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At the council’s mercy – wrestling with the RMA

By Hans van der Wal, Associate

First published in The Rural News, 17 February 2009

No one wants to see “decent people” turned into criminals by strict laws or their overly zealous application.  For those who followed the anti-smacking debate, the rhetoric will be familiar, but irrespective of where one stands on that issue, there are other situations where “decent” people can potentially end up being treated like a criminal.

Because the Resource Management Act 1991 makes it possible to trangress unknowingly and unintentionally, it doesn’t take much to end up technically committing an environmental offence.  The dairy farmer whose effluent spreader breaks down and causes ponding, the crop duster whose load ends up blowing into a waterway or the lifestyle block owner who digs a pond as a wildlife habitat are all likely to be committing a criminal offence.

Fortunately, the RMA does not require an environmental offending conviction for anyone who has ever had a minor spill after an equipment breakdown. Councils, who have the often thankless job of enforcing New Zealand’s environmental laws, have a discretion as to how they do this. Despite the RMA not containing the clarification that is now in the anti-smacking legislation - that prosecution is not compulsory in all situations, -  Councils do not have to prosecute for every breach.  Instead, they have to use prosecution responsibly as one of the many tools with which they stop people from breaking the rules.  Used wisely, this tool, though unpopular, will make people aware of the importance of looking after the environment without punishing them for honest and minor mistakes.

Ideally speaking, the person who unwittingly breaks a district or regional plan rule, has never done so before, is happy to fix the problem and causes no lasting environmental harm should not be prosecuted. Instead, they should be given a formal warning.    Of course, if they deliberately keep on breaking the rules, it would be disappointing if the Council did not step in and prosecute.  In the same way, if someone, through their carelessness, persistently and repeatedly allows a lot of raw dairy effluent to escape into a river, thereby harming fish and dirtying the river, they should clearly be held to account. 

The problem is that it’s easy for the Councils to get it wrong – by either jumping straight to prosecution for the most trifling infringements, or by sitting by and doing nothing while someone carelessly or intentionally destroys or damages the environment.  It is very difficult to challenge the way in which a Council decides whether to prosecute because the Courts will rarely interfere with what is called the “prosecutorial discretion”.  As a result, there is little or no Court guidance on when a Council should prosecute.  The best guidance comes from sentencing decisions, which decide how serious offending is.  Those decisions show that the more serious offences are those which:

• Cause greater and/or irreversible environmental harm;
• Are deliberate or the result of carelessness;
• Result from ignoring notices or warnings not to break the rules;
• Are repeat offences;
• Involve a refusal to fix the harm or accept responsibility for it.

This affects not only the Councils, but those who breach rules and those who suffer from the resulting environmental damage.  The RMA’s criminal reach is wide and can affect anyone including the cropduster, the dairy farmer washing out his shed after milking and the lifestyler doing some habitat enhancements.  Every step that can be taken to lessen the seriousness of any of these factors will help to reduce the risk of becoming a convicted environmental offender.  Often co-operating with the Council is a good way of showing that a prosecution is unnecessary, although it may be a good idea to seek advice first if the incident is potentially serious.

In the end, the Courts can discharge someone without a conviction, if they are convinced the offending was very minor. But, of course, it is better not to let it get that far by avoiding breaches in the first place and where appropriate, co-operating to show a prosecution is not needed. 

• Hans van der Wal is an environmental law specialist at national and trans-Tasman law firm Duncan Cotterill. H.vanderwal@duncancotterill.com; www.DuncanCotterill.com.

Disclaimer: the content of this article is general in nature and not intended as a substitute for specific professional advice on any matter and should not be relied upon for that purpose.