The RMA Quality Planning Resource

Auckland Regional Council v Graham [1995] CRN 4090020525-527

The enforcement officer entered a pig farm in the early hours of the morning to investigate a complaint that the defendant had been spray-irrigating pig waste onto her property at night. The defendant conducted her own defence and complained about the time of the inspection. The Judge considered s332 of the RMA and found that the time of the inspection was reasonable because the enforcement officer was legitimately investigating an alleged unlawful discharge at night.

An Application by Waikato Regional Council v Wellington [2002] A226/02

The Waikato Regional Council sought declarations relating to the power to enter private property.

The Court discussed an enforcement officer's implied licence to enter private property. It noted that s332 of the RMA only needs to be relied on when there is no invitation to enter and when no-one is present on site. The Court decided that force could be used if reasonably necessary to enter onto private property otherwise the ability to carry out inspections for the purpose of ensuring compliance would be hindered.

The words 'specifically authorised' in s332(1) are a reference to the enforcement officer's powers. The Court found that an enforcement officer authorised to act under s332 does not need written authorisation specifying the time, place or assistance required for an inspection.

The Court also determined that s332 does not authorise use of force to enter when there are reasonable grounds to believe that evidence of an offence against s338(1) will only be collected if an inspection is undertaken immediately. Section 332 only authorises inspections to determine compliance. If there are reasonable grounds to believe that an offence punishable by imprisonment has been committed, s334 should be used.

Note that the New Zealand Pork Industry Board was concerned at the risk of infection or disease from the exercise of a power of entry. The Court pointed out that an enforcement officer is required to comply with statutory requirements, such as the Health and Safety in Employment Act 1992, which may apply. Enforcement officers are also required under the general law to act with reasonable care, having regard to the circumstances.

Re Waikato Regional Council [2003] NZRMA 481 (HC Auckland AP18-SW03)

The councils appealed the Environment Court’s finding in Waikato Regional Council v Wellington [2002] A226/02 that s332 of the RMA has a regulatory as opposed to an investigative function and that where there is suspicion of an offence, s332 of the RMA is limited to inspection and taking of samples.

The High Court held that s332 authorises enforcement officers to go on to property for the purposes of carrying out an inspection to determine compliance with the RMA, regulations, plans or consents.

If during the course of the inspection initiated for that purpose, the enforcement officer obtains evidence (including by way of samples) of an offence under the RMA then such evidence would prima facie be admissible in any subsequent prosecution.

If, on the other hand, the council and/or its enforcement officer has reasonable grounds to consider that an offence (punishable by imprisonment) has been committed, then council and the enforcement officer cannot rely on s332 to authorise an inspection of the property if the purpose of the visit is to obtain evidence to support such a prosecution. In that case, an application for a search warrant under s334 is required.

Marlborough District Council v Searle [1996] CRN 6006004645

The Marlborough District Council prosecuted Searle for breach of s9(3) of the RMA for excavation of Class VI(e) land within 8 metres of the sea, being a use of land contravening a rule in the regional plan. The charge was dismissed because the Council failed to establish that the land was Class VI(e) land.

One of the arguments raised by the defendant was that the enforcement officers' entry upon the land was illegal because there was no-one present when the enforcement officers inspected, and the enforcement officers did not leave written notice of the date and time of inspection.

Environment Judge Treadwell held:

Officers of Council must be extremely careful in carrying out the requirements of s332 [of the RMA] but in the present case I do not hold that has invalidated in any way the evidence I heard because the evidence of the cutting of the track could have been given without entry upon land namely by standing on the foreshore or sitting in a boat and observing it.

Northland Regional Council v Northland Port Corporation (NZ) Ltd and Others [1996] CRN 5088011428-447, 527-28, 532-33

The Northland Regional Council prosecuted the Northland Port Corporation and others for the discharge of spent sandblasting sand and oil. Judge Bollard expressed astonishment that none of the three officers who collected the samples undertook responsibility for looking after the samples, for making sure the whereabouts of the samples was known, and for reasonably assuring the samples ' security from the time they were taken to the time they were uplifted from the refrigerator in the Council laboratory. The Judge described the evidence surrounding the samples as unpersuasive and, in some respects, substandard. As a result some of the charges were dismissed.

