The RMA Quality Planning Resource

Infringement notices

Auckland City Council v North Power Ltd [2004] CRN 3004510188 and CRN 3004510191

The defendant had pleaded guilty to two charges under s338(1)(a) for clearing indigenous vegetation without a resource consent in contravention of the district plan.

Approximately 72 informations (charges) had been laid by the informant council. Discussions between the parties resulted in an agreement whereby all but two of the charges were withdrawn and the defendant would elect summary jurisdiction and would plead guilty. The council then said it was not seeking any fine in addition to the enforcement order (which would cover remediation work and the recovery of some costs). Given all these factors the District Court said at paragraph 23:

Counsel must anticipate that the Court is likely to view this as an abuse of the process of the Court. Criminal proceedings should not be used as a means of achieving civil remedies. Reparation for harm done is certainly one of the purposes of sentencing under s7 of the Sentencing Act 2002, but it sits alongside purposes such as accountability, denunciation and deterrence - the last of these being particularly important in the RMA context as Machinery Movers makes clear.

The Court was also 'surprised ' there was no victim impact statement, which prosecutors are obliged to put before the Court (s17 Victim 's Rights Act 2002). The Court considered the difficulty in assessing the land owners' losses in a sentencing hearing was a 'special circumstance ' which would make imposing a sentence of reparation inappropriate.

The defendant was ordered to pay a fine, and an enforcement order was made to require remediation work to be done.

The upward trend in fines discussed in this case has continued subsequent to this decision.

Auckland Regional Council v Biogas [1993] CRN 2048024848/49; [1993], AP 199/93; [1994] CA 526/93; [1994] CRN 2048024848/49

The Auckland Regional Council prosecuted NZ Biogas Industries Ltd ('Biogas') for discharge of a contaminant into water and onto land. A large rubber container of decomposing waste from a potato-processing factory burst, and a substantial part of its contents escaped into a stream. Biogas was charged with contravention of s15(1)(a) for discharge of a contaminant into water and s15(1)(b) for discharge of a contaminant onto land.

The District Court and the High Court held that in the definition of 'discharge', the words 'allow to escape' implied awareness of the discharge and, where it was not established that the defendant was aware of the contaminants being discharged, the defendant did not 'allow' the contaminant to escape.

The Court of Appeal, in overturning the decision, held that it was difficult to see room for any mental element in the act of discharge; but that a person could not be said to discharge the contaminant unless there is a causal connection between the person and the discharge. In each case the causal link will be an issue of fact.

The Court of Appeal found:

… a person allows a contaminant to escape who fails to take the precautions that a reasonably prudent person in the position would take to prevent that escape ... failure to investigate and take appropriate preventive steps would amount to allowing an escape should it subsequently occur.

The Court held that the absence of engineering advice on the design, construction and testing of the rubber container constituted 'allowing to escape'.

The Court allowed the appeal by the Auckland Regional Council and remitted the matter to the District Court for further consideration of the charge, because the District Court had not dealt with the statutory defences relied upon.

URS New Zealand Ltd v District Court at Auckland [2009] NZRMA 529 (HC)

URS was involved in decommissioning a petrol station and had engaged a subcontractor to drill bore holes. In doing so, the subcontractor pierced the fuel line. Five months later another company (Fuelquip) purged air from fuel lines in the process of recommissioning the petrol station, which resulted in fuel being discharged into a stream in a reserve. Council charged URS and the subcontractor in relation to the discharge of contaminants in breach of s15 of the RMA.

The main argument advanced by URS and the subcontractor was that proof of the presence of control by a party over the contaminant and the site or system at the point where the discharge occurs was required in order to prove a breach of s15 of the RMA. A party which did not actively discharge the contaminant could not cause a discharge because the relevant operations or contaminants were not within its control.

The Court considered the Biogas decision and noted that Biogas recognises the distinction between the alternatives of positive acts or passive omissions in breach of s15. In the former or active category, the word ‘discharge’ embraces the concept of causing to discharge, thereby bringing into the net of liability a party whose acts or omissions are an operative or effective factor in the chain of causation leading to a physical discharge.

In the latter or passive category, the phrase ‘allows to escape’ within the meaning of ‘discharge’ allows a limited relaxation of the statutory principle of strict liability, by measuring liability against reasonable standards of care. If the plaintiffs’ proposition was correct, it would lead to anomalies, even unfairness, and undermine the purpose of strict liability provisions designed to impose criminal liability on those responsible for discharging contaminants.

The Court was concerned that the argument advanced by URS and the subcontractor could result in the party with the primary responsibility, and culpability, for the discharge escaping criminal sanction. Such an outcome would be contrary to public policy and would bring the process of justice into disrepute.

Down v R [2012] NZSC 21

In Down, the Supreme Court considered the interrelationship between the infringement offence and prosecution and the procedural requirements that councils are required to comply with when deciding to prosecute an offence that is also an infringement offence under the RMA.

Down involved an unsuccessful appeal by Down against the Court of Appeal decision upholding a conviction in relation to offences of wrongful discharge of contaminant onto land. In the District Court Down had argued that as the offences in issue were infringement offences and s21 Summary Proceedings Act 1957 (SPA) applied then under s21(1)(a) SPA, leave of District Court Judge or Registrar was necessary prior to laying charges.

The Council had not sought leave and the Crown now argued that there was no need to do so. The Supreme Court, in dismissing the appeal and holding that leave was not required considered that there are two procedures available for prosecution of discharge offences under s15 RMA. The first procedural option is by service of an infringement notice under s343C RMA, dealing with matter under Resource Management (Infringement Offences) Regulations 1999. The second is the procedure under s338(1)(a) RMA, by which an information is laid under s12 SPA.

The Court preferred an interpretation of s343C(4) of the RMA which recognised that the RMA has its own separate infringement notice regime that governs the issue, service and content of infringement notices in relation to RMA infringement offences. That enforcement procedure, expressed in part by reference to SPA, meant that the provisions of SPA are incorporated in s343C(4) RMA where applicable ‘with all necessary modifications’. The court held that infringement offences under RMA are not infringement offences under the SPA meaning that leave under s21(1) SPA was not required when undertaking the infringement notice procedure under RMA.

