Scenarios
Enforcing plans and consents
Scenario 1: Spray drift and enforcement orders
Council receives a complaint of a spray-drift incident. Staff inspect immediately and collect evidence to establish:
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the applicator is Sea Helicopters Ltd and the application is an aerial application
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Sea Helicopters Ltd has breached a permitted activity rule in the proposed plan.
The concentration of pesticide applied exceeds the manufacturer's instructions and there are significant adverse effects of off-target drift. Plants on neighbouring properties have been damaged. Sea Helicopters informs council that s20A of the RMA applies, that it has been spraying pesticides for 20 years, and that council cannot take enforcement action because Sea Helicopters is not required to comply with the proposed plan until the plan is operative.
Q1: What can council do?
A1: Council can apply for an interim enforcement order or an enforcement order, or issue an abatement notice requiring Sea Helicopters to comply with the s17 duty.
Q2: In the above scenario, Sea Helicopters sprays pesticide for five months each year. Can council argue that s20A does not apply because the activity has been discontinued for a continuous period of more than six months?
A2: No. The Environment Court has noted that care is required in applying the six-month discontinuity test to seasonal activities like fruit picking. The Court has held that an absence of activity at a time of year when none would normally be carried on anyway, would not be evidence of the use having been discontinued (refer Wairoa Coolstores (1994) Ltd v Western Bay of Plenty District Council [1998] A16/98).
Scenario 2: Taking of water
The Transitional Regional Plan general authorisation 3 allows up to 15 cubic metres of water per day to be taken for reasonable domestic needs and the needs of animals. The proposed plan rule 3.3.4.8 allows 30 cubic metres per day of groundwater to be taken. Joe Bloggs takes 30 cubic metres of water per day. Mr Bloggs's neighbour complains that Bloggs is not complying with the general authorisation 3.
Q1: Is Mr Bloggs required to comply with general authorisation 3?
A1: Mr Bloggs is required to comply with the Transitional Regional Plan and the Proposed Plan. The Transitional Regional Plan is the more restrictive, and therefore Mr Bloggs can only take up to 15 cubic metres of water per day without resource consent.
Scenario 3: Water discharges and existing use rights
Transitional Regional Plan general authorisation number 14a provides that the discharge of clean stormwater to the ground is permitted subject to certain conditions. Under the Proposed Plan, discharge of stormwater onto or into land from a quarry is a controlled activity.
Q1: Is a quarry that was operating before notification of the Proposed Plan allowed to continue to discharge stormwater to land without a resource consent?
A1: Section 20A applies if the quarry meets the conditions in s20A(1)(a), (b) and (c), and the quarry can continue to discharge stormwater to land without a resource consent.
