The RMA Quality Planning Resource

Court filing fees and expenses for witnesses

Various court fees apply to enforcement action:

  • Local authorities prosecuting under the RMA are not required to pay a filing fee to the Court - Summary Proceedings Act 1957 s207(3): 
         
    Except as provided in regulations made under this Act, no fee shall be received or demanded from any constable or from any duly appointed officer or employee of the Crown or of any local authority or other statutory public body or Board in respect of proceedings instituted by him in the execution of his duty.

A witness attending the Environment Court under summons by a party or call of the Court is entitled to expenses for travel and maintenance while absent from his or her usual residence under s284 of the RMA. Expenses are determined by scale for civil cases under the District Courts Act 1947.

A witness in a prosecution is entitled to receive witness fees, allowances, and travelling expenses according to the scales prescribed by regulations made under the Summary Proceedings Act 1957. The schedule to the Witnesses and Interpreters Fees Regulations 1974 also provides for fees for expert witnesses and interpreters. Regulation 8 of the Witnesses and Interpreters Fees Regulations provides that a Court may authorise the amounts payable pursuant to the Regulations to be increased where the circumstances are exceptional.

Recovery of costs

Overview

There are three categories of cost recovery by a local authority in RMA enforcement matters. These three types of costs are:

  1. Costs incurred by a local authority in the taking of a prosecution (e.g., solicitor fees and witness expenses) and recovered before the District Court.
  2. Costs borne in the investigation of an offence and recovered in proceedings before the Environment Court pursuant to its general discretion to order reasonable costs paid.
  3. Costs resulting from any direct action taken to remedy effects where there is non-compliance; as well as the indirect costs of investigating and monitoring those effects, recovered by way of an enforcement order under s314(1)(d). These costs can be recovered  either before the Environment Court or in the District Court upon prosecution under the RMA.

Costs on prosecution

In prosecution proceedings, where a defendant is convicted by a Court of any offence, the District Court may order the defendant to pay such sum as it thinks just and reasonable towards the costs of the prosecution. Costs are defined as "any expenses properly incurred by a party in carrying out a prosecution" and are limited to costs incurred after the decision to prosecute has been made. The costs are ordinarily scaled in accordance with the Costs in Criminal Cases Regulations 1987 unless the Court is satisfied that the difficulty, complexity or importance of the case is significantly greater than is ordinarily encountered.

General costs recovered before the Environment Court

The Environment Court has a general discretion to order costs paid by one person to any other person, which it considers reasonable. The principles for awarding costs have been articulated by the Courts as follows:

  • An order for payment of costs is not a penalty against the unsuccessful party, but compensation for the successful party.
  • Costs incurred by local authorities in enforcement fall on public funds, which should be protected.
  • A party should pay a higher-than-usual amount of costs where it has contributed to the need for or duration of the hearing.
  • It is appropriate to include costs for council staff time, but expenses incurred by officers preparing for the prosecution cannot be claimed.
  • There is no scale of costs, and the Court has discretion, but an award of one-third to one-half of actual costs is usual. Solicitor and client costs are rare. Witnesses' costs are usually allowed in full.

In Waikato Council and Waikato District Council v Campbell and Others [2003] A198/2003, the councils claimed for in-house officer costs relating to monitoring and enforcement. The respondents contended that such costs were part of the role of salaried officers and would have been incurred regardless. The Court accepted that councils were entitled to recover, under s36, costs of salaried officials regardless of whether their salaries are budgeted for; and that the councils would have been able to recover such costs if the work had been done outside of the councils. The respondents also contested that they should pay the charge-out rates for council staff and that the direct costs (hourly rate) of their salaries would be reasonable. The Court accepted that, in principle, the costs incurred by a council in having an employee carry out duties in avoiding, remedying, or mitigating adverse effects on the environment include proportionate overheads. The overheads, on a case-by-case basis, could be challenged in terms of fairness and reasonableness.

Recovering costs by enforcement order - for avoiding, remedying or mitigating adverse effects

Under s314(1)(d) of the RMA, an enforcement order may be sought from the Environment Court to require a person to reimburse other parties for 'actual and reasonable costs and expenses' incurred in avoiding, remedying or mitigating adverse effects. The recovery of costs under s314(1)(d) deals directly with the expense in protecting the environment or indirectly monitoring the effects of an activity.

'Actual and reasonable costs and expenses' are described in s314(2) as including those associated with investigation, supervision and monitoring of effects, and the costs of actions required to avoid remedy or mitigate adverse effects. Such costs may include:

  • inspections
  • meetings in an attempt to reach an agreement and/or achieve cessation of an activity that was likely to have adverse effects on the environment
  • research of data bases for information relating to the land/activity to assist in avoiding, remedying, or mitigating adverse effects
  • external witness expenses, if the expenses would not have been incurred had the offender avoided or remedied the effects.

The Court will not necessarily order payment of all costs that qualify. In setting appropriate awards of costs under s314(1)(d), the Court has regard to the:

  • application of the 'polluter pays' principle (as the starting point)
  • nature of the environment and the effect on the environment
  • deliberateness of the person responsible for the pollution incident
  • degree of cooperation with a local authority
  • efforts made to rectify any damage done and to ensure that the activity requiring the enforcement order does not recur or continue
  • actions of the territorial authority through its officers.

Monitoring costs

Costs related to monitoring consents including investigation of breaches can be claimed as charges pursuant to section 36 of the RMA if an appropriate mechanism has been set in place. For more information on cost recovery associated with monitoring resource consents, see the guidance note on setting charges for processing and monitoring consents under the RMA.