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RMA law - the devil is in the detail

By Hans van der Wal, Associate

First published in The Rural News, 20 May 2008

The chances are slim of running some sort of farming operation and never needing a resource consent or, at least, some reassurance that a permitted activity rule applies. Whether you want get rid of effluent, take water, build a track or make sure your land doesn’t flood – all are likely to need some sort of permission, without which you can be convicted of an offence.

Sticking your head in the sand will not work. Many are the honest hard-working farmers or unsuspecting rural landowners who find themselves in a District Court dock looking down the wrong end of a conviction and fine. Recent cases have included $20,000 for exceeding nitrogen loadings, $60,000+ for building a track, $7500 for flood control works and $12,500 for taking water.  These were all people who did want to break the law. So what went wrong?

Invariably each unwitting offender had not checked thoroughly enough whether they could still do what they thought they could do. Each case can be traced back to a misunderstanding of what they could do either under Regional Plan rules or their resource consent. Each had a resource consent or permitted activity rule that would have given them permission, if only they had complied with the conditions. They just didn’t understand or know what the conditions meant. As with contracts, the devil is often in the detail of the conditions. Reading, understanding and complying with them is critical.

Why is this so important? The Resource Management Act 1991 makes  it illegal to do things like taking water, disturbing a riverbed or discharging contaminant that may enter water unless permitted by rules or resource consents.

For instance, a water permit might allow the taking of water, but only if it is not taken when the river is on restriction. A permitted activity rule allowing riverbed maintenance may allow excavation of the riverbed, but only if it does not modify the riverbed or cause other problems like sedimentation, erosion, etc. Track maintenance works may be permitted under a particular rule, provided they don’t extend the track or make excavations beyond a certain depth.

Unlike many offences such as assault or theft, which require the prosecutor to show the offender intended to act illegally, a council can prove you committed an offence - even if you did not know you were offending, did not intend to offend or if someone else working for you actually did the works. Simply failing to make sure your sharemilker doesn’t turn on the irrigator when the river is on restriction can be enough to get you convicted, even if you were on holiday at the time. Not keeping tabs on your digger driver can have the same result.

All of this means that anyone who either runs an agricultural operation or owns land on which such an operation occurs runs a high risk of committing an offence without knowing it, unless you take some positive steps to protect yourself. Compliance with the Resource Management Act 1991 is now every bit as important as making sure you have the right insurances or the right licences to operate your farm machinery.

Simple tips as a starting point are:

• If you hold any resource consents or rely on someone else’s consents, make sure you understand the conditions fully and are always able to show you are complying.
• Make sure that anyone who is either leasing your land or is there as your agent, employee or contractor, is aware of all resource consent conditions and has written instructions to comply with them.
• Never assume something doesn’t need consent because you have always done it that way and no one’s stopped you before.
• Never start any new activity on your farm or allow someone else to do so without first thoroughly checking whether you need resource consent or what rules might apply.
• Make sure any advice you get on the need for consent or permitted activities is in writing and comes from a reliable source.

While these steps are a good starting point, the laws, plans, rules and regulations frequently change and can be very hard to understand or even find. An experienced specialist resource management lawyer will be best placed to tell you whether you are at risk of being prosecuted, and what you need to avoid that risk.