The RMA creates a range of criminal offences for contravening the provisions of the Act.
Types of offences
There are three levels of offences under the RMA.
Grade 1 offences for which the maximum penalty for a person is imprisonment for up to 2 years or a fine up to $300,000. Entities may be subject to a fine up to $600,000. If the offence is a continuing one they may also be liable to a fine up to $10,000 for every day during which the offence continues.
These offences include:
- Using land in contravention of a rule in a district plan or any proposed district plan
- Subdividing land without a resource consent where it is not expressly allowed in the district plan and any proposed district plan
- Undertaking a range of activities in the coastal marine area, including reclamation, excavation and building structures, or damaging marine life, habitats and historic heritage, without a resource consent
- Undertaking a range of activities on the bed of lakes and rivers including building structures, excavation, reclamation and dumping without a resource consent.
- Taking, damming or diverting fresh or inland coastal water without a resource consent where it is not expressly allowed in the regional plan and proposed regional plan (and where it is not for domestic or animal watering needs)
- Discharging contaminants into the environment without a resource consent where it is not expressly allowed in the regional plan and any proposed regional plan
- Contravening the provisions of an enforcement order, abatement notice or water shortage direction
Grade 2 offences for which the maximum penalty is a fine up to $10,000 and, if the offence is a continuing one, a further fine up to $1,000 for every day during which the offence continues. 1113 These include: 1114
- Failing to provide information to an enforcement officer
- Contravening an order protecting sensitive information 1115
- Contravening the provisions of an excessive noise direction
- Contravening an abatement notice for unreasonable noise
- Contravening any order (other than an enforcement order) made by the Environment Court
- Wilful obstruction of people exercising powers under the Act
- Contravention of a summons issued by an Environment Judge or Commissioner, refusal to give evidence at Environment Court proceedings or refusal to answer questions put by a member of the Environment Court 1118
- Contravention of a summons or order to give evidence issued by a consent authority
- Contravention of an instrument creating an esplanade strip or an easement for an access strip or entering a strip which is closed to the public
Who can be prosecuted?
Any party can be prosecuted for offences under the RMA. Prosecution is not restricted to the person actually carrying out the act which is illegal, but can include a wide range of associated parties: 1120
- Where an agent, including a contractor, commits an offence, the person engaging the agent can also be liable as if he or she had committed the offence.
- An employer can be liable for an offence committed by an employee
- The owner of a ship can be liable for an offence committed by the person in charge of the ship
However, those persons have a defence if they are able to prove they did not know, and could not reasonably be expected to have known, that the offence was being committed or they took all reasonable steps to prevent the commission of the offence. 1121
Company directors can be personally liable for offences committed by their company if it is proven that the offence took place with the directors authority/permission/consent and the director knew, or could reasonably be expected to have known, that the offence was being committed and failed to take all reasonable steps to prevent or stop it.
Crown entities, government departments and government-related organisations such as the Parliamentary Service can only be prosecuted if: 1123
- The proceedings are commenced by a local authority or an enforcement officer; and
- The proceedings are commenced against the Crown organisation in its own name and the Crown is not named as a defendant
Crown organisations cannot be required to pay a fine, but they can be subject to an enforcement order requiring them to take action to remedy a breach of the Act. 1124
How are offences prosecuted?
Prosecutions are governed by the Criminal Procedure Act 2011. A prosecution is initiated by filing a ‘charging document’ with the District Court. A 'charging document' sets out the details of the alleged offence, such as the rule in a plan that has been breached and the respect in which it is said to have been contravened. Local authorities normally prosecute offences under the RMA, but prosecutions can be initiated by any person.
Prosecutions of Grade 1 offences must be initiated within 6 months of the alleged offence becoming known, or of when it should have become known, to the local authority. 1125 On the question of when a contravention “should have become known” to the relevant authority what is required is more than just suspicion that offending might be occurring, it requires some factual basis to alert an informant to the likelihood of the commission of the offence. This was not necessarily when an allegation was received but was more likely to be when the officer had sufficient information to justify an investigation. 1126
Prosecutions of Grade 2 and 3 offences must be initiated within 6 months of the alleged offence occurring.
How are prosecutions heard?
Prosecutions under the RMA are dealt with in the District Court by a District Court Judge who is also an Environment Judge, unless otherwise directed by the Chief District Court Judge.
Grade 1 offences are punishable by imprisonment by a term of 2 years and so the Criminal Procedure Act 2011 provides for election of trial by jury. 1128
The prosecution needs to provide the actus reus (the wrongful act or omission that comprises the physical components of a crime). Most RMA offences are strict liability offences and therefore the prosecution does not need to prove that the defendant intended to commit the offence. 1129 The defendant has an evidential burden to raise any exception (e.g. that a discharge was ‘expressly allowed by a rule in a regional plan and in any relevant proposed regional plan, a resource consent, or regulations’) after which the informant has a legal burden of disproving that the exception applies.
The provisions of Part 2 of the RMA are not relevant to the decision to prosecute. 1130
Are any defences available?
