Application for Enforcement Order
The relevant sections of the RMA are sections 314 to 319 and 321. The scope of an enforcement order is set out in section 314.
An application for enforcement order should be prepared by the lawyer acting for council. The application should be supported by evidence in the form of affidavits.
The standard of proof is on the balance of probabilities.
Application for enforcement order for contravention of sections 15(1)(a)-(d) and 13(1)(d)
A council can apply to the Environment Court for an enforcement order if there is a contravention of sections 15(1)(a), (b), (c), (d) or 13(1)(d) requiring the person responsible for the storage, dumping and disposal of end-of-life tyres to:
- stop bringing further tyres on to the site - section 314(1)(a)(i)
- remove the tyres - section 314(1)(b)(i).
Application for enforcement order to enforce the duty in section 17 RMA
A council can apply to the Environment Court for an enforcement order to enforce the duty in section 17 RMA requiring the person responsible for the storage, dumping and disposal of end-of-life tyres to:
- stop bringing further tyres onto the site - section 314(1)(a)(ii)
- remove the tyres - section 314(1)(b)(ii).
When the owner or occupier of the site is not responsible for the storage, dumping or disposal of the tyres
A council can apply to the Environment Court for an enforcement order pursuant to section 314(1)(da) if there is a contravention of sections 15(1)(a), (b), (c), (d) or 13(1)(d) requiring the owner or occupier of the site to remove the tyres even if the owner or occupier was not responsible for the storage, dumping and disposal of the tyres if removal of the tyres is necessary to avoid, remedy, or mitigate any actual or likely adverse effect on the environment.
Case law
The Court of Appeal in Watercare Services Ltd v Minhinnick [[1998] 1 NZLR 294; (1997) 3 ELRNZ 511; [1998] NZRMA 113 (CA).] sets out four steps for establishing whether an enforcement order should be made under section 314(1)(a)(ii) - whether an activity is noxious, dangerous, offensive or objectionable. In summary these are:
- that the Court must be satisfied that the applicant's assertion is honestly made;
- that the subject matter of the application is or is likely to be noxious, dangerous, offensive or objectionable; and
- if it is that it is of such an extent that it is likely to have an adverse effect on the environment;
- if the first three steps are established, whether in all the circumstances the Court's discretion should be exercised in favour of making the enforcement order sought or otherwise.
The Court held that at the second and third steps the Court is acting as the representative of the community at large. It must weigh all the relevant competing considerations and ultimately make a value judgement on behalf of the community as a whole.
