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Enforcement Action under the Resource Management Act 1991 to Deal with Unauthorised Storage, Dumping and Disposal of End-of-Life Tyres

Acknowledgements

Introduction

Sections 13(1)(d) and 15(1) RMA

Section 17 RMA

Enforcement Mechanisms

Abatement Notice

Infringement Notice

Application for Enforcement Order

Application for Interim Enforcement Order

Failure to Comply with an Enforcement Order

Prosecution

Section 330 RMA

Hypothetical Scenarios

Appendix 1: Hamilton Fire District Recommendations for the Storage of Used Vehicle Tyres

Appendix 2A: Abatement Notice

Appendix 2B: Infringement Notice

Appendix 2C: Abatement Notice

Appendix 2D: Infringement Notice

Introduction

This guide provides advice on practical and effective enforcement action which can be taken by councils under the Resource Management Act 1991 (RMA) to deal with unauthorised storage, dumping and disposal of end-of-life tyres in the absence of adequate planning provisions and bylaws.

The problem

The situations of concern are:

• unauthorised storage or disposal of end-of-life tyres on land by the owner of that land
• unauthorised storage or disposal of end-of-life tyres on land by an individual who has direct control over that land
• the dumping of end-of-life tyres on public land
• the dumping of end-of-life tyres on private land without the direct permission of the owner.

Solution

The solution to the problem of unauthorised storage, dumping and disposal of end-of-life tyres is removal and proper disposal of the tyres and in some circumstances it is also necessary to take steps to ensure that no further tyres are brought on to the site.

Councils in most cases have the option to resolve the problem of unauthorised storage, dumping and disposal of end-of-life tyres by taking enforcement action under the RMA.

No adverse effects

In some circumstances, councils will not be able to resolve the problem of unauthorised storage, dumping and disposal of end-of-life tyres by taking enforcement action under the RMA. The circumstances will be where there is no contravention of section 15(1) or 13(1)(d) and where the council is not able to establish that the storage, dumping or disposal of the tyres is likely to be noxious, dangerous, offensive or objectionable to such an extent that it has or is likely to have an adverse effect on the environment.

Difficulties

There are also difficulties for enforcement where end-of-life tyres are dumped on to public land and on to private land without the direct permission of the owner:

• Enforcement action under the RMA cannot be taken for the dumping of end-of-life tyres on public land if the council cannot establish who is responsible for the dumping.
• In situations of dumping of end-of-life tyres on private land without the direct permission of the owner where the council cannot establish who is responsible for the dumping, enforcement action can only be taken by a regional council (and not by a territorial authority) against the owner or occupier to require removal of the tyres:
  • if there is a contravention of sections 15(1)(a), (b), (c) or (d) or 13(1)(d) of the RMA and
  • if removal of the tyres is necessary to avoid, remedy, or mitigate any actual or likely adverse effect on the environment.

Enforcement is limited to an abatement notice and an application for enforcement order. However, other mechanisms can be used for follow-up action in the event of non-compliance with an abatement notice or an enforcement order.

Enforcement

Enforcement acts as a deterrent and encourages compliance with the RMA. There are two categories of enforcement:

• informal enforcement - this category of enforcement is the most commonly used by local authorities. Informal enforcement includes education and discussion with potential offenders and offenders
• formal enforcement - use of the formal mechanisms under Part XII of the RMA. The range of enforcement mechanisms includes abatement notices and infringement notices, which are the lowest level enforcement mechanisms, and prosecution, which is the highest-level mechanism. The mechanisms can be used where an offence has been committed. Some of the mechanisms can also be used where an offence is likely to be committed or an activity is likely to have an adverse effect on the environment.

This guide provides advice on formal enforcement, namely:

• how to select the appropriate enforcement mechanism under Part XII of the RMA to deal with unauthorised storage, dumping and disposal of end-of-life tyres,
• how to correctly use the mechanism selected.

Co-ordinated approach

In order to resolve the problem of unauthorised storage, dumping and disposal of end-of-life tyres, it is suggested that from the outset, the territorial authority liaises and communicates with the regional council and vice versa, and they work together.

When dealing with unauthorised storage, dumping and disposal of end-of-life tyres:

• If the criteria in section 17(3) of the RMA is met, territorial authorities and regional councils can take enforcement action to enforce the duty in section 17.
• If there is contravention of sections 15(1)(a) to (d) and 13(1)(d) of the RMA, regional councils can take enforcement action for this contravention.

Sections 13(1)(d), 15(1) and 17 RMA

This guide explains sections 13(1)(d), 15(1)(a) to (d) and 17 of the RMA and how these sections can be used by councils to take enforcement action to deal with unauthorised storage, dumping and disposal of end-of-life tyres. Each enforcement mechanism is explained firstly with reference to sections 13(1)(d) and 15(1)(a) to (d) of the RMA and then with reference to section 17 of the RMA.