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.

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

Enforcement action normally begins with an enforcement officer directly observing an act or omission that constitutes an offence. Alternatively, an enforcement officer may issue an infringement notice after receiving information that gives him or her reasonable cause to suspect an offence may be, or is about to be, committed. The information received may be in the form of a complaint, the results of environment monitoring, or the observations of other local authority officers.

2: Investigate and collect information

After receiving information that suggests an offence may have been committed, the officer will then need to collect information (evidence) to confirm whether or not this is the case. If not already on-site, the enforcement officer will normally need to visit the site. In obtaining the information the enforcement officer should consider:

  • What evidence is there to prove each element of the offence under consideration? (see the section on infringement offences above and the investigation of incidents guidance note).

  • What does the evidence or information collected suggest regarding the seriousness of the offence? (for example: What is the scale of the effects? Who or what is affected? Is the offence accidental or deliberate?).

  • Does the information or evidence collected connect a person or a party to the offence? Is there any information missing that would enable such a connection to be made?

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 (refer 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 whether the information received or collected:

  • is sufficiently to satisfy him or her, within the bounds of reason, that an offence has been committed

  • links the person who will be served with the notice, with the offence.

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 and options to avoid, remedy or mitigate any adverse effects.

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

penalty steps

Steps in issuing an infringement notice

1: Choice of proceedings: s343B of the RMA

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 1957 (i.e. the usual route of prosecution, relying on the s338 offences which encompass all infringement offences and more).

2: Service of notice

Section 343C(2) of the RMA 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 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 commenced in the District Court in accordance with s21 of the SPA (with all necessary modifications).

Section 21(1)(b) 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 (refer 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 this is considered to be 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 1957 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 reminder notice has not been filed in Court

  • the local authority has put in place the necessary management and accounting systems to allow the defendant to pay by instalments.

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 that 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.

Lodgement 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:

  • take no further action, or

  • within six months of the date of the offence, file a copy of the reminder notice with the District Court, with a record of the date and method of service of the infringement notice (or a copy of the infringement notice with a record of the date and method of service of the reminder notice) and the Court fee of $30.

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 . In this case, 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 an appeal arises; infringement notices not the subject of requests for hearings cannot give rise to an appeal ".

 

form and content

Form and content of an infringement notice

Section 343C(3) of the RMA provides that the notice shall be in the prescribed form (refer 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.

  1. the amount of the infringement fee specified for that offence
  2. the address of the place at which the infringement fee may be paid
  3. the time within which the infringement fee must be paid
  4. 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)
  5. a statement that the person served with the notice has a right to request a hearing
  6. a statement of what will happen if the person served with the notice neither pays the infringement fee nor requests a hearing
  7. 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:

  • set aside or modify the order

  • grant a rehearing

  • require another copy of the reminder notice or notice of hearing to be served on the defendant, or

  • make an order as to costs.

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 (refer 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 (refer 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 a resource management context in Wallace Corporation v Waikato Regional Council [2011] NZCA 119.

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 1957 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 (refer 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:

  • take no further action, or

  • begin proceedings by filing a notice of hearing in the District Court (in accordance with Form 10A in the First Schedule of the Summary Proceedings Regulations 1958). An Environment Court Judge will hear a substantive hearing if required. If the defendant has admitted liability, the notice should be filed together with the request from the defendant admitting liability (refer s21(8) of the SPA).

When a request for a hearing is not clear

The defendant may not make it clear that he or she requests a 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, in these circumstances the procedure is 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. This situation occurred in Adam vs Wellington City Council (1998) AP18/98 where the Court noted 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 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 '.

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:
  3. 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 above).

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.

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 (i.e. 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 on other legislation 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 decision on whether infringement fees are mandatory fines ( Interfreight Ltd v Police [1997] 3 NZLR 688 (CA) 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 of the SPA. As such, the option in the summary of rights in the infringement notice to make submissions as to the offence is to either 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 Moses v Auckland City Council [2010] CRI-2010-404-306 the High Court held that infringement fees were not mandatory and, once the prosecution had moved to the summary procedure, the Court could not look back at the infringement offence regime for the purpose of finding a penalty, let alone a mandatory one.

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 (refer s80 of the SPA). The Court can allow further time for payment and payment by instalments.

If the defendant has not paid the fine 21 days after the date the fine is imposed, and the Court has not made an order extending the time within which the defendant has to pay the fine or allowing payment by instalments, 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 taken.

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 (refer s87 of the SPA).