Auckland City Council v Turner [1995] CRN 5004043089-3126 and 3191-32280; [1995] M1410/95

The Auckland City Council laid 38 charges against each of the defendants, Mr and Mrs Turner, relating to alleged illegal earthworks, construction of a concrete pad and retaining wall, and removal of a pūriri tree and damage to other trees in the course of the works. The charges alleged contraventions of the Auckland City Council's Operative (Transitional) District Plan and its proposed district plan.

The defendants applied for orders staying or dismissing the charges on the ground that they could not be prosecuted for breach of both plans.

The Court held that the council could proceed to a hearing on prosecutions alleging contravention of rules of an operative and a proposed district plan in respect of the same act, that this would not amount to an abuse of process, and it would not be oppressive or vexatious:

The scheme of the Resource Management Act involves a territorial authority having both an operative district plan, and a proposed district plan intended to replace the former when submissions and appeals have been decided and any consequential amendments made. Unlike the earlier legislation which it repeals, the Resource Management Act gives effect to the rules contained in a proposed district plan. Those affected have to comply with them as well as with rules of an operative district plan. It is to be expected that rules in operative plans and proposed plans may apply to the same circumstances.

… Parliament has deliberately departed from the previous law, and provided that while an operative plan and a proposed plan exist in the same district, both have effect at law. A person who wishes to carry out an activity regulated by both has to comply with or obtain resource consent in respect of both. Failure to comply with or obtain resource consent in respect of both could amount to separate offences, even though they relate to the same act.

The Turners applied to the High Court for judicial review of Judge Sheppard 's decision. The High Court dismissed the application. The High Court made it clear that when it came to sentencing the position would be different. No defendant should be punished twice for the same conduct. At page 5 of the High Court decision, Fisher J stated:

(…) there is usually no point in entering more than one conviction for any given act and to do so exaggerates the appearance of culpability for those considering the record of convictions on some future occasion.

Davies v Ministry of Transport [1989] 3 NZLR 300

The Court of Appeal held that the appeal jurisdiction of s115 of the Summary Proceedings Act 1957 arises only when there has been a "determination by the District Court of any information or complaint", and this requires that an actual judicial decision has been made.

A fine recorded under s21(5) of the Summary Proceedings Act 1957 without any judicial intervention by the District Court is not a determination of an information by the District Court; it does not give rise to a right of appeal under s115 of the Summary Proceedings Act 1957. The Court held that the defendant does not have a right of appeal if an order is made under s21(5) of the Summary Proceedings Act 1957. Richardson J said:

Indeed, the s21 procedure was introduced to provide an automated system of dealing with the very large number of minor matters that had been going before the Court in the minor traffic offence jurisdiction under the former s21. If the person concerned fails to respond to the infringement notice and reminder notice, the informant Ministry's computer discs then generate, through the District Court computer system, the record required under s21(5) and the appropriate notice of fine. Nothing in that process can be characterised as a determination of an information by the District Court. What that expression contemplates is an actual judicial decision.

Van Kan v Auckland City Council [1992] AP98/92

An infringement notice was issued to Van Kan, who did not request a hearing and did not pay the infringement fee. Van Kan filed an appeal in the High Court. The High Court dismissed the appeal and held that there was nothing on which Van Kan could base an appeal because:

There has to be a 'determination' of a District Court before the right of appeal arises; infringement notices not the subject of requests for hearing cannot give rise to an appeal.

Barker J said:

I can only suggest to the appellant and those who find themselves in the same situation as he, that it is absolutely imperative for a citizen wishing to defend a charge which is the subject of an infringement notice, that notice of a desire to have a hearing is given within the time limit prescribed.

Barker J commented that there was the possibility open to Van Kan for a judicial review, but noted that there could be jurisdictional problems with an application for such a review.

The High Court also considered whether Van Kan could apply for a rehearing under s75 of the Summary Proceedings Act 1957. The Court held that s75 of the Summary Proceedings Act 1957 provides for a "rehearing after a defendant has been convicted on a hearing of any information or complaint".

The Court held that s78B of the Summary Proceedings Act 1957 gives limited power to correct irregularities in proceedings for infringement notices. A rehearing may only be ordered if the defendant did not receive a reminder notice or a copy of the notice of hearing, or if there had been some other irregularity in the procedure. The Court held that Van Kan had no grounds to apply for a rehearing.

Hall v Ministry of Transport [1991] 2 NZLR 53 (CA)

An infringement offence notice was issued to Hall for speeding. Hall did not pay the infringement fee. A reminder notice was issued to Hall.

Hall made a written request for a hearing. The Ministry of Transport (MOT) filed a notice of hearing. One of the defences raised by Hall was that the infringement notice was invalid because it did not indicate that Hall's rights to dispose of the matter by paying the fee continue until 28 days after service of a reminder notice.

The form did not comply with s42A(7)(g) of the Transport Act 1962, which requires infringement notices to contain a summary of the provisions of s21(10) of the Summary Proceedings Act 1957. The MOT had in fact used the form prescribed by the Transport (Infringement Offences Notices) Regulations 1987, but there was a mistake in the form.

Hall did not claim there had been any miscarriage of justice. He did not say the infringement notice misled him. He did not pay the infringement fee and exercised his right to request a hearing. Hall's defence that the infringement notice had an error in it was a defence on a technical ground.

The Court of Appeal held that the infringement notice had defects but, there being no miscarriage of justice, s204 of the Summary Proceedings Act 1957 precludes it or the proceeding from being held invalid. The Court of Appeal also held that s78B of the Summary Proceedings Act 1957 only applies if the defendant is deemed, on the filing of a reminder notice, to have been ordered to pay a fine and costs, or if the defendant has been so ordered on a hearing following a notice of hearing.

The Court held that s78B cannot be invoked before an order adverse to the defendant has been made or is deemed to have been made. The Court said that s78B:

… is interesting as revealing an appreciation by Parliament that irregularities could well occur in implementing the rather complicated infringement notice procedure. It does not purport to supersede s204, but gives a useful specific power, which a District Court Judge may exercise if the irregularity does not come to light until after an order has been made. If an irregularity is drawn to notice earlier, s204 is available and it would be absurd to insist on waiting until the s78B stage.

