Prosecutions under the RMA
As a landowner, resource consent holder or developer you are exposed to risk of prosecution under the RMA through the actions of your employees, contractors and sub contractors. In this article we will explain what these risks are and how you can protect yourself from them.
More prosecutions, higher penalties
Under the RMA you can be prosecuted for a number of offences, most of which relate to a release of contaminants or a breach of a plan or resource consent. However the majority of prosecutions in the last four years have related to discharges to water. This can be linked to the general public’s mounting concern about decreasing water quality of waterbodies throughout New Zealand.
Regional Councils are responding by introducing more stringent planning regulation of land use activities and increasing the number of RMA prosecutions against landowners and land managers. According to MfE the average number of prosecutions per year has increased from 39 to 101 over the last 20 years, with average total fine increasing from $6,500 to $21,622. Further, in 2009 the penalties were significantly lifted from $200,000 (for individuals and companies) to $300,000 for a person and $600,000 for a corporation.
Liability for acts of third parties
Most prosecutions succeed because under the strict liability provisions of the RMA it is not necessary for the Council to prove that the offending was intentional. Further, landowners, consent holders and land developers can be prosecuted for mistakes made by third parties working on site. This means that you can be liable for the acts and omissions of employees, contractors or sub-contractors even though you are not the primary cause of the discharge.
In Canterbury this is of particular relevance to the dairy industry and land development sector. In the dairy industry, a common scenario is where a sharemilker (the third party) causes a discharge of effluent through an error in practice. The landowner or dairy farmer owns the land and holds the resource consents, but is not involved in the day-to-day management or operation of the farm.
In this scenario, despite having little or no involvement with the site, the farmer will be deemed to have permitted the discharge if there is awareness of facts from which a reasonable person would recognise that a discharge could occur. Failure to investigate and take appropriate preventative steps amounts to allowing an escape, should it subsequently occur.
In the following cases the discharge was caused by a third party, whose actions were not directed by the landowner. However, due to their position of responsibility and control, the land owner or operator was still held liable for the discharge.
CRC v Steel Bros dealt with a diesel spill into the Heathcote River. A third person entered the site and stole diesel from Steel Bros. They left the pump on and diesel was discharged. Immediate steps were taken by Steel Bros to extract the diesel and remediate the site. The Court held that the defendant had failed to undertake necessary and obvious steps to secure the site, which would have prevented the discharge. Steel Bros was accordingly found liable.
In Auckland Regional Council v AFFCO, AFFCO was convicted for discharge of trade waste. AFFCO defended the charge on the basis that its contractor disposed of contaminated wastewater into the incorrect manhole, in a manner inconsistent with directions given by AFFCO. The Court held AFFCO liable for the discharge because it had engaged the contractor and was in a position to give proper and full instruction in relation to the method used. It was in a position to properly supervise and exercise continued control of the activities of the contractor and to prevent the pollution from occurring, but had failed to do so.
Limited statutory defences
There is a limited statutory defence under s341 RMA which requires the defendant to prove on the balance of probabilities that:
- the event was beyond their control,
- the event was not reasonably foreseeable, and
- the defendant remediated the harm caused by the event.
The Courts have interpreted these elements of the defence to mean that a land owner, consent holder or developer will be liable for a discharge caused by third parties unless they can show they acted prudently and took all reasonable steps to prevent the discharge.
Establishing a defence
In practice this requires the defendant to show that they understand what is happening on site and can demonstrate:
- Active and regular site supervision
- Identification of any problems
- Timely intervention to address any problems before they escalate to a discharge, and
- Escalation of the issue if problems are not addressed
If a discharge occurs the defendant will also need to show that they took all reasonable steps to remediate any environmental effects quickly and fully.
Completion of these steps will need to be established through evidence at a Court hearing so it is important to take photographs and complete accurate written notes of site visits, site meetings, verbal instructions and directions, which should be copied to site managers, contractors and employees.
The strict liability provisions of the RMA coupled with the steady increase in Council prosecutions combine to create significant risks for landowners, consent holders and developers that are dependent upon third parties to manage property or develop a site. It is possible to establish a defence, but this is not easy and requires active supervision and intervention. However, if these steps are taken not only will you have a reasonable prospect of defending a prosecution, you will also significantly reduce the likelihood of an illegal discharge occurring in the first place.
Disclaimer: This is a brief summary for information purposes only and is not legal advice
Posted on Wednesday 12th February, 2014 at 03:56 pm