A polluter, occupiers or current owners (even if innocent parties) can all potentially be liable for contamination and the cost of the remediation under the RMA. 4748 Although where there are not significant effects, under the contaminated land regime liability is usually only triggered when an application is made for consent to a new land use activity or for the land’s rezoning, or if there is a discharge. Under the RMA several options are available to councils for imposing liability.
Infringement notices 4749 result in relatively low-level fines and may be suitable for minor cases of pollution. Minor cases of pollution include discharge of contaminant into air or onto or into land, or discharge of contaminants or water into water or onto or into land where contamination is likely to enter water, 4750 or where there are discharges of contaminants into environment from industrial or trade premises. 4751 If liability for the discharge is challenged by the recipient they can request a hearing in the district court. 4752
Abatement notices and enforcement orders
Abatement notices 4753 and enforcement orders (issued by the Environment Court) may be used to force compliance with RMA obligations and impose liability for the clean up of contaminated land. 4754 Before the Court can make enforcement order it needs to be satisfied that: 4755
- There is an actual or likely adverse effect on the environment;
- That the adverse effect was caused by, or on behalf of, the responden
- That some specific action is needed in order to avoid remedy or mitigate the adverse effect; and
- That the specific action (proposed) can be carried out by the respondent.
Abatement notices are common where there has been a serious contaminant spill. A notice will often include directives for emergency remedial works to be undertaken under the emergency works provisions in the RMA. 4756 These provisions provide for a fast-track process for actions to be undertaken to remove the cause of, or mitigate any actual or likely adverse effect of the emergency.
For more serious breaches of the RMA a polluter may also be prosecuted under criminal offences created under the Act. 4757 Offences include breaching an abatement notice, enforcement orders, or failure to pay infringement fines. Penalties include; for an individual, imprisonment for a term not exceeding 2 years or a fine not exceeding $300,000 or in the case of company (non-natural person) to a fine not exceeding $600,000.
Health Act 1956
The Health Act 1956 contains provision where there is a danger to public health, that an owner or occupier of land can be required by a medical officer or police officer to abate the nuisance. 4758
Strict liability and defences
The unlawful discharge of contaminants 4759 is a strict liability offence which means it is not necessary to prove that the defendant intended to commit the offence. 4760 There are two defences to strict liability available. 4761 The first is ‘necessity’, which requires the defendant to show the necessity of the action for the purposes of saving or protecting life or health, or preventing serious damage to property or avoiding an actual or likely adverse effect on the environment; and, that their conduct was reasonable in the circumstances and that the effects of the action or event were adequately mitigated or remedied. 4762 The second defence is where the event was beyond the control of the defendant, including natural disaster, mechanical failure, or sabotage. They will need to prove the action or event could not reasonably have been foreseen or been provided against by the defendant;and the effects of the action or event were adequately mitigated or remedied by the defendant after it occurred. 4763
Section 314 (1)(da), RMA relates to the scope of an enforcement order and allows the court to require a person to do something that, in the opinion of the court, is necessary in order to avoid, remedy, or mitigate any actual or likely adverse effect on the environment relating to any land of which the person is the owner or occupier.
Section 343C, RMA.
Section 15(1)(a) and 15(1)(b) RMA
Section s 15(1)(c) and 15(1)(d) RMA.
Section 322, RMA.
Councils as well as 3rd Parties may apply to the Environment Court for enforcement orders; section 314(1)(b)(ii).
Section s 314(1)(b)(ii).
Sections 330-331, RMA.
Section 338, RMA.
Section 33, Health Act 1956.
Section 15, RMA
Section 341, RMA
Section 341(2), RMA
Section 341(2)(a), RMA
Section 341(2)(b), RMA
Last updated at 2:59PM on February 8, 2018