Adam v Wellington City Council [1998] AP18/98

Adam was issued with a notice for a parking infringement, and a reminder notice. Adam wrote to the council admitting liability and provided an explanation. The council filed a notice of hearing in Court and arranged for the notice of hearing to be served on Adam. This meant that a hearing took place in open Court rather than being dealt with by Justices of the Peace in chambers. As the hearing took place in open Court, $95 (now $100) of Court costs was imposed rather than the $25 (now $30) that would have been imposed in chambers.

The council had not followed the correct procedure. Adam appealed. The High Court held that the notice of hearing should not have been served on Adam. The Judge said:

In my view it is entirely undesirable that a stated procedure should be varied unilaterally by the informant even if the byproduct of it gives an opportunity to be heard. The Act clearly in these circumstances, contemplates no opportunity of being heard other than by way of submission. To create an alternative way of proceeding is confusing and in my view unlawful, and it should not have been done.

Police v Ellis [1997] CRN 6085009178

The defendant, Mrs Ellis, was issued with an infringement notice about 41 days after the date of the alleged offence. The defendant's husband, who is a barrister, wrote to the Police about one week after the issue of the reminder notice and asked the Police to withdraw the infringement notice.

Mr Ellis told the Police that the 41-day delay between the date of the offence and receipt of the notice by Mrs Ellis was too long and potentially prejudicial to her defence because: "It is hard to recall if you were speeding and if you have a defence that long ago, eg, you accelerated out of the way of a potential accident, Police or other emergency vehicle".

Mr Ellis referred the Police to decisions where the Court has dismissed infringement notice proceedings because of delays.

The Police replied with a letter which the Judge described as "a knee-jerk standard response generated by computer, rather than a considered reply dealing with the quite proper concerns raised by Mr Ellis". The letter from the Police stated:

Please be assured that your letter has been read in full and has been given due consideration. It has been decided that the notice should not be waived in this instance.

A notice of hearing was issued by the Police and the proceedings were adjourned, once by consent and on the second occasion despite Mr Ellis's objection. Mr Ellis provided the prosecution with lengthy legal submissions. The Judge said:

It has indeed been something of a revelation to consider the body of jurisprudence which has built up in recent years on the topic of speeding offences.

The Police withdrew the charge because they discovered an error in the reminder notice: there was no identifying name or officer identification number on the notice.

Mr Ellis applied for costs of $5,000 plus $146 disbursements against the Police. Section 5(1) of the Costs in Criminal Cases Act 1967 provides that where an information is withdrawn, the Court may order that the defendant be paid such sum as it thinks just and reasonable towards the cost of his/her defence.

There is no presumption for or against granting of costs. The Judge considered the circumstances in s 5(2) to which the Court shall have regard in deciding whether to grant costs and in what amount. The Judge found that a costs award was justified.

Section 13(3) of the Costs in Criminal Cases Act allows the Court to exceed the maximum scale of costs if it is satisfied, having regard to the special difficulty, complexity or importance of the case, payment of greater costs is desirable. The Judge considered that the case was neither difficult nor complex, nor was it of any special importance as far as criminal law is concerned. The Judge ordered the Police to pay costs according to the scale of fees payable under the Costs in Criminal Cases Regulations 1987 of $678 plus disbursements of $146.

Interfreight Ltd v Police [1997] 3 NZLR 688 (CA)

The Court of Appeal held that overloading infringement fees set out in Part III of the Second Schedule of the Transport Act 1962 are mandatory for the following reasons.

a. Section 69B(2)(b) of the Transport Act states what the penalty for an overloading offence shall be. Prima facie it lays down a mandatory penalty. Section 69B(2)(b) provides: "The penalty for the offence shall be the appropriate overloading infringement fee or the total of those fees calculated in accordance with Part III of the Second Schedule of this Act."

b. The reminder notice includes the note:

"If the offence alleged against you is an OVERLOADING OFFENCE, you should not make written submissions as to penalty as the penalty for the offence is fixed and may not be reduced by the Court".

The Court of Appeal rejected the argument that the defendant’s right to request a hearing is futile if the defendant cannot challenge the penalty. The Court of Appeal held s21 of the Summary Proceedings Act 1957 is a general provision.

The specific provision in s69B(2)(b) overrides the general provision in s21. The Court held that the option in the summary of rights in the infringement notice to make submissions as to the offence is to allow the defendant an opportunity to challenge the calculation of the infringement fee or to contend that the overloading was not to the extent alleged.

Moses v Auckland City Council [2010] CRI-2010-404-306 (High Court, Auckland)

This case was a successful appeal by Mr Moses against a sentence of payment of fine and costs for contravening a parking infringement notice. The infringement occurred after closing hours of the Auckland Museum when he was attending a late function there. He was unaware that parking restrictions operated after Museum closing hours. A Council parking officer found the vehicle parked in the restricted zone at 10.14 pm and issued an infringement notice.

The High Court considered that Interfreight Limited v Police clearly drew a distinction between infringement fees and penalties and held that an infringement fee cannot constitute a mandatory penalty. The Court held that once the prosecution process has moved into the summary procedure (as it had here) the Court cannot look back to the infringement offence regime for the purpose of finding a penalty, let alone a mandatory one.

The District Court had apparently treated the imposition of a fine as an automatic consequence of conviction, with the quantum of the fine determined by the infringement fee stipulated on the infringement notice. The appellant was not someone who had chosen to blatantly ignore parking regulations as he had a lawful and proper interest in being at the Museum at the time and a matter of mischance had resulted in him parking beyond 10 pm. The Court considered that the circumstances of this case were sufficiently unique that the finding that Mr Moses had infringed a parking restriction should not lead to the imposition of any penalty.

In failing to turn its mind to an appropriate fine, if any, the District Court had failed to consider how it should exercise its discretion under s21(9) Summary Proceedings Act 1957.

Prosecution

R v Conway [2008] CRI-2008-004-19495 (No 2)

The continuing nature of an offence can be relevant to the Court’s consideration of whether a term of imprisonment is an appropriate sentence. The District Court imposed a six and a half month term of imprisonment in light of the serious, continuing, and deliberate contraventions of previous enforcement orders. The defendant’s previous convictions and imprisonment for similar offences was an aggravating factor requiring an “uplift” in the term to reflect the previous offending. Despite the defendant’s state of health, home detention was denied as not meeting the purposes of sentencing.

