 of the RMA
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 under the Resource Management (Forms, Fees and Procedure) Regulations 2003 (refer, Form 49 ). Section 336, via reference to section 325, provides for the same appeal right against a refusal to return a noise source. Notice must be lodged with the Court within 6 months of the date of seizure of the noise source.
The recipient of an abatement notice may apply for a stay (see Page v Wanganui District Council [2012] NZCA 324). An application for a stay must be in the prescribed form under the Resource Management (Forms, Fees and Procedure) Regulations 2003 (refer Form 50 ).
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 s17 RMA 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; and
- whether it is unreasonable for the person to comply pending the decision on the appeal; and
- whether to hear the applicant and/or the local authority before making the decision about the stay; and
- such other matters as the Judge thinks fit.
The Court has indicated 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. In such an application, the court will weigh the adverse effects on the environment against the adverse effects on the appellant of complying. See for example, Warren Fowler Ltd v Manukau City Council [1998] AO71/98 and Waimakariri District Council v Canterbury Regional Council [2001] C30/2001.
The Environment Court must not confirm an abatement notice in the circumstances specified in s325(5) of the RMA, in particular where the recipient is acting in accordance with a rule in a plan, resource consent, or designation.
Amendment and cancellation of notice - s325A of the RMA
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.
- 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.
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) of the RMA. Note that if the recipient has missed the deadline for appealing an abatement notice, this provision provides a fresh avenue for pursuing concerns about the notice in the Environment Court.
