Section 17 RMA
Territorial authority position
If a territorial authority has a plan that does not have rules about storage, dumping and disposal of tyres then it cannot take enforcement action for contravention of section 9(1) of the RMA as there is no contravention.
The territorial authority can, however, enforce the duty imposed by section 17 if the criteria in section 17(3) of the RMA is met.
Regional council position
If the unauthorised storage, dumping and disposal of end-of-life tyres at a site does not contravene sections 15(1) or 13(1)(d) of the RMA, a regional council cannot take enforcement action for contravention of those sections.
If a regional council has a plan that does not have rules about storage, dumping and disposal of tyres then it cannot take enforcement action for contravention of section 9(3) of the RMA as there is no contravention.
The regional council can, however, enforce the duty imposed by section 17 if the criteria in section 17(3) of the RMA is met.
17. Duty to avoid, remedy, or mitigate adverse effects
(1) Every person has a duty to avoid, remedy, or mitigate any adverse effect on the environment arising from an activity carried on by or on behalf of that person, whether or not the activity is in accordance with a rule in a plan, a resource consent, a designation, section 10, section 10A, or section 20A.
(2) The duty referred to in subsection (1) is not of itself enforceable against any person, and no person is liable to any other person for a breach of that duty.
(3) Notwithstanding subsection (2), an enforcement order or abatement notice may be made or served under Part XII to -
(a) Require a person to cease, or prohibit a person from commencing, anything that, in the opinion of the Environment Court or an enforcement officer, is or 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; or
(b) Require a person to do something that, in the opinion of the Environment Court or an enforcement officer, is necessary in order to avoid, remedy, or mitigate any actual or likely adverse effect on the environment caused by, or on behalf of, that person.
(4) Subsection (3) is subject to section 319(2) (which specifies when an Environment Court shall not make an enforcement order).
The duty in section 17 is enforceable by an enforcement order or an abatement notice requiring a person to:
- cease, or prohibit a person from commencing, anything that, in the opinion of the Environment Court or an enforcement officer, is or 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; or
- do something that, in the opinion of the Environment Court or an enforcement officer, is necessary in order to avoid, remedy, or mitigate any actual or likely adverse effect on the environment caused by, or on behalf of, that person.
Section 17(4) provides that section 17(3) is subject to section 319(2) which specifies when an Environment Court shall not make an enforcement order. Section 319(2) provides that the Environment Court must not make an enforcement order if the adverse effects in respect of which the enforcement order is sought were expressly recognised by the person who approved the plan, or granted the resource consent, at the time of the approval or granting, as the case may be.
Criteria in section 17 RMA
Section 17 can only be relied on by councils if the criteria in section 17(3) is met.
Section 17(3)(a)
Section 17(3)(a) has two limbs. In order to require a person to cease bringing further tyres on to a site, both limbs have to be established.
First limb
The council has to establish that the storage, dumping or disposal of the tyres is likely to be one or more of the following:
- noxious
- dangerous
- offensive
- objectionable.
Second limb
The council has to establish that the aspects are noxious, dangerous, offensive, or objectionable to such an extent that it has or is likely to have an adverse effect on the environment.
Section 17(3)(b)
Section 17(3)(b) has two limbs. In order to require a person to remove tyres from a site, both limbs have to be established.
First limb
The council has to establish that removal of the tyres is necessary in order to:
- avoid and/or
- remedy and/or
- mitigate
any actual or likely adverse effect on the environment.
Second limb
The council has to establish that the actual or likely adverse effect on the environment is caused by, or on behalf of that person. This requirement means that a council cannot take action to enforce the duty in section 17:
- for the dumping of end-of-life tyres on public land if the council cannot establish who is responsible for the dumping
- for the 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.
Evidence required to meet the criteria in section 17 RMA
Actual adverse effects
The council will be able to obtain evidence to establish the criteria in section 17(3) where there are actual adverse effects that are noxious, dangerous, offensive, or objectionable. Examples are:
- a fire in a large stockpile of tyres at a site where people in neighbouring properties are adversely affected by the smoke from the fire
- the stockpile of tyres is a breeding ground for mosquitoes, the numbers of mosquitoes are extremely high and neighbours are adversely affected by the mosquitoes
- the stockpile of tyres is a habitat for rats and there is an orchard nearby that provides a food source for the rats. The people in neighbouring properties and the orchard are adversely affected by the rats.
Likely adverse effects
The council may be concerned about the possibility of a tyre fire. The threshold for taking enforcement action under section 17 is 'likely'. This means that the council, to establish the criteria in section 17(3), has to establish:
- that the risk of fire is 'likely'; and
- if there is a fire it is likely that the fire will have an adverse effect on the environment.
In order to establish that the risk of fire is 'likely', the council should consider the following:
- The Hamilton Fire District has "Recommendations for the storage
of used vehicle tyres" (see appendix). The topics in these recommendations
are a potential guide to establishing whether the risk of fire is
likely and include the following:
- separation distances
- water supply for fire fighting
- emergency access roads.
- Site security and visibility - can a vandal enter and light a fire?
- Whether the site or locality has a history of arson.
- Size of the stockpile of tyres.
- Other activity that occurs at the site and near the site and whether this activity increases the risk of fire; eg, are any fires being deliberately lit at the site or on neighbouring properties?
- Whether there is native bush, other vegetation, or forest nearby that could catch on fire and spread to the tyre stockpile.
In order to establish that if there is a fire then it is likely that the fire will have an adverse effect on the environment, the council should consider the following:
- Size of the stockpile of tyres.
- Proximity of the neighbours.
- Who the neighbours are and how sensitive they or their businesses are to the effects of fire; eg, retirement home, food processing activity.
- Whether the neighbours can be evacuated quickly in the event of a tyre fire.
- Whether there is a waterway on the site or nearby that contaminants from the fire could enter.
- Whether there is native bush, other vegetation, forest nearby that could catch on fire.