Waikato Regional Council v Ross (Des) Britten Ltd [2009] CRI-2009-024-572

The informant alleged that over a fifteen month period between February 2008 and May 2009 the defendants (Mr Britten and the company) unlawfully buried thousands of tyres on a property and that such burial required a resource consent for which there was none.

There was a question as to whether the offences were continuing, one-off or whether the charges were representative. The defendants argued that the informations were laid out of time and were therefore a nullity.

The Summary Proceedings Act 1957 (SPA) commences the six month period for laying the information from the time when "the matter of the information arose," whereas the RMA fixes the time from when the "alleged contravention first became known or should have become known”.

The informations in this case were laid by the informant in June 2009. The defendants contended that the informant had constructive knowledge of offending on 8 July 2008 when an officer of the District Council contacted the informant with information regarding tyres being stockpiled on the property. If this was accepted the consequence would have been that the latest the informations could have been laid was January 2009.

The Court commented that it is important to note that s338(4) is not triggered by the contravention itself but by the identification of it, so offending more than 6 months old may still be prosecuted. Any other interpretation would mean that historic discharges that were undiscovered could not be prosecuted after they are 6 months old. The Court considered that there was no logical reason why continuing discharges should be treated any differently from single discharges.

The Court considered Northland Regional Council v Lowe Walker Dargaville Limited and considered that Lowe Walker is limited to cases where the contravention is identified, but not actioned, and is continuing. Lowe Walker is not authority for the proposition that once identified, a continuing contravention is only actionable for the 6 months preceding such identification, even if it has continued for a longer period. The Court was satisfied that the informations were laid within time.

Auckland Regional Council v Horticultural Processors Ltd [1993] CRN 2090016530

Charges were laid for discharge of a large quantity of kiwifruit waste against several parties including: HPL, who operated a kiwifruit processing plant; Mr Smith, an independent cartage contractor who entered into an agreement on HPL's behalf with Mr Holst; Mr Holst, who agreed to the dumping of kiwifruit slurry into a gully on his farm; and Mr McCann, who subcontracted to transport the slurry.

Judge Kenderdine, because of the wording of the information, dismissed the charge against HPL because the council had not established beyond reasonable doubt a link between HPL and Mr Smith as agent or employee, at page 10 of the decision:

If the information sheet had not added 'particulars' but relied simply on a charge pursuant to s15(1)(b) simpliciter [unconditionally or without qualification] or s15(1)(b) and s340 in the alternative, then I would have no hesitation in convicting the company on a charge made pursuant to s15(1)(b). In this case however, the informant qualified the actions of the company by assuming it was carried out by Mr Smith acting as the company's employee or agent in the discharge of the contaminant.

The Judge indicated that, if during the hearing the difficulty of the wording of the charge against HPL had been apparent, the information could have been amended.

Hutt City Council v Thomson [1994] CRN 3032012451

The Hutt City Council laid an information against Mr Thomson for discharge of waste material including asbestos onto land in contravention of a rule in the Council's transitional district plan. The information alleged a breach of s15(2)(a). At the hearing, the council applied to amend the information to allege a breach of s9(1). Section 15(2)(a) of the RMA refers to a breach of a regional plan. The Hutt City Council cannot lay a charge under s15(2) because it is not a Regional Council. Judge Skelton refused the application to amend the information:

... especially after this length of time, I do not think this Court should encourage local authorities to commence proceedings in a way that really ought to have been seen as being defective from the start. A simple reading of section 15 of the Resource Management Act 1991 makes it quite clear that the informant in this case, could not have sustained a claim that there had been a breach of that section.

Judge Skelton also took into account that the offence was alleged to have occurred more than 12 months before and the information was withdrawn by leave.

Wellington City Council v Shell Oil and Cudby [1993] CRN 2032012948/51

In this case, a successful defence was based on s340. Shell established that it had taken all reasonable steps to prevent an offence and could not have known that the other defendant, Cudby Motors, had deactivated all of the safety measures designed to warn of a leak of petrol. Shell, when faced with a spill of some magnitude, acted immediately to remedy the situation.

Shell was acquitted of the charge and Cudby Motors was convicted.

Northland Regional Council v Tranz Rail Ltd [1996] CRN 6088003518, 6088003533-3534

The Northland Regional Council prosecuted Tranz Rail Ltd for discharge of urea formaldehyde:

i. to land in circumstances resulting in the discharge reaching a tributary of a stream

ii. vapour to air in consequence of the discharge to ground

iii. from trade premises onto land.

About 14-15 tonnes of urea formaldehyde resin glue spilt out of a butanol bladder bag on the back of a truck trailer at the Ōtiria Tranz Rail rail yard. Tranz Rail argued that a causal link was not adequately established between Tranz Rail and the spillage: the council had failed to prove beyond reasonable doubt the discharge resulted from operations that Tranz Rail was in a position to control.

Tranz Rail also argued that it did not allow the urea formaldehyde to escape, in that - even if it was held that Tranz Rail was aware of the facts from which a reasonable person would conclude a spill of urea formaldehyde could occur - the evidence did not establish that Tranz Rail failed to take precautions a reasonably prudent person would take to prevent the spill.

Tranz Rail had an arrangement with Juken Nissho Ltd to deliver formaldehyde resin glue from Tauranga or New Plymouth to the Juken Nissho mill at Awanui. Tranz Rail employed Kaitāia Transport Ltd as a subcontractor to undertake the road transport phase from Ōtiria to Awanui. Kaitāia Transport had an arrangement with Juken Nissho to use bladder bags as containers for the glue. The glue is transferred at the Ōtiria rail yard via hoses connected to a pump from the rail tankers to the bladders placed on the flat decks of Kaitāia Transport's trucks and trailers.

About three months before the discharge, the council had expressed concern to Tranz Rail about a possible mishap in relation to the urea formaldehyde transportation.

The Court found, as a result, Tranz Rail was well aware of the need to take steps to guard against the spillage occurring through the urea formaldehyde transfer operations from the bulk rail tankers to the bladder bags. Tranz Rail issued instructions to its staff at Ōtiria, which included an instruction that a Tranz Rail employee must be in attendance at all times.

