Abatement Notice
Abatement notices can only be issued by council enforcement officers. An abatement notice is a warning to the recipient that he/she is contravening the provisions of the RMA. The relevant sections of the Act are sections 322 to 325A.
Section 324 sets out the contents of an abatement notice and provides that the notice shall be in the prescribed form. The form for abatement notices was changed in August 2003. [Form 48 in Schedule 1 of the Resource Management (Forms, Fees, and Procedure) Regulations 2003.] The new form should be used.
Section 322(4) provides that an abatement notice shall not be served unless the enforcement officer has reasonable grounds for believing that the circumstances in section 322(1) or (2) exist.
Abatement notice for contravention of sections 15(1)(a)-(d) and 13(1)(d)
An abatement notice can be issued for contravention of sections 15(1)(a), (b), (c) and (d) and 13(1)(d) requiring the recipient to remove the tyres and to cease importation of further tyres on to the site:
- The period within which the action must be taken or cease must be a reasonable period and can be less than seven days.
- If an appeal is filed, the appeal does not act as a stay.
- The recipient can apply to the Court for a stay.
- The abatement notice must specify the subsection of section 322 which is relied upon by the enforcement officer - in this case (1)(a)(i), (1)(b)(i) and (1)(b)(ii).
Abatement notice to enforce the duty in section 17 RMA
An abatement notice can be issued to enforce the duty in section 17 RMA requiring the recipient to remove the tyres and to cease importation of further tyres on to the site:
- The recipient must be given at least seven days to comply.
- If the recipient files an appeal, the appeal acts as a stay.
- The abatement notice must specify the subsection of section 322 that is relied upon by the enforcement officer - in this case (1)(a)(ii).
Explanation of how an abatement notice can be issued under section 322(1)(a)(ii) to require the recipient to remove tyres
The wording of 322(1)(a) and 322(1)(b) is different:
- Section 322(1)(a) allows for issue of an abatement notice to require " a person to cease, or prohibiting that person from commencing ...".
- Section 322(1)(b) allows for issue of an abatement notice to require a "person to do something ...".
Case law
A decision of the High Court, Zdrahal v Wellington City Council [[1995] 1 NZLR 700; (1994) 2 HRNZ 196; [1995] NZRMA 289 (HC).] is authority that an abatement notice can be issued under section 322(1)(a)(ii) to require a person to take steps to cease an activity.
An abatement notice was issued to Mr Zdrahal and Ms Moffatt under section 322(1)(a)(ii), requiring them to remove or to paint out on a wall and to remove from a window two swastikas on the grounds that these swastikas were offensive and objectionable in that they were likely to have an adverse effect on the environment.
On appeal to the High Court one of the grounds of the appeal to the High Court was that:
- the wording of section 322(1)(a) meant that an abatement notice can only be issued to stop something that is being done or to prohibit something from being commenced
- because the swastikas had already been painted there was nothing that the enforcement officer could require the appellants to cease or to prohibit from commencing. The action which was alleged to be offensive was completed and so the words of the Act were no 'longer applicable'. Nothing remained to be prohibited or that in the ordinary use of the English language could cease.
The High Court rejected this argument and held that section 17(3) and section 322 should be read together to enlarge the application of section 322 to include a requirement to cease an activity which may have an adverse effect or which may be offensive to that extent. The Court held that:
"The provisions of s 322 are to be given a fair, large and liberal construction to ensure the object and the purposes of the Act as a whole and are not to be narrowly construed as by a pedantic grammarian."
When the owner or occupier of the site is not responsible for the storage, dumping or disposal of the tyres
Section 322(1)(b)(ii) allows an enforcement officer to issue an abatement notice against an owner or occupier of a site requiring the owner or occupier to remove the tyres even if the owner or occupier was not responsible for the storage, dumping and disposal of end-of-life tyres if removal of the tyres is necessary to avoid, remedy, or mitigate any actual or likely adverse effect on the environment.
Detail required for an abatement notice
An abatement notice must include the following detail:
- action required to be taken or ceased or not undertaken - precise details should be given
- location - the description of the location must be given with sufficient accuracy so that the recipient knows the locality to which the abatement notice is intended to relate
- reasons for the notice - the reasons should be explained clearly and information should be provided that covers the elements of the subsection of section 322 that the notice is issued under.
Examples of abatement notices are provided in Appendix 2A and 2C on pages 28, 29 and 32.
Case law
Waikato RC v Huntly Quarries [[2004] NZRMA 32.]
The defendants were charged with contravention of an abatement notice issued in respect of stormwater discharge from a quarry. The notice was issued under section 322(1)(b). Judge McElrea found that the notice was invalid because it did not state reasons that cover both elements of section 322(1)(b). As a result the charges against the defendants were dismissed.
