The RMA Quality Planning Resource

An enforcement order is similar in some respects to an abatement notice in that it is used to require a person to cease doing something that contravenes a rule in a plan, requirement in the RMA, or that is dangerous, noxious or offensive. It can also be used to require and offender to do something necessary to ensure compliance or avoid, remedy or mitigate adverse effects.

Unlike abatement notices, enforcement orders are issued by the Environment Court (refer sections 314-319 and 321 of the RMA). As set out in s4(6) of the RMA, an application for an enforcement order can be made against an instrument of the Crown but only if:

  1. it is a “Crown organisation”; and
  2. a local authority applies for the order; and
  3. the order is made against the Crown organisation in its own name.

Enforcement orders offer more options than an abatement notice, including the ability to recover clean-up costs incurred or likely to be incurred in avoiding, remedying or mitigating any adverse effect on the environment. The Court may also order restoration of a natural or physical resource. Where the offender has failed to comply with an order, the local authority, with the Court’s consent, may go ahead and comply on the respondent’s behalf (and recover the cost of doing so under s315 of the RMA).

It can be useful to begin enforcement order proceedings to alert offenders to the seriousness of their actions and make them more amenable to solutions. If a problem or the options to resolve it are complex, enforcement proceedings provide a Court-supervised procedure for bringing about a conclusion, and if problems are encountered during the implementation of the solution, the parties can return to Court for direction.

Scope of an enforcement order - s314 of the RMA

The permissible scope of an enforcement order is set out in s314 of the RMA. In summary, an enforcement order may require a person to:

  • cease, or prohibit a person from commencing, anything which, in the opinion of the Environment Court, contravenes or is likely to contravene the RMA, any regulations under the RMA, a rule in a plan, a rule in a proposed plan, a requirement for a designation or for a heritage order, or a resource consent, s10 (certain existing uses protected), or s20A (certain existing lawful activities allowed)
  • cease, or prohibit a person from commencing, anything that, in the opinion of the Environment Court, is or is likely to be noxious, dangerous, offensive or objectionable to such an extent that it has or is likely to have an adverse effect on the environment
  • do something necessary to comply with the RMA, any regulations under the RMA, a rule in a plan, a rule in a proposed plan, a requirement for a designation or for a heritage order, or a esource consent
  • do something necessary to avoid, remedy, or itigate any actual or likely adverse effect on the environment caused by or on behalf of that person
  • remedy or mitigate any adverse effect on the environment caused by or on behalf of that person
  • pay money to, or reimburse any other person for, actual and reasonable costs and expenses (refer s314(2) of the RMA) incurred or likely to be incurred in avoiding, remedying or mitigating any adverse effect on the environment, where the person against whom the order is sought fails to comply with an enforcement order, an abatement notice, a rule in a plan or proposed plan, a resource consent, or any of that person's other obligations under the RMA
  • restore a natural or physical resource to its state before the occurrence of the adverse effect.

The applicant for an enforcement order has to prove, on the balance of probabilities, that an enforcement order is required. In applying this standard of proof, consideration must be given to the seriousness of the consequences of making an enforcement order. If there is cause for doubt, the Court will give benefit of doubt to those against whom orders are sought.

Whether an activity is objectionable or offensive enough to warrant an enforcement order under section 314(1)(a)(ii) of the RMA should be tested objectively. For example, in Zdrahal v Wellington City Council [1995] 1 NZLR 700) the High Court held that the following factors are relevant:

  • Is the assertion of the person seeking an enforcement order honestly made?
  • If so, is the activity noxious, dangerous, offensive or objectionable, or likely to be so?
  • If so, is it of such extent that it is likely to have an adverse effect on the environment?
  • In all the circumstances, should the Court’s discretion be exercised and an enforcement order made?

Further information about recovering costs relating to enforcement action, is contained in the guidance note Enforcing Plans and Consents.

Procedure for enforcement order application - s316-318 of the RMA

The procedure for making an enforcement order application is set out in s316 to 318 of the RMA. This procedure is summarised the diagram below and the text following the diagram provides an explanation of the stages.

