The RMA Quality Planning Resource

Privacy

The starting point for all powers of entry, inspection and search is the common law right to privacy. The law protects privacy. As an employee of a prosecuting authority, an enforcement officer has no greater right than a person off the street to invade privacy, unless an additional power is given to the officer by statute.

Ordinarily then, a person needs consent to enter private land or premises. Like any other person, enforcement officers can go to the front door of a property (or other public or customer entrance), and make reasonable inquiries to locate the owner or occupier; but if no one is home or if turned away, they must leave. The exception to this is where the owner or occupier of a site has made it clear that members of the public cannot enter, by way of signage or otherwise.

To be fair in carrying out an investigation, enforcement officers should explain who they are and the purpose of the visit so the occupier has opportunity to ask them to leave.

Common issues

Questions commonly asked by enforcement officers about inspections include:

  • When must they rely upon their power of entry and, therefore, also show their warrant or leave a notice of inspection when they exercise the power?
  • What assistance and force can be applied during an inspection?
  • How they can use search warrants?

General power of local authority to enter land

Section 171 of the Local Government Act 2002 (LGA) provides a general power for a local authority to enter private land (though not a dwelling) to enable the local authority to perform its functions under the LGA. This is a general power available for all council inspections, but it need only be relied on when no other provision assists.

If entry is to determine compliance with a national environment standard, district or regional plan, resource consent, or abatement notice (among others), s332 of the RMA provides a power of entry without prior notice. However, officers are still required to show their warrant on arrival, and to leave a notice of inspection if no one is home. Entry can only occur during reasonable times.

The power does not extend to a ‘dwellinghouse’, which is defined to mean any building used as a residence, along with any structure or outdoor area. To enter a dwellinghouse, an enforcement officer will require a search warrant. In such circumstances the general power under the LGA provides no advantage.

If there is an emergency situation under s330 of the RMA, s330(2) provides a power to the local authority to enter private land (including a dwelling house) and do works, or direct the occupier to do works, to remove the cause or mitigate the effects of the emergency. Although they have some emergency powers under the RMA, the express power to enter private land does not extend to owners and operators of public works, network utilities, and lifeline utilities. A separate guidance note on emergency powers provides further information.

Power to inspect to determine compliance - s332 of the RMA

Under s332 of the RMA, any enforcement officer, specifically authorised in writing by any local authority to do so, may at all reasonable times go on, into, under or over any place or structure, including private property except a dwelling house, for the purpose of inspection to determine whether the RMA, an enforcement order, or an abatement notice, etc., is being complied with.

It is important for the officer's warrant under s38 of the RMA to clearly state that the enforcement officer is authorised to act pursuant to s332.

Note that compliance with the RMA includes compliance with the general duties in s16 to avoid unreasonable noise and s17 to avoid, remedy or mitigate adverse effects, regardless of whether a consent, rule or national environmental standard applies.

Further inspections

The power under s332 of the RMA is to enter to determine compliance. Arguably this power is 'exhausted' once an investigator has sufficient evidence to be reasonably satisfied of non-compliance by a person.

Samples may be taken to determine whether or not there is any non-compliance, but once this is clear the power of inspection cannot be relied on to gather further evidence.

For example, the High Court in Waikato Regional Council v Wellington City Council [2003] NZRMA 481 (HC Auckland AP18-SWO3) stated that if a local authority has made up its mind to prosecute, and the purpose is to gather further evidence for prosecution of an imprisonable offence, s332 cannot be relied upon and a search warrant is required (unless there is permission to enter).

Time of entry

Section 332(1) of the RMA provides that entry is to be at all reasonable times (e.g., not late at night), unless there is justification.

Taking samples

Section 332(2) of the RMA provides that the enforcement officer may take samples of water, air, soil or organic matter. Under s332(2A) the officer may also take a sample of any substance for which there is reasonable cause to be suspected of being a contaminant of any water, air, soil or organic matter.

Samples do not include documents. To take anything belonging to a person and not specifically authorised to be taken by inspection powers would amount to criminal conversion or theft.

Assistance

Section 332(6) of the RMA provides that any enforcement officer exercising any power under s332 may use such assistance as is 'reasonably necessary'.

This provision was considered in An Application by Waikato Regional Council [2002] A226/02, where the Court was asked to make a declaration on the assistance that enforcement officers can call on. The Court considered the ordinary meanings of the words in S332 (6) and the definition of 'reasonably necessary'.

