Sections 13(1)(d) and 15(1) RMA
If the unauthorised storage, dumping and disposal of end-of-life tyres at a site contravenes sections 15(1)(a) to (d) and 13(1)(d) of the RMA, regional councils can take enforcement action for this contravention.
Territorial authorities cannot take enforcement action for contravention of sections 15(1)(a) to (d) and 13(1)(d) of the RMA when the factors in these sections are not within the functions of territorial authorities as specified in section 31 of the RMA.
Section 13(1)(d) RMA
13. Restriction on certain uses of beds of lakes and rivers
(1) No person may, in relation to the bed of any lake or river, -
...
(d) Deposit any substance in, on, or under the bed; or
....
unless expressly allowed by a rule in a regional plan and in any relevant proposed regional plan or a resource consent.
Section 15(1) RMA
15.Discharge of contaminants into environment
(1) No person may discharge any -
(a) Contaminant or water into water; or
(b) Contaminant on to or into land in circumstances which may result in that contaminant (or any other contaminant emanating as a result of natural processes from that contaminant) entering water; or
(c) Contaminant from any industrial or trade premises into air; or
(d) Contaminant from any industrial or trade premises on to or into land -
unless the discharge is expressly allowed by a rule in a regional plan and in any relevant proposed regional plan, a resource consent, or regulations.
Section 15(1) prohibits the discharge of contaminants unless there is some express authority for it. Section 13(1)(d) prohibits deposit of any substance in, on, or under the bed of a lake or river, unless there is some express authority for it.
The storage, dumping and disposal of end-of-life tyres may be in contravention of section 15(1) and/or section 13(1)(d) if:
- the regional plan or proposed regional plan does not expressly allow for storage, dumping and disposal of end-of-life tyres, and
- a resource consent does not expressly allow for storage, dumping and disposal of end-of-life tyres.
Are end-of-life tyres a contaminant?
Contaminant
The word 'contaminant' is defined in section 2 of the RMA.
'Contaminant includes any substance (including gas, odorous compounds, liquids, solids, and micro-organisms) or energy (excluding noise) or heat, that either by itself or in combination with the same, similar, or other substances, energy, or heat -
(a) When discharged into water, changes or is likely to change the physical, chemical, or biological condition of water; or
(b) When discharged on to or into land or into air, changes or is likely to change the physical, chemical, or biological condition of the land or air on to or into which it is discharged:'
Case law
The meaning of 'contaminant' was considered by the High Court in Works Infrastructure Ltd v Taranaki Regional Council. [16/11/01, Judge Thompson, DC New Plymouth CRN 0043008470.] The defendant appealed against a conviction under section 15(1)(d) RMA. The prosecution under section 15(1)(d) RMA concerned bitumen emulsion which had leaked from storage drums after being transported from the Works Infrastructure ('Works') industrial site and then dumped into a pit on farmland.
One of the grounds of appeal was that the District Court erred in finding that the bitumen emulsion was a 'contaminant'. The appellant argued that the discharge had produced a negligible effect on the land and did not constitute a change to the condition of the land as required by the definition of 'contaminant' under section 2 RMA. The Court held that the issue to be determined was the fact of change, not its extent or effect. Accordingly, the only assessment required was whether the bitumen emulsion changed the condition of the land.
As an alternative ground of appeal, the appellant argued that a de minimis defence was available as the environmental consequence of the discharge was so insignificant that the intervention of the criminal law was not justified. The Court held that the de minimis defence was unavailable for these reasons:
- The de minimis principle does not apply as a defence under criminal law.
- Admission of the defence would be contrary to public policy as it
would:
- allow the Court to second-guess the legislature where it has expressly provided for the intervention of the criminal law. The degree of change is only relevant to the decision on whether to prosecute or to penalty
- open the door to variability in the way the RMA is interpreted.
- It is change of composition of the soil, which matters, not a qualitative view of effect.
- The offence is one of strict liability, therefore the prosecution does not have to prove fault. Introduction of the de minimis principle would cut across the underlying scheme of the RMA.
End-of-life tyres themselves and discharges from the tyres may be regarded as contaminants in some circumstances.
Industrial or trade premises
The term 'industrial or trade premises' is defined in section 2 of the RMA.
Industrial or trade premises means -
(a) Any premises used for any industrial or trade purposes; or
(b) Any premises used for the storage, transfer, treatment, or disposal of waste materials or for other waste-management purposes, or used for composting organic materials; or
(c) Any other premises from which a contaminant is discharged in connection with any industrial or trade process -
... but does not include any production land.
Case law
The High Court in Works Infrastructure also considered the meaning of "any industrial premises on to or into land" in section 15(1)(d). The appellant argued that the discharge took place from the farm itself as the bitumen was transported 'from' the Works industrial site to the farm by truck. The Court held that in the plain words of section 15(1)(d), the bitumen emulsion had emanated 'from' the Works industrial premises and not 'from' the truck or the farm. It also held that the words "from the industrial premises onto or into land" in section 15(1)(d) do not require that the source premises and receiving land must be physically contiguous or adjacent.
End-of-life tyres that are stored, dumped and disposed without express authority at a site are likely to have come from industrial or trade premises. The Works Infrastructure case is authority that it is the original source of the contaminant that is relevant. The original source of end-of-life tyres will in most cases come within the definition of industrial or trade premises.
The site on which end-of-life tyres are stored may come within the definition of 'industrial or trade premises'.
In what circumstances will there be a contravention of sections 15(1) and 13(1)(d)?
The following are examples of circumstances where there will be a contravention of sections 15(1)(a), (b), (c) or (d) or 13(1)(d), where the activity is not expressly allowed by a rule in a regional plan, a proposed regional plan or a resource consent:
- Tyres dumped in a stream is a contravention of section 15(1)(a) and is also a contravention of section 13(1)(d).
- Tyres dumped on land near water in circumstances which may result in contaminants emanating as a result of natural processes from the tyres entering water is a contravention of section 15(1)(b).
- A fire in a stockpile of tyres on a site that is industrial or trade premises is a contravention of section 15(1)(c).
- Tyres stored on land where the source of the tyres is industrial or trade premises is a contravention of section 15(1)(d).
Enforcement mechanisms
The diagram below sets out the enforcement mechanisms a regional council can use where there is a contravention of sections 15(1)(a), (b), (c) or (d) or 13(1)(d).