On the date of the incident, the urea formaldehyde transfer operations were not properly supervised. The bladder bag leaked and then burst. The Court found that Tranz Rail knew there was a risk of spillage, but had not developed adequate steps and measures to ensure its urea formaldehyde transfer operations, which it was in a position to control, were in fact properly controlled.

Tranz Rail was convicted and fined.

R. v Lorenzen [2003] T031951

The defendant was charged with altering native and exotic vegetation in contravention of the District Plan and without a resource consent. The charges were representative, and in half of them he was charged in his own right and in the other half he was charged with permitting such offences.

The defendant applied to be discharged under s347 of the Crimes Act 1961, on the basis that it was an independent contractor who altered the land. The contractor was employed by a company who owned the land. Mr Lorenzen was the sole director and shareholder of that company. The contractor could not be found and the company was never charged. [In the ruling of 4 September 2003 it was stated that the company was never charged and the Judge proceeded on that basis. However in the sentencing decision of 19 December 2003, council advised that charges had been laid but withdrawn after the company went into liquidation.]

The defendant argued that, as a director of the company, he could only be charged pursuant to s340(3) Resource Management Act 1991 and that liability only arises if a company is convicted.

The Court found there was ample evidence to suggest Mr Lorenzen was in control and organising or permitting such things to happen on the land. The Court concluded at paragraph 26:

In summary the Crown here does not need to rely upon ownership of the land. It does not need to charge the company to be able to proceed against this defendant. His liability could arise either directly through s338(1) as the person contravening the relevant provision, or permitting its contravention, or alternatively his liability could arise as a party under s66 of the Crimes Act. There is sufficient evidence referred to in the depositions to show his personal involvement in the control of what was happening on this land and in my view a reasonable jury, properly instructed on the law, could well come to the conclusion that he is guilty of the offences charged.

Auckland Regional Council v AFFCO Allied Products Ltd [2000] CRN 9048006616-9

AFFCO pleaded not guilty to four offences of discharging of trade waste effluent from a hide-processing plant and fellmongery onto land (a stormwater system) in circumstances where it entered a tributary of the Puhinui Creek estuary.

AFFCO had installed a number of systems to prevent unauthorised discharge of trade waste from its plant. This included 'first flush systems ' (by which an initial quantity of water was directed to the trade waste sewer as a precautionary measure) from the stormwater drains. A problem occurred when a contractor cleaning out cesspits overloaded or blocked the valve diverting stormwater to trade waste, resulting in the discharge. The contractor had been discharging into the wrong manhole. The council did not lay charges against the contractor.

AFFCO was convicted on the charge of contravention of s15(1)(b). Judge Whiting held:

AFFCO was in control of the site and in a position to control the activities of its contractor. To the extent that it could and should have controlled the activity at the point where the pollution occurred, it is responsible for the pollution. The defendant company actively undertook the operations conducted at its Wiri Plant including the responsibility for the collection and disposal of waste material on site. It cannot abdicate its responsibilities simply by employing an agent to undertake that work on its behalf. It was in a position to exercise continued control of that activity and to prevent the pollution from occurring but failed to do so.

A charge had not been laid under s340(1)(a). However, Judge Whiting held that the evidence clearly established the contractor was acting as an agent of AFFCO and therefore s340(1)(a) applied. The Judge considered whether AFFCO could establish a defence under s340(2) and held that it could not:

… the management of AFFCO, on any reasonable objective standard, should have known that the offence was likely to be committed. I am also satisfied on the evidence that in any event AFFCO failed to take reasonable steps to prevent the commission of the offence.

Auckland Regional Council v URS New Zealand Ltd (No 2) [2008] CRI-2008-004-13603

In this case the Court considered the statutory defence to strict liability created by s341(2)(b)(ii) which provides that the defence is available if “the effects of the action or event were adequately mitigated or remedied by the defendant after it occurred”.

The Court considered Canterbury Regional Council v Newman (CA 182/00, 5 July 2001 (which is a case under s340 not 341 but by analogy was of assistance). Section 340 deals with the liability of a party for the acts of an agent, including contractors, and provides a statutory defence to such vicarious liability. That defence involves taking “reasonable steps to remedy” the effects of the discharge, whereas s341 creates strict liability offence has a statutory defence, which requires “adequately mitigating or remedying” the effects.

The Court commented that the result of Newman was that if the remedial work is not within the power or control of the defendant at the time the damage is done, or the escape or discharge occurs, and the defendant can do nothing without the consent of other parties, then a defendant “who wishes to preserve a position under s340(2)(c) can formally offer to carry out the remedial work needed, or if that is not accepted, to pay the actual and reasonable costs of the injured party or council doing so”. It is open to a defendant who is not in control at the time of the discharge to make an appropriate offer, prior to the laying of the information.

Fugle v Cowie [1998] 1 NZLR 104

The High Court considered the defence of necessity under s341(2)(a).

The Manawatu - Wanganui Regional Council prosecuted Mr Fugle and an employee, Mr Hitchman, for excavation and deposition of material within the bed of a stream in breach of s13(1)(b) and s13(1)(d). The defendants were convicted and fined.

The defendants appealed against the conviction and fine. The appeals were dismissed. The High Court held that the three requirements in s341(2)(a) should not be considered in isolation and that the considerations relevant to each can overlap. The three requirements are:

• The action or event to which the prosecution relates was necessary for the purposes of saving or protecting life or health, or preventing serious damage to property, or avoiding an actual or likely adverse effect on the environment.

• The conduct of the defendant was reasonable in the circumstances.

• The effects of the action or event were adequately mitigated or remedied by the defendant after they occurred.

The High Court held the following:

• In determining whether an action or event is necessary, it is not sufficient if the action or event is merely desirable, useful or even advisable. It has to be a matter of necessity, often construed as reasonable necessity. The test is an objective test and does not depend upon the defendant's belief.

• Immediacy or urgency has to be proved, and it will generally not be reasonably necessary to carry out work without a prior resource consent when sufficient time is available to obtain one.

• The work necessary in the physical sense has to be such that it does not cause unacceptable damage.