There is no defence available on the basis of: the merits of a regional or district rule, 1131 the validity of a resource consent condition, 1132 the fact that the effects of the offence were de minimus, 1133 or past failures of a consent authority to enforce the conditions of a resource consent. 1134
A breach of section 9, 11, 12, 13, 14 or15 of the Act is a ‘strict liability’ offence and there is no need to show that the defendant intended to commit the offence. 1135 However, a defendant has the opportunity to prove on the balance of probabilities 1136 two defences. 1137 The first is a “due diligence” defence which requires that:
- The action was necessary for the purpose 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
- The conduct of the defendant was reasonable in the circumstances, and
- The effects of the action were adequately remedied or mitigated by the defendant
The second defence available is an “act of god” defence which requires that:
- The action was due to an event beyond the control of the defendant e.g. natural disaster, mechanical failure, sabotage, and
- The action could not reasonably have been foreseen by the defendant, and
- The effects of the action were adequately remedied or mitigated by the defendant.
These defences are only available if the defendant informs the prosecution of his or her intention to rely upon such a defence within seven days of being served with a summons.
The word necessary is a fairly strong word falling between expedient or desirable on the one hand and essential on the other.
The test is objective, it does not depend on the defendant’s beliefs, and there needs to be immediacy and urgency, it will not be reasonable and necessary to rely on the defence if sufficient time is available to obtain consent.
A defence of ‘officially induced error’ is not established in New Zealand. 1141
How are sentences determined?
The purposes of the penalty regime include the protection of the public from the harm of environmental damage, the protection of the environment from damage, and ensuring that the costs of pollution are borne by whoever is responsible for the pollution.
The Courts have states that “If fines are too low, they will be regarded a minor licence fee for offending and convey the idea that the law may be broken with relative impunity”.
From 1 October 2009, the potential fine for Grade I offences increased from $200,000 to up to $300,000 in the case of a natural person and up to $600,000 in any other case. This may be taken as a legislative direction to the Courts to ensure that higher penalties are imposed that will have a significant deterrent quality.
Imprisonment and community work sentences are available to the Court. Community work may be imposed where a financial penalty is not appropriate due to a defendant’s financial circumstances. Imprisonment may be appropriate where there are repeated significant failures to comply with the RMA.
The Sentencing Act 2002 is now the starting point for any sentencing. It sets out the purposes of sentencing which include holding the offender responsible for harm caused to the community by the offending and to denounce the conduct in which the offender was involved. 1146 It also sets out the principles of sentencing 1147 under which the Court:
- must take into account the gravity of the offending in the particular case, including the degree of culpability of the offender; and
- must take into account the seriousness of the type of offence in comparison with other types of offences, as indicated by the maximum penalties prescribed for the offences; and
- must impose the maximum penalty prescribed for the offence if the offending is within the most serious of cases for which that penalty is prescribed, unless circumstances relating to the offender make that inappropriate; and
- must impose a penalty near to the maximum prescribed for the offence if the offending is near to the most serious of cases for which that penalty is prescribed, unless circumstances relating to the offender make that inappropriate; and
- must take into account the general desirability of consistency with appropriate sentencing levels and other means of dealing with offenders in respect of similar offenders committing similar offences in similar circumstances; and
- must take into account any information provided to the court concerning the effect of the offending on the victim; and
- must impose the least restrictive outcome that is appropriate in the circumstances; and
- must take into account any particular circumstances of the offender that mean that a sentence or other means of dealing with the offender that would otherwise be appropriate would, in the particular instance, be disproportionately severe; and
- must take into account the offender's personal, family, whanau, community, and cultural background in imposing a sentence or other means of dealing with the offender with a partly or wholly rehabilitative purpose; and
- must take into account any outcomes of restorative justice processes that have occurred, or that the court is satisfied are likely to occur, in relation to the particular case.
Factors that may amount to mitigating conduct by a defendant include:
- Minimal environmental damage;
- Immediate clean-up action taken by a defendant;
- Clean-up carried out by a defendant company at its expense;
- Steps taken to avoid recurrence;
- The offence occurred at a time when steps were being put in place to create a new management regime;
- The acts of the offence would not have reasonably been within the contemplation of the defendant company;
- The harm was at the lower end of the scale;
- Adverse effects were short term;
- An offence was not deliberate;
- The lack of any profit element;
- Compliance (even if belatedly) with an abatement notice;
- Through no fault of the defendant, work did not go according to the approved plans;
- The supervention of unpredictable weather conditions;
- A defendant was let down by professional advisers; and
- A plea of guilty and acknowledgement of culpability and liability at an early stage (if a guilty plea is made at the first opportunity this will generally result in a one-third reduction 1149 ); and
- A further factor in mitigation may be a defendant’s willingness to undertake a restorative justice process.
In addition to these factors, relevant matters in the RMA context are the nature of the environment affected, the deliberateness of the event and the attitude of the defendant.
The Courts should consider the personal and financial circumstances of defendants when sentencing. Clear and unequivocal material showing inability to pay the proposed fine is required to justify a reduction in fine.
However, a reduction may not be appropriate where the offending is of such a nature that the public interest demands a greater penalty notwithstanding the defendants limited means.