The Court found that an enforcement officer may, when it is reasonably necessary, seek assistance from non-warranted officers of the council or experts, police officers, vehicles and specialised equipment (and specialised or licensed operators) needed for the inspection and taking of samples. A local authority might also use reasonable force to assist entry. An example of this might include the breaking of locks when the occupier was given a fair opportunity but refused to open them with a key, and the opening of the locks was necessary for the purposes of the inspection. However, given the different situations that could arise, the Court declined to make a declaration in the terms sought.

The Council appealed to the High Court. The High Court in Waikato Regional Council v Wellington City Council [2003] NZRMA 481 (HC Auckland AP18-SWO3) also refused to make the declaration sought and remitted the case back to the Environment Court.

Requirements of entry under s322 of the RMA

1: Production of warrant

The first step the enforcement officer must take upon entering a property is to make an attempt to find the owner or occupier. If the owner or occupier is present, the enforcement officer must produce the warrant. If the owner/occupier later asks to see the warrant again, the warrant must be shown.

If more than one enforcement officer is involved in the inspection, all of them must provide their warrants. It is not sufficient for only one of the enforcement officers to do so.

If the enforcement officer suspects the person at the property is not the owner or occupier (refer s2 of the RMA), the warrant should still be produced.

Enforcement officers should produce their warrants whenever private property is entered. This will avoid any argument later that the evidence was collected unlawfully and is inadmissible.

2: Notice of inspection

If the owner/occupier is not present, a written notice showing the date and time of the inspection and the name of each enforcement officer who inspected should be left in a prominent position, or attached to the structure inspected. A photograph of the notice should be taken as evidence of compliance with s332(4) of the RMA and, a letter should also be sent to the owner/occupier notifying them of the visit.

If the owner/occupier is not present, s332(4) should always be complied with to avoid any argument that the evidence collected is inadmissible.

Obstruction

If the owner/occupier is obstructive, the enforcement officer should leave the property and arrange for a police officer to accompany him or her back onto the property later.

Wilful obstruction of any person executing any powers conferred by the RMA is an offence against s338(3). The maximum penalty is $1,500.

 

Powers of search

Search warrants - s334 and s335 of the RMA

Under s334, an application for a warrant for entry to search can be made where there are reasonable grounds for believing an offence has been committed that is punishable by imprisonment. In particular, warrants can be obtained to search for specified things where there are reasonable grounds to believe that they:

  • are on or in any place or vehicle, and
  • will provide evidence of the offence or are intended for the purpose of committing the offence.

As indicated by the wording of the second item above, a search warrant can be pre-emptive.

The power to seize applies not only to what is specified in a warrant, but also to any other thing for which the enforcement officer or constable reasonably believes a warrant could have been obtained for.

Note that some RMA offences are not imprisonable, such as noise notices under s327 and s322(1)(c).

Section 335 provides that the warrant must be executed by either a constable or an enforcement officer accompanied by a constable. There are various requirements under s335(4) to show the warrant, to leave written notice of the search if the owner/occupier is not present at the time, and to send a list of taken items to the owner or occupier.

Illegal and unreasonable searches

If a search breaks any law or breaches the legal rights of any person (such as failing to provide proper notice), a judge may exclude, from consideration, the evidence that was obtained. Section 30 of the EA applies in such circumstances. The judge will consider things such as, "whether there were any other investigatory techniques not involving any breach of the rights that were known to be available but were not used".

A search may also be unreasonable or 'unfair' even if legal. An example is when there was no good reason to enter, or to enter with force, after permission was refused. Section 21 of the New Zealand Bill of Rights Act requires that any search or seizure undertaken in the exercise of a public function must be reasonable. Proceedings in relation to s21 of the Bill of Rights Act may also result in monetary damages or compensation being awarded.

Previous cases are still relevant to the extent that they are consistent with the provisions and purposes of the EA .

In Hamed v R [2011] NZSC 101 the Supreme Court held that video surveillance could constitute a search if the subject matter of the surveillance was not a place that was within public view.

In considering whether a search is unreasonable the Supreme Court held that it is necessary to look at the nature of the place or object being searched, the degree of intrusiveness into privacy and the reason why the search was occurring.

Power to require certain information - s22 of the RMA

The RMA gives enforcement officers the power to require a suspect to provide information as to their identity.

Under s22 of the RMA, if the officer has reasonable grounds to believe that a person is breaching or has breached any obligations under this part, the officer can direct him or her to give the officer the following information:

  • if the person is a natural person, their full name, address and date of birth
  • if not, the person’s full name and address only.

The officer can also direct the person to give the following information about another person on whose behalf they are breaching or have breached any obligations under Part 3 of the RMA:

  • if the other person is a natural person, their full name, address and date of birth
  • if not, its full name and address only.

It is an offence not to provide this information (s338(2) of the RMA).