• The standard of reasonable conduct is objective, given the facts then known and using common sense. The danger of hindsight must be avoided.

• There is a further overlap between reasonable conduct and mitigation. Conduct can more readily be regarded as reasonable when immediate adverse effects can be, and have been, remedied. Where damage is irreparable, one should pause long before acting. Where resulting damage can be repaired in whole or in part, it is harder to describe action as reasonable when that damage is left unrepaired.

Auckland Regional Council v Bitumix Ltd [1993] CRN 304809825/93

In Bitumix, concerning a discharge of bitumen and water after failure in a valve at the bitumen works, the defendant relied on the defence in s341(2)(b), claiming that the failure in the valve could not reasonably have been foreseen given that it had been replaced within the last 12 months and that it was hidden behind a door.

This was not accepted by Judge Willy, who regarded the discharge to ground as the offence - not the leak from the valve:

As I have previously indicated that discharge was plain for all to see and continued for some time to the knowledge of at least some of the defendant 's servants, and without anybody taking any steps to mitigate or remedy it … it is the defendant 's obligation, if it wishes to avail itself of the statutory defence to prove on the balance of probabilities that the flowing of the contaminant over its land and into the stormwater system was an action or event which it could not reasonably have foreseen or provided against.

Manawatu-Wanganui Regional Council v Wakapua Farms Ltd [2012] CRI-2011-031-643, 22

In this case the Court considered that the overflow of an unmonitored effluent pond was not beyond the control of the defendants as it was not necessary for there to be proof of knowledge of the actual discharge or the actual overflow.

The Court emphasised that an event beyond a defendant's control does not need to be as extreme as a disaster, or a mechanical failure, or sabotage or something of that kind. However, in this case the overflowing of the ponds occurred because the ponds were not monitored and the levels were not kept within operable limits.

A defendant is required to prove on the balance of probabilities that the event could not reasonably have been foreseen or been provided against. The Court considered that, in this case, nothing could have been more reasonably foreseeable than if this relatively unsophisticated system was not well monitored and not well managed, it would fail and overflows would occur.

The discharge could reasonably have been provided against by having clear and simple processes in place to monitor it and manage it. There were none at all.

Canterbury Regional Council v Steelbro New Zealand Ltd [2006] CRN05009503624,

In this case the District Court held that the defendant company could not show that a diesel spill was unforeseeable, despite the spill being caused by a third party’s act of sabotage.

On the night in question an unknown party entered the site and stole diesel, leaving the pump still operating. The defendant claimed to have performed immediate and adequate cleanup operation following the discovery of the spill.

However, Steelbro accepted that the pump could be switched off and that, if this occurred, the system would be incapable of delivering diesel. Steelbro also accepted that the company had in the past padlocked the nozzle but that for some unexplained reason this had not occurred on the night in question.

Further, the fact that the company had already installed an auto cut-off switch could only be a recognition by the company that there could be situations when the pump might continue to operate when it should not have, and that the pump, if placed into the permanent on position using the lever, could have been left switched on and continued pumping.

The Court held that the defendant failed to take precautions a reasonably prudent person would take to prevent the escape of the diesel.

Auckland City Council v Pendergrast [2002] CRN 1004034048-52

The defendants did not cite evidence in defence of the charges at the hearing in December 2001. Later, in May 2002, the defendants requested a discharge without conviction and wanted to call evidence to support this. The Judge was prepared to allow evidence to be called, but as a matter of fairness to the prosecution this would require an adjournment. The Judge was not prepared to allow submissions to be made which contained disputed facts not supported by the evidence.

R v Conway [2008] CRI-2006-092-1891

In R v Conway is an example of a case in which an application for adjournment and leave to raise a defence under s341 was granted.

The Court was willing to grant the application because of changes in counsel for the defendants and the fact that current counsel were not acting during crucial periods of trial preparation. Importantly, the offences were strict liability offences which could result in imprisonment and the Court considered that it should be slow to prevent an accused from relying on a statutory defence.

In granting leave under s341(3), the Court ordered full particulars of the defence and the facts relied upon, as well as affidavits containing all evidence to be called by the defendant to be provided to the Crown in advance of the trial.

Ross McKinnon Smith v Daniel Thomas Spencer Riddiford [1996] CRN5035005704-6

This case involved the prosecution of Mr Riddiford, the defendant, on charges relating to an alleged unlawful excavation on Te Awaiti Station, South Wairarapa, on unknown dates between 1 December 1994 and 1 May 1995. He was charged with using land contrary to s9(1) (as it then was)of the RMA and with permitting the land to be used contrary to the same section. Existing ground contours were altered by way of excavation of more than 1000 cubic metres (being an activity which was not expressly allowed by a resource consent and which was not an existing use).

The defendant stated that he wished to avoid the actual likely adverse effects on the environment on the station of grazing on low-fertility hill soils which should, as appropriate, be retired, afforested or top-dressed and fenced. Cash was required to achieve these objectives (to avoid degradation of steep hill country). Te Awaiti Station comprises some 6,500 hectares, but according to Mr Riddiford only 200 hectares of coastal strip and 800 hectares of river country are really productive. He proposed to generate more income by developing the excavation into a seawater aquaculture pond. By May 1995 the excavation had grown to some 8000 cubic metres. The prosecution was commenced after an interim enforcement order had been made. Eventually land use consent was obtained in November 1995.

The Court was satisfied that the actions of Mr Riddiford were deliberate and that the purpose of the work was to develop an aquaculture business. The question for the Court became whether the defence provided by s341(2)(a)(i) could be established on the balance of probabilities. The three key elements of that defence are:

(1) that the action or event with which the defendant is charged was necessary for the purpose of avoiding an actual or likely adverse effect on the environment:

• The action here was the excavating.

• The kind of adverse effect that Mr Riddiford claimed he was seeking to avoid was unlikely to be contemplated by s341(2)(a). However, even if there might be circumstances where it could be so, this case was not one of them. In essence Mr Riddiford had claimed that because of human intervention (pastoral farming), substantial parts of his station had lost its fertility and he could not afford to replace this by topdressing; and this adverse effect on the environment was now necessary to avoid by the creation of an unlawful excavation. This did not give rise to a defence in terms of subclause (a). The adverse effect claimed had been ongoing for some years, and it had been caused by Mr Riddiford's own farming practices. There was no urgency from a physical point of view requiring its avoidance.

