Application for an interim enforcement order - s320 of the RMA
Interim enforcement orders allow for urgent action, and applications are usually dealt with by the Court 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 Judge.
An application for an interim enforcement order is made under s320 of the RMA. The provisions of s314-319 of the RMA 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 of the RMA.
Section 320(3) provides that before making an interim enforcement order, the Judge shall consider:
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what the effect of not making the order would be on the environment; and
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whether the applicant has given an appropriate undertaking as to damages; and
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whether the Judge should hear the applicant or any person against whom the interim order is sought; and
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other matters as the Judge thinks fit.
Guidance about when applications for interim enforcement orders may be appropriate was provided in Walden v Auckland City Council [1992] A03/92. In this case, 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 seek not so much to protect private rights, but to seek that the public law is observed."
As such, an undertaking to pay damages is generally relevant but not decisive in determining an application.
For example, in Manawatu-Wanganui Regional Council v Fugle [2011] NZEnvc 314 the Court determined that it is not necessary for the Council to provide an undertaking as to damages. The interim enforcement orders related to an apparent longstanding breach of conditions of resource consents having significant adverse effects on the environment. The Council sought to enforce compliance with the conditions as part of its functions pursuant to s30 RMA. In that respect, the Court considered that the Council is undertaking a public law function and need not necessarily be required to provide security for costs.
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 later date 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 of the RMA.
Amend or cancel an enforcement order - s321 of the RMA
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 in accordance with the Resource Management (Forms, Fees and Procedure) Regulations 2003 (refer Form 46 ).
Failure to comply with an enforcement order - s 315(2) of the RMA
If the respondent fails to comply with the enforcement order, any person may, with the consent of the Environment Court under s315(2) of the RMA:
- 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)
- sell or otherwise dispose of any structure or materials salvaged in complying with the order
- 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. 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.
Where an offence has been committed that involves a breach of a resource consent, the Court may also make an order that requires a consent authority to review a resource consent under s128(2) of the RMA. 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, the consent authority may cancel the consent and recover any costs associated with this review from the consent holder under s132(4) of the RMA.
The Crown can be served with an enforcement order and can be prosecuted by a local authority under s4(6) of the RMA. However, the Court may not sentence a Crown organisation to pay a fine in respect of an offence as s4(10) sets out that as s4(8) and 4(9) are subject to the Crown Organisations (Criminal Liability) Act 2002.
Contempt proceedings may be brought under the District Court Act 1947 for deliberate breach of a Court order.
A Judge of the Environment Court may evoke section 79(2) of the District Courts Act 1947 to enforce the orders he or she makes under the RMA. Councils should not ask the District Court to enforce such an order of the Environment Court because the District Court lacks the power to make such an order (Conway v Auckland Regional Council [2007] NZRMA 252).