Northland Regional Council v Juken Nissho Ltd [1998] CRN 7029003709, 7029003874 and 7029004299

The Northland Regional Council prosecuted Juken Nissho for contravention of s15(1)(c) of the RMA, discharge of contaminants into air in breach of Juken Nissho 's resource consent. One of the three charges against Juken Nissho was dismissed because the security of the samples could not be established beyond reasonable doubt. The Ministry of Agriculture and Forestry laboratory, to which the Council had sent the samples for analysis, had a chain-of-custody procedure in place but did not adopt the procedure for the Northland Regional Council samples.

Wellington Regional Council v O 'Rourke and Cremen [1993] CRN 3035007074-76

O 'Rourke and Cremen pleaded not guilty to a breach of s15(1)(b) of the RMA - discharge of septic tank sludge and grease trap waste. No evidence was given by the Council to establish that the sample collected was the sample analysed: this had been overlooked. The charges were dismissed.

Canterbury Regional Council v Pacific Marine Ltd [2001] CRN0009026633

Successful prosecution of Pacific Marine on a charge of discharging a contaminant into the coastal marine area. The pollution response team concluded that the oil could only have originated from a particular vessel and samples were taken accordingly. The defendant contended that the contaminant could equally have originated from one of the other vessels berthed in the area and that, in not taking samples from those vessels, the sampling and testing process was flawed.

The Court considered that the sampling procedure was adequate. For the charge to fail it would be sufficient if there was a reasonable possibility that the spill might have come from a source other than the vessel in question but, in this case, there was no reason to suspect any of the other vessels. The handling and storage of the samples in this case was appropriate and did not compromise the validity of the analyses.

Manawatu - Wanganui Regional Council v Lakeview Farm Fresh Ltd [2000] CRN 9031005197-205

The Manawatu - Wanganui Regional Council prosecuted Lakeview Farm Fresh Ltd for breach of s15(1)(c) of the RMA. The defendant sought an order dismissing the charges on the grounds that the media reports on the activities of the company had affected its rights under paragraphs (a) and (c) of s25 of the New Zealand Bill of Rights Act 1990:

25. Minimum standards of criminal procedure—

Everyone who is charged with an offence has, in relation to the determination of the charge, the following minimum rights:

a. The right to a fair and public hearing by an independent and impartial court:

b.…

c. The right to be presumed innocent until proved guilty according to law.

It was accepted by the Council and the defendant that there had been a fair amount of publicity given to the activities of the defendant in respect of odours alleged to have emanated from its premises. Judge Treadwell noted that the Council:

…has been active in advising the public of steps it has taken with a view to remedying alleged odour nuisances. Occasionally an article has omitted the word 'alleged ' indicating that the defendant company is in fact the culprit. Many of the articles also assume that the alleged discharge is in fact offensive and objectionable ... The local press has also pursued the defendant company with some enthusiasm as evidenced by headlines 'Company Causes Stink ' and 'Freephone for Smell Complaints ' followed by an article clearly associating smell with the defendant company.

Judge Treadwell found no a substantial risk that the fairness of the trial would be prejudiced because the defendant had elected trial by Judge alone. Judge Treadwell held there is a difference between media material which may influence a potential jury, and the situation where a case is to be dealt with by a Judge alone.

The defendant also argued that the media reports would influence witnesses. Judge Treadwell held that:

Witnesses are called to give the Court their evidence on oath and I do not find that the views of the local press and or the Regional Council could necessarily lead such witnesses to effectively commit perjury or to have their views affected to such a degree that they would tell the Court that odour was offensive when they were previously of the opinion that it was not.

Judge Treadwell held that the New Zealand Bill of Rights Act 1990 had not been breached, but restricted his comments to trial before Judge alone. Judge Treadwell warned local authorities to be careful about the information contained in press releases:

Whilst the actions of the informant may not in this case lead to an injustice I would observe that informants should not use the media to portray themselves as knights in armour guarding the public good. It is perfectly sufficient for them to indicate to the public that they are taking action in respect of alleged public nuisances but it is in my opinion not desirable nor is it the role of a public authority to make the type of press release which has been made in several instances in relation to the present matter where an official release clearly covers disputed factual matters which are more properly the prerogative of the Court.