• In relation to 'adverse effects', counsel for the informant had submitted that the words in s341(2)(a)(i) should be read ejusdem generis with the earlier words in the subclause so that the actual or likely adverse effect on the environment should be given the same importance and urgency as protecting life or health, or preventing serious damage to property." Counsel for the defendant submitted that there is no element of importance or urgency about the words upon which the defendant was relying, and submitted that the Court should contrast those words with the defence provided in subclause (b) where natural disasters, mechanical failures, or sabotage are mentioned. In response the Court stated that "the defences provided for in that subclause involve a lack of control on the part of a defendant, whereas the defences provided for in subclause (a) have nothing to do with a lack of control."

(2) that the conduct of the defendant was reasonable in the circumstances:

• The Court was not convinced on the balance of probabilities that there was good reason for proceeding with the excavation beyond the permitted extent of 1000 cubic metres. Despite the fact that there were some delays, the adverse effect that the defendant was seeking to avoid did not justify taking the law into his own hands, proceeding without waiting for his proposed land use to be properly and publicly scrutinised as the Act requires. In the view of the Court the conduct of the defendant was 'thoroughly unreasonable.'

(3) that the effect of the action or event was adequately mitigated or remedied by the defendant after it occurred:

• The Court found that there was little evidence either way. It did not, however, need to decide the issue as the above two matters meant that the defence failed.

Nelson City Council v Dalpeko Holdings Limited [2012] CRI-2012-042-537

This case considered the implications of the maximum penalty having increased from $200,000 to $300,000 for an individual from 1 October 2009, and a new s339(1)(b) that increases liability on conviction to $600,000 for persons other than natural persons.

The Court acknowledged that some uplift from previous starting levels was appropriate, but did not consider this required an increase by a factor of three for companies.

Waikato Regional Council v Chick (2007) 14 ELRNZ 291 (DC)

In considering the starting points for penalties for dairy effluent discharge offences, the Court classified offending into three categories in order to provide guidance on appropriate starting points. The categories are, however, intended to be flexible guidelines and not intended to constrain the imposition of a penalty on a case-by-case basis:

  • Level 1 offences are the least serious. These offences are unintentional one-off incidents occurring as a result of system failure and attract fines between $0 and $15,000.
  • Level 2 offences are moderately serious. These offences reflect unintentional but careless discharges usually of a recurring nature over a period of time, incidents arising from the malfunction of different parts of the system. Level 2 offences attract fines ranging from $15,000 to $30,000.
  • Level 3 offences are more than moderately serious. These offences involve offending which is deliberate or is a result of a real want of care. It is often associated with large plural discharges over time or a large one-off event which demonstrates a disregard for effects on the environment.

Auckland City Council v B & C Shaw Ltd and George Bernard Shaw [2006] CRN 2004502435, 5003402436

Shaw and his company owned a residential property in Onehunga, bought as a development site for town houses. A significant feature of the site was a large Pōhutukawa tree, scheduled in the district plan for its botanical, visual and amenity values. The tree was about 100 years old, had a crown spread of 14 metres and stood about 10 metres high. In January 2005, after applying for consent but not obtaining it, Mr Shaw engaged associates to fell the tree to make the site easier to sell or develop.

Mr Shaw had convictions on four charges for similar offences at two other properties. Judge Bollard had warned him at the time that any further offences would not be treated lightly.

Shaw initiated a meeting to talk about an apology and reparations. At the defendant 's first appearance, the Court requested that any negotiations be formally facilitated, suggesting that a form of public meeting facilitated by a mediator experienced in RMA matters would be appropriate given the nature of the offending. The outcomes the community wanted were identified.

A second meeting involved the community board, Tree Council, immediate neighbours, and council officers. The purpose of the meeting was to negotiate outcomes in detail. These included: transplanting a new pōhutukawa as large as possible to the site, but also to a position where it could not be blocked out by development; paying for an arborist to maintain the tree for five years; binding subsequent owners to the agreement by way of enforcement order; and Mr Shaw contributing $20,000 to the community board for tree planting in which he would take part.

These matters and the outcomes of the meetings were reported to the Court by the mediator. At sentencing, the Court gave Shaw credit for fronting up as he did, but acknowledged that his apology could be seen as being 'crocodile tears '. The starting point for Shaw in terms of penalty was imprisonment but ultimately, Judge McElrea considered that a sentence that incorporated the community outcomes together with an $80,000 fine was sufficient for the purposes of deterrence and denunciation.

Costs

Auckland Regional Council v Haines House Removals Ltd [2000] CRN 9044013674-5

Haines House Removals pleaded guilty to contravention of subsections 12(1)(c) and (e) of the RMA. Haines had cleared a path across a reef on the foreshore adjacent to a property in Milford, to facilitate the removal of a house by barge for transportation to Northland.

The costs sought by the council included an order of costs above-scale in terms of s13(3) of the Costs in Criminal Cases Act 1967 on the grounds that the case was of special importance because of the severity and calculated nature of the unlawful act.

Environment Judge Whiting accepted that the case was of some importance but not of special importance, and that there was no jurisdiction to make an award greater than the scale allowed in the Costs in Criminal Cases Regulations.

The council also sought costs of approximately $7,000 for staff time under s314(1)(d). Judge Whiting determined, on the basis of the High Court decision in Interclean , that he had no jurisdiction to award costs for expenses incurred by a local authority in respect of its officers engaged in preparing for a prosecution.

Judge Whiting, however, took into account the costs of prosecution in assessing the amount of the fine, and noted that this was the principle that caused Justice Randerson to remit Interclean back to the District Court. The reason for taking account of any reparation paid or costs imposed in setting the fine, is to ensure that both fines and costs imposed add up to what globally is an appropriate penalty in total. The Court is therefore required to assess what is an appropriate penalty in total and then have regard to any award made by way of costs before imposing a fine. It is not a strict mathematical exercise.

Burns v Bay of Plenty Regional Council [2010] NZRMA 45

Mr Burns appealed the sentences imposed in relation to charges of reclaiming an area of foreshore seabed outside a property owned by his sister and her family at Matakana Island.

