Abatement notices
Scenario 1: Work on a tree
Jenny Jones makes a number of complaints about her neighbour Sammy Smith. Mrs Jones tells the Council that Mr Smith is damaging a 10-metre-high oak tree on his property. The tree is a scheduled protected tree in the Council Operative Plan. Harry investigates and finds that there is no sign of any damage to the tree.
Harry speaks to Mr Smith, who tells Harry that he has not 'touched ' the tree and Mrs Jones is insane. Mrs Jones continues to complain and Harry inspects the property again and finds that there is no sign of damage. Mrs Jones asks Harry to issue an abatement notice.
Q1: What should Harry do?
A1: Harry cannot issue an abatement notice. Before Harry can issue an abatement notice he must have reasonable grounds under s322(4) of the RMA to believe that any of the circumstances in s322(1) or (2) exist. Harry has inspected the tree and there is no evidence of damage, and it is therefore not appropriate for Harry to issue an abatement notice.
Scenario 2: Offensive symbols in public view
The Council receives complaints about a swastika that has been painted on the side of a house and is clearly visible. The complainants say that the swastika is extremely offensive. The swastika is in breach of the rules on signs in the Council Operative Plan. Harry decides to issue an abatement notice.
Q1: Which subsection(s) of s322 of the RMA should Harry rely on?
A1: Subsection (1)(a)(i).
The facts in this scenario are taken from the Zdrahal v Wellington City Council ). In that case an abatement notice was issued under s322(1)(a)(ii), but the. Planning Tribunal queried whether the Council should have instead proceeded under s322(1)(a)(i). This was because the relevant transitional plan for managing signs was clear and would not have required a subjective assessment as to whether the swastika was or was not objectionable. The case highlights the importance of considering all the options available and pursuing the most straightforward of them.
Note : In this case, Zdrahal 's appeal failed and the abatement notice was upheld. The High Court held that the swastika was offensive and objectionable.
Scenario 3: Earthworks and change of circumstances through rainfall
Earthworks have been carried out at a property owned by Mr Smith and his neighbour, Mr White, has complained to the council about the earthworks. Harry investigates and discovers that Mr Smith is not in breach of the RMA, any regulations, a rule in a plan or a resource consent. However as a result of the earthworks Mr Smith has carried out on his property, earth may slide onto the property of Mr White. Harry issues an abatement notice to Mr Smith under s322(1)(a)(ii) of the RMA.
Mr Smith appeals the abatement notice.
Following a heavy rainfall, some earth then slides from Smith 's property onto the neighbouring property owned by Mr White.
Q1: What should Harry do?
A1: The abatement notice is issued under s322(1)(a)(ii) and therefore the appeal filed operates as a stay of the notice. The situation is now urgent.
Harry should investigate further with an engineer, talk to Mr Smith and ask him to take steps to stop further earth sliding onto his neighbour’s property. Harry should also speak to Mr Smith’s neighbour Mr White.
If Mr Smith refuses to take action, an application for an interim enforcement order should be filed. The application should be supported by an affidavit from Harry exhibiting photographs of Mr Smith’s property, and of the neighbouring property showing the adverse effect to date. The application should also be supported by an affidavit from the engineer.
An application should be filed simultaneously seeking leave from the Court to cancel the abatement notice without prejudice to the Council taking other enforcement action on the grounds that:
- Mr Smith has not complied
- an appeal has been filed and this stays the notice
- the circumstances have changed
- the situation is now urgent.
Water shortage directions
Scenario 1: Operation of a pump during period of water shortage direction
A water shortage direction is advertised by a regional council in the local newspaper. Council staff receive a complaint about Gary Reedy from his neighbour, Mrs Fair. Mrs Fair alleges that Mr Reedy has been operating a pump in the stream above her property during the period of the water shortage direction.
Council staff (Harry Helpful and Harriet Happy) immediately inspect the property and find a submersible pump in the stream on Mr Reedy’s property. The pump is operating at the time of the inspection. The submersible pump has been positioned in the stream to gain the most benefit from a large spring and is pumping water about 150 metres to a large dam upstream, which is the legal point from which Mr Reedy takes water.
Mr Helpful and Ms Happy speak to Mr Reedy and point out to him that he is in breach of the water shortage direction. Mr Reedy’s reply is: "I was not aware of the water shortage direction".
Mr Helpful informs Mr Reedy that the water shortage direction was advertised in the local newspaper. Mr Reedy tells Mr Helpful that he does receive the newspaper but he does not look at the public notices. In fact when he is very busy he often does not read the newspaper at all. When he does read the newspaper, he will only read the first couple of pages.
Q1: Does the Council have sufficient evidence to prosecute?
In this case the Council does not have sufficient evidence to prosecute. To succeed in a prosecution the Council has to prove that Mr Reedy intended to commit the offence. Mr Reedy claims that he did not see the advertisement in the newspaper.
