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Court knocks out loophole in the RMA

Sarah Day, an environmental lawyer at Duncan Cotterill, looks at recent attempts to avoid the reach of the RMA.

A high profile legal debate which could have seen many farmers dodge their convictions for effluent discharge has just been laid to rest.

Both the District and High Courts have rejected technical arguments claiming an apparent loophole in the Resource Management Act.

The issue was thrust into the spotlight by a Bay of Plenty farmer who was charged for unlawfully discharging dairy effluent on his property. While the matter was before the Courts RMA prosecutions were halted around the country.

The issue focused on a section of the Summary Proceedings Act, which prevents a criminal conviction being entered for anything that is an infringement offence. It was initially the task of Judge Smith (Rotorua District Court) and subsequently Justice Wild (Hamilton High Court) to decide whether offences under the RMA are, in the eyes of the law, infringement offences.

Under resource management regulations, infringement fines ranging from $300 - $1000 can also be imposed for offences against the Act, typically for minor infringements. The question was, did this make all offences under the Act infringement offences for the purposes of the Act - making criminal convictions and fines of up to $300,000 for really serious breaches impossible? Could these regulations have wiped out the possibility to convict and impose the range of fines contemplated by the Act?

The recent argument was that the regulations classified all offences under the Act as infringement offences and, if a council wanted to lay a charge for an infringement offence, it would need to get permission from the court.

The District Court said that the practical impact of this would be very time consuming for the Courts, it would be impractical, unrealistic and absurd. Apparently it was never the intention of Parliament to make all offences against the Act infringement offences by introducing the regulations. The decision was supported by the High Court, although differing in its technical interpretation.

Often when the Court is faced with issues of interpretation, reference is made to outside material to shed light on what was actually intended by Parliament. Justice Smith and Justice Wild referred to comments made by the Select Committee, where there was concern that farmers were being charged with minor offences at great expense. Parliament said that by introducing the new regulatory regime councils could process minor offences as quickly as a parking warden could write a parking ticket.

So infringement offences still have their own place in the Act, and councils still have the power to ask the Court to convict and impose fines of up to $300,000 for severe breaches of the Act.

The message is clear: councils are not taking breaches of the RMA lightly. Farmers every week are appearing in District Courts around the country for inadequate and non-complying systems on their farms. If you are unsure about compliance with the Act – contact your regional council, it may save you thousands of dollars and a possible criminal conviction.

• Sarah Day is a solicitor in the enviornmental law team of national and trans-Tasman law firm Duncan Cotterill. S.day@DuncanCotterill.com; www.DuncanCotterill.com