The High Court approved the sentencing principles enunciated in Haines House Removals with Lang J stating:

“I respectfully agree with these statements of principle. In particular, I consider that it is important for a sentencing Court to reach a decision regarding the appropriate global penalty before taking into account mitigating factors. Once those are taken into account it will often be appropriate to apportion the end penalty between a fine and an award of costs. Any other approach runs the risk of imposing an end penalty that is greater than that which the circumstances of the offending would justify. Some of the authorities adopt such an approach, but others do not.”

Interclean Industrial Services Ltd v Auckland Regional Council [2000] A198/99

Interclean pleaded guilty to contravention of s15(1)(b) and contravention of an abatement notice.

Environment Judge Treadwell fined Interclean $7,500 for each charge and in addition ordered it to pay solicitors ' costs of $7,500 and analysts ' fees of $5,508.09. The total costs of the solicitor acting for the Auckland Regional Council were $10,861. The evidence of one of the principal witnesses for the council had to be taken before a Court registrar because the witness was about to leave New Zealand on a permanent basis.

Judge Treadwell found that about $3,000 of the legal costs incurred was attributable to the taking of this witness's evidence but there was no reason why Interclean should pay for the Council's costs for the taking of this evidence. Judge Treadwell ordered Interclean to pay the balance costs of $7,500.

Interclean appealed and sought variation of the sentence to impose an order for scale costs in substitution for the award of $7,500.

In the High Court, Justice Randerson considered whether the legal costs of prosecution can be regarded as a cost or expense incurred in "avoiding, remedying or mitigating adverse effects on the environment" in terms of s314(1)(d). The Council argued that the prosecution could be regarded as part of the overall enforcement regime adopted by the RMA and the prosecution 'avoids ' adverse effects on the environment by its deterrent effect on Interclean, as well as others. The Council also relied on Machinery Movers as authority for the proposition that an innovative approach should be taken to sentencing, not only to punish offenders but also to achieve economic and educative goals; and the Court should ensure that, as far as practicable, the costs of pollution are borne by the polluter and not by the community at large.

Randerson J held that the Court on a prosecution under the RMA does not have the power by the combined operation of s339(5) and s314(1)(d), to order the defendant to pay the legal costs of bringing the prosecution because:

a. the focus of s314(1)(d) is on the recovery of costs and expenses incurred in avoiding, remedying or mitigating adverse effects on the environment where there has been a failure to comply (inter alia) with an abatement notice or other obligations under the Act

b. the purpose of s314(1)(d), as clarified by s314(2), is the recovery of the direct costs of avoiding, remedying or mitigating the adverse effects; as well as the indirect costs of investigation, supervision and monitoring of those effects

c. orders made under s314(1)(d) are intended to be compensatory, and the deterrent effect of the sentence flows principally from the penalties imposed under s339

d. the Costs in Criminal Cases Act 1967 applies to RMA prosecutions.

The Council receives 90% of the fine to help cover the costs of the prosecution.

Randerson J also considered whether the case justified an award of costs beyond the scale prescribed by the Costs in Criminal Cases Regulations and found that it did not. Because there was a clear relationship between the disputed costs and the level of fines imposed, Randerson J remitted the matter to the District Court for determination of the issue as to whether the fines should be increased as a result of the High Court decision.

In the District Court, Judge Treadwell increased the fine by $2,000 on each charge and was not prepared to increase the fines any further, because the case had gone to appeal and had been remitted back.

McKnight (Auckland Regional Council) v Horticultural Processors Ltd and Others [1994] CRN 2090016530

Judge Kenderdine dismissed the charges against three of the four defendants. Mr Smith, a defendant who had had the charges against him dismissed, sought costs. Mr Smith argued that there should be payment of costs in excess of the scale pursuant to s13 of the Costs in Criminal Cases Act 1967 because of the special difficulties, complexity and importance of the case.

Judge Kenderdine found that the prosecution had acted in good faith in bringing the proceedings. However, Judge Kenderdine stated, at page 10:

I have grave concern that he [Mr Smith] is now bearing the costs of a criminal prosecution from a council concerned about the toxic effects of the discharge which they deliberately allowed to continue for at least five days after it was brought to their attention - merely in order to press home the charges to HPL. If the slurry was so dangerous it does not seem reasonable that the council allowed it to be dumped for so long and then proceed to charge Mr Smith with an offence of strict liability."

Judge Kenderdine awarded Mr Smith costs of $4,000 plus GST.

Otago Regional Council v Meadow Fresh Foods (Otago) Ltd [1994] CRN 40120100711-0712

Meadow Fresh Foods operates a milk factory in Dunedin. The Otago Regional Council prosecuted Meadow Fresh Foods for discharge of caustic soda into a stream.

A 200-litre drum of caustic soda solution was delivered to the Meadow Fresh Foods premises by truck. The drum was dropped during unloading and caustic soda was released and began to flow towards an open stormwater drain (which runs alongside an internal road to a mud-trap and to a stream). Meadow Fresh Foods staff collected the spilt material behind an improvised dam. The Fire Service arrived within minutes of having been called and assumed control of the site. The City Council dangerous goods inspector also arrived, and discussions took place between the dangerous goods inspector and the Fire Service about disposal of the spilt material.

The Court held that the actual cause of the discharge was the Fire Service's act of putting water on the spilt material: this caused the dam that had been containing the material to fail and allowed the material in a diluted form to enter the stormwater drain and then the stream. The charges were dismissed.

The Court held that the disposal of the spilt material, which had been effectively contained by the actions of a company employee, was taken out of his hands. He had been ordered to leave and there was evidence he was not consulted about what should be done. He deferred to the authority of those who assumed control and appeared to know what to do. It was not a case of a passive failure to act.

Meadow Fresh Foods applied for costs against the council. Its total solicitor and client costs and disbursements came to approximately $17,500. The Court ordered the council to pay $14,000 costs.

The Court in awarding costs held that the Council did not take proper steps to investigate: a more thorough investigation would have revealed that those responsible for the discharge were either the New Zealand Fire Service or the Dunedin City Council dangerous goods inspector.

The case highlights the importance of thorough investigation.