 

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 Preparing and Hearing an Application

An application for an enforcement order must be made in the prescribed form under the Resource Management (Forms, Fees and Procedure) Regulations 2003 and be lodged with the Environment Court (refer Form 43). The applicant must also serve notice of the application in the prescribed form (refer Form 44 of the Resource Management (Forms, Fees and Procedure) Regulations 2003) on every person directly affected by the application within five working days after the application is made.

Before deciding an application for an enforcement order, the Environment Court must hear the applicant and any person against whom the order is sought who wishes to be heard, provided that person has given the Court 15 working days notice of their intention to be heard.

Enforcement orders must be written in precise terms that are capable of enforcement and should not contain information that is debateable or conjectural.

Decision on application including defences - s319 of the RMA

Section 319 of the RMA provides that, after hearing an application, the Court can refuse the application or make any of the orders outlined in s314 of the RMA. The Court has discretion to refuse an order even when the grounds are made out.

For the Court to have jurisdiction on an enforcement order, there does not need to be a high degree of adverse effects on the environment. For example, in AMP v Gum Sarn Property Ltd [1992] 2 NZRMA 119, the Planning Tribunal dealt with a private application for an enforcement order. The Tribunal held that if the local authority does not enforce its plan and a member of the public seeks an order, the fact that the applicant is not officially responsible does not affect the Court’s discretion. On the question of whether an application for an enforcement order is weakened by the fact that the local authority has been slow or otherwise remiss in enforcing the breach of a Plan, the Planning Tribunal held the following:

  • There is significant public interest in the consistent and even-handed enforcement of plans. Respondents are required to abide by the law regardless of whether the council was vigilant.
  • Property owners who fail to observe the relevant planning provisions should not be permitted to continue to profit from that failure.
  • Even if a council official misleads the respondent as to what is required to comply, the obligation to do so remains. However, if a person reasonably relied on misleading information from a council official, this might influence the Court to defer an order requiring compliance.
  • The state of mind and conduct of the respondent is relevant to the discretion of the Court when it comes to the timing and the issue of whether to defer enforcement action.

The principles from this decision were upheld in Manukau City Council v Murray [2002] A084/2002 and in Wainui Environmental Protection Society Incorporated v Redvale Lime Company Limited (A90/08).

Similar questions were dealt with by the Planning Tribunal in Canterbury Regional Council v Canterbury Frozen Meat Co Ltd [1994] A14/94. The Tribunal held as follows:

  • To refuse an enforcement order altogether when there have been illegal contraventions would, in the absence of unusual circumstances, tend to diminish public confidence in the statutory control over the discharge of contaminants, and in the perception that administration of this control is even-handed.
  • Immediate compliance with an enforcement order is usually required, although there is a discretion to postpone the coming into force of an order. The circumstances supporting the deferral of an enforcement order are:
    1. absence of evidence of environmental harm from excessive concentrations of contaminant in the discharge
    2. no flagrant or reckless contravention of the law
    3. the technical difficulty of ensuring that the effluent will constantly meet the stipulated limits without exception.

The discretion to grant or refuse an order is subject to the restrictions or defences in s319(2) of the RMA:

  1. Except as provided in subsection (3), the Environment Court must not make an enforcement order under s314(1)(a)(ii), (b)(ii), (c), (d)(iv), or (da) against a person if-
    1. that person is acting in accordance with-
      1. a rule in a plan; or
      2. a resource consent; or
      3. a designation; and
    2. the adverse effects in respect of which the order is sought were expressly recognised by the person who approved the plan, or granted the resource consent, or approved the designation, at the time of the approval or granting, as the case may be.
  2. The Environment Court may make an enforcement order if-
    1. the Court considers it appropriate after having regard to the time that has elapsed and any change in circumstances since the approval or granting, as the case may be; or
    2. the person was acting in accordance with a resource consent that has been changed or cancelled under s314(1)(e).

In Balfour v Central Hawkes Bay District Council [2006] CA174/06, the Court of Appeal noted that s10 of the RMA (existing use rights) provided an exception to the requirement to comply with district plan rules, but did not override the general duty in s16 of the RMA to avoid unreasonable noise. In this case, use of s319 of the RMA as an alternative defence failed as the Court stated that s319 does not explicitly provide for a defence based on existing use rights, but only for compliance with current rules or resource consents where adverse effects, in respect of which the order was sought, were recognised by the plan.