Enforcement – the ultimate test
A condition is valid if it can be enforced
If a condition cannot be enforced it becomes meaningless. Conditions must be clear and relevant.
Include monitoring or review conditions
The consent authority’s first job is to make sure that the conditions are complied with (see Woodland Farms v. Otamatea County A65/85).
Section 108(4) allows you to impose conditions that require the consent holder to give information to the consent authority at the consent holder’s expense.
These conditions can include:
- a monitoring or review clause
- specifying a period of time in which the activity and its effects can be reviewed.
Draft any monitoring or review clause carefully. Include specific details of timing and what is to be reviewed at the time of the hearing. The Court has noted its reservation about making the applicant do the monitoring in NZ Rail v. Marlborough District Council (1993) 2 NZRMA 449.
Conditions may also say that a suitably qualified person can certify the terms or standards of a condition, but it may not allow an arbitration or dispute resolution type function for that person (Olsen v. Auckland City Council & Others (unreported judgement HC Auckland, M764/97, 29 August 1997, Salmon J)). Refer to that person’s title specifically, for example “Manager, Resource Consents”.
Consent conditions can be reviewed
Section 127 of the RMA allows a consent holder to apply to change or cancel conditions in a consent in certain circumstances.
Section 128 allows a council to do the same in particular situations. For a detailed examination of the scope of s.127 and when it applies see Body Corporate 970101 v. Auckland City Council [2000] NZRMA 529 (CA).
Ease of enforcement – the test of clarity
The ultimate test of how well a condition has been drafted is the ease with which a consent authority or Court can enforce it. The clearer it is, the easier it will be to enforce – the consent holder will understand their obligations.
Any person can bring enforcement proceedings
Section 316(1) of the RMA allows “any person” to bring proceedings to enforce compliance with a consent and its conditions. The consent authority has a public responsibility to enforce the conditions imposed on a consent.
Consent authorities and the public can apply for enforcement orders
Enforcement provisions of the RMA (sections 314-321) cover situations where consent conditions are breached.
Consent authorities most commonly bring enforcement proceedings under section 316.
Members of the public can also apply to the Court for an enforcement order seeking compliance with a consent condition (see Stop CRA Pollution v. NZ Refining Co (1993) 2 NZRMA 586).
But if a condition involves certification, it is not a condition open to enforcement by a member of the public. The case below shows this distinction between compliance conditions and certifier conditions.
In Foodstuffs (South Island) Ltd v. Christchurch City Council (unreported judgement, HC Christchurch, AP27/98, Hansen J, 31 March 1999), the Court held that a condition relating to traffic was not open to enforcement by the public because it involved certification by a council officer. His Honour Justice Hansen held at page 22 that:
In my view it is a certifier clause, and is not subject to the principles of drafting applied to compliance conditions in cases such as the Stop CRA case. Therefore it is not a condition open to enforcement by a member of the public under Part X of the Act, and the need for it to be clearly understood by members of the public does not exist.
Tip – use qualifiers to create certainty
Councils may have difficulties when using phrases like “generally in accordance with” and have started using “shall be in accordance with”.
Another example is the use of words like “reasonable” in conditions like the following example: The discharge shall not cause any of the following effects in the stream after reasonable mixing.
In order for there to be more certainty over what this means, use a qualifier to explain the term “reasonable mixing”; for example “reasonable mixing” shall be deemed to have occurred within 20 metres of the effluent discharge point (the outfall) to the stream as measured downstream in the active channel.
