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Your Guide to the Resource Management Act

Preface

1 Introduction

2 Who, How and What

3 Understanding the Resource Consent Process

4 Getting Involved in Resource Management Decision-making

5 Taking Action to Protect the Environment

6 Where to Go for Further Guidance

Appendix 1: Matters of National Importance and Other Matters

Appendix 2: Administrative Boundaries for City, District and Regional Councils

Appendix 3: Administrative Boundaries for the Department of Conservation

Appendix 4: Glossary of RMA Terms

Appendix 5: Glossary of Māori Terms

5 Taking Action to Protect the Environment

5.1 Everybody is a steward

The RMA places a responsibility on all New Zealanders to act in an environmentally responsible way - to be a steward of the environment. The RMA is an enabling piece of legislation, in that it places few limitations on the tools that decision-makers can use to address environmental issues. If anything, it encourages innovative and cost-effective solutions to particular problems.

While the RMA does not direct which options or tools decision-makers should adopt, it does allow for public input into the choices that are made. Decision-makers are expected to consult with the people who will be most affected by the use of those tools. Your opportunities to influence the framework of resource management through the plan production and resource consent process have been described in Section 4 of this guide.

The job of environmental protection is not left entirely to specialist agencies acting on behalf of a passive community. The RMA actively encourages New Zealanders to take responsibility for sustainably managing the environment. On the one hand, it creates obligations which are the basis for the RMA's enforcement provisions. On the other hand, it provides opportunities for people to take direct action to protect the environment. Your obligations and opportunities are described below.

5.2 Addressing your obligations

The RMA provides enforcement tools to ensure any breaches or irresponsible behaviour in terms of the use of natural and physical resources are dealt with appropriately.

5.2.1 Abatement notices

Councils can issue written abatement notices requiring environmental nuisances to be fixed or actions taken, or ceased, to ensure compliance with the RMA. Abatement notices can be issued regardless of whether there is a valid resource consent if the activity is so noxious, dangerous, offensive or objectionable that it is likely to have an adverse effect on the environment. An activity has an adverse effect on the environment if a reasonable person would be offended or find an activity objectionable.

If you are served with an abatement notice you must take action within the period specified in the notice. This allows you to find the most appropriate way of addressing the problem. You have a right to appeal the issuing of an abatement notice to the Environment Court. Lodging an appeal may act as a stay on the notice (the notice is put on hold until the appeal is dealt with) if the activity you are engaged in complies with the RMA. Otherwise, you can apply to the Environment Court for a stay. If you fail to act on an abatement notice you will be committing an offence under the RMA. Nearly 900 abatement notices were issued by councils during the 2003/04 financial year.

5.2.2 Enforcement orders

Anybody can apply to the Environment Court for an enforcement order that, among other things, can require a person to stop an activity that contravenes the RMA, to do something to ensure compliance, or to avoid adverse effects. Enforcement orders are intended to deal with more serious and ongoing pollution problems than those covered by abatement notices. All directly affected parties (including the person to whom the order relates) must be publicly notified by the applicant, and the Environment Court will hold a hearing to allow the parties to be heard. The Environment Court then makes a decision. Once again, failure to comply with an enforcement order constitutes an offence.

To deal with emergency situations, anybody can apply for an interim enforcement order, which can be issued by an Environment Judge sitting alone or as a District Court Judge. This stays in force until it is cancelled or a full enforcement order is determined through the normal procedure. Such orders can only be issued when significant environmental damage is happening or is about to happen.

5.2.3 Excessive noise directions

Excessive noise is often short-lived, but can cause great disturbance. Council enforcement officers need to move quickly to deal with complaints triggered by, for instance, loud stereos at parties. The RMA allows enforcement officers to issue excessive noise directions. Excessive noise is defined as, among other things, any noise that can unreasonably interfere with the peace, comfort and convenience of any person. The directions can be issued either verbally or in writing. If you fail to immediately comply with a direction, your equipment can be turned off or seized. Common sense dictates that you should respond positively to reasonable complaints when your neighbours first make them.

5.2.4 Infringement offences

The RMA allows council enforcement officers to issue infringement notices which detail the nature of the alleged offence and state a fee that you must pay to the council. Infringement offences aim to make people more aware of the adverse effects of their activities through imposing a fine. In this respect, they are a little like the traffic infringement notices issued by New Zealand Police.

5.2.5 Other mechanisms

The RMA provides other mechanisms for dealing with immediate environmental problems. In the event of a serious water shortage, a regional council is able to issue a direction requiring any use of a water source (such as water takes, diversions or as a destination for discharges) to be restricted or suspended for a maximum of 14 days. This can happen even if the user in question has obtained a resource consent. Consent authorities are also able to enter any place and carry out emergency works to prevent an adverse effect on the environment. The cost of carrying out such works can then be recovered from the person responsible for causing the original problem.

The RMA also sets out the way in which enforcement officers are appointed, their powers of entry, their ability to demand information and procedures for returning property.

5.2.6 Offences

Under the RMA every person commits an offence if what they do or allow to happen is against the general duties and restrictions that the RMA establishes. It is also an offence to contravene the terms of an abatement notice, enforcement order or other enforcement tool. When somebody wilfully obstructs, hinders, resists or deceives any person with statutory powers (such as an enforcement officer) or fails to act cooperatively before the Environment Court they also commit an offence. Procedures relating to offences against the RMA are heard by an Environment Court Judge sitting alone in the District Court or by a District Court Judge given permission by the Chief District Court Judge.