The option to discharge a defendant without conviction is available to the Court and may be appropriate in cases of minimal culpability and substantial mitigation. The Court must not discharge an offender without conviction unless the Court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence. 1153 A defendant who is discharged without conviction may still be ordered to pay the informant’s costs of investigation and prosecution. 1154
Where a prosecution is unsuccessful, the defendant may apply for costs under the Costs in Criminal Cases Act 1967 and its regulations. The Court may order that the defendant be paid such a sum as it thinks just and reasonable towards the costs of his or her defence. There is no presumption for or against the granting of costs in any case. The Court is likely to consider whether the prosecution acted in good faith in bringing and continuing the proceedings, whether the prosecution has sufficient evidence to support the conviction at the comment of the proceedings, whether the prosecution properly investigated any matter that suggested the defendant might not be guilty, whether the investigation was conducted in a reasonable and proper manner, whether the evidence was dismissed on a technicality, whether the defendant established that he or she was not guilty, and the behaviour of the defendant. 1155
What should you do if you suspect an offence?
If you suspect that an offence against the RMA is occurring, record as many details as you can including the date, time, nature of the activity, people involved and environmental consequences. If possible, make a photographic or video record of the activity and environmental effects. Contact the relevant local authority as soon as possible and provide details of the suspected offence. Councils often have after hours numbers and pollution hotlines which you can use. Follow up with the council to find out what action if any has been taken and, if no action has been taken, the reasons why.
As an alternative to criminal proceedings a Council may serve an infringement notice where an infringement offence has been committed. The person culpable will required to pay an infringement fee of up to $1000. 1156 Infringement offences and fees are set out in the Resource Management (Infringement Offences) Regulations 1999.
Section 339 Resource Management Act 1991
Section 338(1), (1A) and (1B) Resource Management Act 1991
Section 339 Resource Management Act 1991
Section 338(2) Resource Management Act 1991
Section 42 Resource Management Act 1991
Section 339 Resource Management Act 1991
Section 338(3) Resource Management Act 1991
Section 283 Resource Management Act 1991
Section 41 Resource Management Act 1991
Section 340(1) Resource Management Act 1991
Section 340(2) Resource Management Act 1991
Section 340(3) Resource Management Act 1991
Section 4(9) Resource Management Act 1991
Section 4(10) Resource Management Act 1991
Section 338(4) Resource Management Act 1991
Waikato Regional Council v Ross (Des) Britten Ltd (DC Hamilton CRI-2009-024-572, 23 December 2011)
Section 309(3) Resource Management Act 1991
Sections 50 and 6, Criminal Procedure Act 2011
Only some Grade III offences include mens rea (criminal intent) requirements which must be proven by the prosecution.
Smith v Auckland City Council  NZRMA 276
Smith v Auckland City Council  NZRMA 276
International Society for Krishna Consciousness Inc v Rodney County Council (HC Auckland M1596/84, 2 May 1985)
Works Infrastructure Ltd v Taranaki Regional Council  NZRMA 517
Auckland Regional Council v Holmes Logging Ltd (HC Auckland CRI-2009-404-35, 17 June 2010)
Section 341(1) Resource Management Act 1991
Balance of probabilities means ‘more likely than not’. Harris v Douglas (DC Matamata CRN4058004427, 11 November 1994)
Section 341 Resource Management Act 1991
Section 341(3) Resource Management Act 1991
EDS v Mangonui County Council  3 NZLR 257
Fugle v Cowie  1 NZLR 104
Crafar v Waikato Regional Council (HC Hamilton CRI-2009-419-67, 13 September 2010)
E.g. Machinery Movers Ltd v Auckland Regional Council  1 NZLR 492
Machinery Movers Ltd v Auckland Regional Council  1 NZLR 492 and 500
Environmental and Resource Management Law (4th Edition) p1286
See Riddiford v South Wairarapa District Council (HC Wellington AP82/96, 23 August 1996), R v Conway (DC Auckland CRI-2008-004-19495 (No 2), 18 December 2009)
Section 7 Sentencing Act 2002
Section 8 Sentencing Act 2002
Auckland Regional Council v Times Media Group Ltd (DC Auckland CRN2084004885, 16 June 2003). The restorative justice package in that case included making a public apology, paying for research on health concerns relating to the defendant’s site, screening of the site and a donation to the local college. The Court took into account the amount expended through the restorative justice process when determining the appropriate fine.
Southland Regional Council v Antara Dairy Ltd (DC Invercargill CRI-2006-025-877, 10 November 2006)
Yates v Taranaki District Council (HC New Plymouth CRI-2010-443-8, 14 May 2010)
Waikato Regional Council v TGood Ltd (DC Auckland CRN100575500387, 18 August 2011)
Wilson v Fowler (HC Auckland AP203/98, 16 March 1999)
Section 107 Sentencing Act 2002
Section 106(3)(a) Sentencing Act 2002
Section 5 Costs in Criminal Cases Act 1967
Sections 343A – 343D Resource Management Act 1991
Last updated at 8:49AM on December 16, 2014