5.2.7 Liability

In terms of liability, it does not matter that a person was unaware of the offence or that it was carried out unintentionally. The RMA does not require proof of intention; only that the person carried out the offence. The onus is therefore placed on the person responsible for the offence to make themselves aware of their environmental obligations. Protestations of ignorance are not an acceptable defence. Accordingly, contractors, consent holders and other parties may all be liable for such offences. Only the following limited defences against prosecution are offered under the RMA:

• that the action: had to be taken to save or protect health or lives, prevent serious property damage or avoid adverse environmental effects; that the actions were reasonable in the circumstances; and that the person responsible really did attempt to address the effects of their actions
• that the offence happened because of an event beyond the control of the person (such as natural disaster) which could not have reasonably been foreseen and that, once again, the person took action to address the effects of the event.

In addition, the RMA is quite clear that employers, company directors and management may be held personally liable for offences for which they gave permission and which they knew, or could reasonably be expected to have known, were to be or were being committed. An employer, company director or manager may have a defence against being prosecuted for the actions of another person, for example an employee, if they can show:

• they did not know, or could not reasonably have been expected to know, that the offence was being committed
• they took all reasonable steps to prevent or stop the offence.

5.2.8 Penalties

Significant penalties may be imposed on a person who commits an offence under the RMA. Depending on the type of offence, those who are convicted could be jailed for up to two years or face a fine not exceeding $200,000. If the offence continues, further fines of up to $10,000 per day may be imposed. Fines are paid to the local authority that started the prosecution.

Since the RMA came into force, the Courts have convicted a considerable number of individuals and companies under its provisions and imposed fines of tens of thousands of dollars in individual cases. Imprisonment has also been imposed on at least one occasion for a repeat offender.

5.3 Taking a proactive approach

The risks associated with acting in an environmentally irresponsible manner are clear. The RMA establishes a firm basis for liability, and provides only limited defences to people prosecuted for offences under the RMA. The penalties are potentially severe. The fines imposed to date are only part of the picture. Court and solicitor costs can be awarded against defendants if convicted. In addition, the Court may require offenders to take remedial action to repair the damage they have caused. The costs of such remediation can be well in excess of the fines that are imposed.

More difficult to quantify but potentially even more damaging, is the impact of a conviction on the reputation of a company or individual. This can be highly detrimental as, increasingly, consumers are making product choices on the basis of a company's environmental standing.

5.4 Protecting the wider environment

A number of formal opportunities under the RMA allow people to take a positive and proactive role in protecting parts of the environment outside their own immediate interests or landholdings.

5.4.1 Applying for an enforcement order

The process of issuing an enforcement order has already been described earlier in this section. Applying to the Environment Court for an enforcement order is certainly an option for anybody concerned about a serious environmental problem. You should be aware that the applicant has the burden of proving the adverse effect on the environment and a failure to comply with the relevant requirements. Applications to the Environment Court should not be made lightly, and you should consider all the options available to you before proceeding.

5.4.2 Applying for a water conservation order

Any person may apply to the Minister for the Environment for a water conservation order. Such orders aim to recognise the outstanding amenity or intrinsic values water provides, in either a natural or modified state. They can be used to preserve that natural state or protect characteristics such as the water body's value as a habitat or fishery, its wild and scenic nature, or its value for recreational, historic, spiritual, cultural or scenic purposes. A water body may also be particularly significant to Māori. Orders may be applied over rivers, lakes, streams, ponds, wetlands, geothermal water or aquifers. If granted by the Minister, a water conservation order can restrict or prohibit takes, discharges and other uses of the water.

Applications to the Minister must set out the reasons for the application. If the Minister does not reject the application, then a special tribunal must be appointed to hear and report on the application. The tribunal is responsible for publicly notifying the application, calling for submissions, holding a hearing and reporting on its decisions. Submissions must be lodged within 20 working days of public notification. Any person may make a submission, and has a further right of submission on the tribunal's decision to the Environment Court. The Environment Court may hold an inquiry, but in any case must report to the Minister recommending the tribunal's report be accepted, rejected or amended.

If the Minister does not accept the Court's recommendation to proceed with the order then they must table this decision, along with reasons, in the House of Representatives. If, however, the Minister accepts the Court's recommendation to proceed then they recommend to the Governor-General that the order be made.

While an order cannot affect existing resource consents, the affected councils must take it into account in preparing policy statements and plans and considering future applications for resource consent. Water conservation orders were recently issued for the Motueka and Mohaka Rivers.

5.4.3 Applying for heritage protection authority status

Heritage protection orders are similar to designations in that they are a way of incorporating notices of particular requirements into district plans. Heritage protection orders are intended to protect features and places of:

• special interest, character, intrinsic or amenity value or visual appeal
• cultural, architectural, historical, scientific or ecological interest
• special significance to tāngata whenua for spiritual, cultural or historic reasons.

Only heritage protection authorities can issue notices for heritage protection orders. The RMA identifies Ministers of the Crown, councils and the New Zealand Historic Places Trust as heritage protection authorities. It also allows any body corporate to apply to the Minister for the Environment for status as a heritage protection authority. Body corporates include companies, incorporated societies, charitable trusts and Māori incorporations. Before approving a body as a heritage protection authority, the Minister must be satisfied that it will be able to discharge its functions effectively (including from a financial perspective). The Minister can revoke an approval if unhappy with the performance of a heritage protection authority.

The process for notifying a district or city council of a heritage protection order is similar to that for designations (see Section 4.1.2 of this guide). The same notification, submission-making, hearing, recommendation, decision, appeal and compulsory acquisition provisions apply. Once a requirement for a notice has been issued, no one can do anything that would contravene the order. The heritage protection authority does not need to own the land over which it seeks an order.

Since the enactment of the RMA, four body corporates have been made heritage protection authorities, including the Royal Forest and Bird Protection Society and the Erskine College Trust.