best practice in abatement and infringement notices

Best Practice in Abatement and Infringement Notices

Why is the form and content important?

• Transparency

• Fairness to recipient

• Defending appeals

• Appeals are expensive

Burdon of Proof

• Infringement Notice:

– Beyond reasonable doubt – “that degree of doubt which

would prevent a reasonable and just man from coming to a conclusion”

• Abatement Notice:

– Balance of probabilities – “once both sides have presented

their evidence, the judge will find for the party who on the whole has a

stronger case”

Types of Abatement Notice

• S332 of RMA

• Cease

• Prohibit the commencement

• To Do

1.1 In my opinion, this undertook/discharged/contravened is not expressly allowed by your/a

resource consent undertook/discharged/contravened, a rule in a regional plan or a national

environmental standard, and contravenes section/s insert section contravened of the

Resource Management Act 1991.

1.2 You undertook/discharged/contravened section insert section contravened of the Resource

Management Act 1991 which states that insert section contravened.

1.3 You undertook/discharged/contravened section insert section contravened of the Resource

Management Act 1991 which states that insert section contravened.

1.4 This undertook/discharged/contravened is not expressly allowed by a national

environmental standard, a rule in a regional plan or a resource consent.

1.5 You have received this notice because <specify link between recepient and the activity>.

1.6 *If the notice is issued under s322(1)(b) then the description of actual or likely effects is

required>. [*Delete if issued under s322(1)(a) only]

2. Consequences of not complying with this notice:

If you do not comply with this notice, you may be prosecuted under section 338 of the

Resource Management Act 1991 (unless you appeal and the notice is stayed as explained

below), or an infringement notice may be served on you under section 343C of the


3. Right of appeal:

You have the right to appeal to the Environment Court against the whole or any part of this

notice. If you wish to appeal, you must lodge a notice of appeal in form 49 (Resource

Management (Forms, Fees, and Procedure) Regulations 2003) with the Registrar,

Environment Court, PO Box 5027, Wellington, within 15 working days of being served

with this notice.

*An appeal does not automatically stay the notice and so you must continue to comply

with it unless you also apply for a stay from an Environment Judge under section 325(3A)

of the Resource Management Act 1991 (see form 50, Resource Management (Forms, Fees,

and Procedure) Regulations 2003). To obtain a stay, you must lodge both an appeal and a

stay with the Environment Court. [*Delete if notice is issued under section 322(1)(a)(ii)]

**Lodging an appeal will automatically stay this notice as long as you are complying with

the Resource Management Act 1991, any regulations made under that Act, a rule in a plan,

or a resource consent. [**Only include if this notice is issued under section 322(1)(a)(ii)]

4. Application to change or cancel this notice:

You also have the right to apply in writing to Wellington Regional Council to change or

cancel this notice in accordance with section 325A of the Resource Management Act 1991.

5. Wellington Regional Council authorised the enforcement officer who issued this

notice. Its address is:

Greater Wellington

PO Box 11646

142 Wakefield Street

Notice number: Notice Number

Abatement Notice

In accordance with sections 322, 323 and 324, Resource Management Act 1991

To: [Individual/Company Name]

[Address]

Attn: <Insert the name of the person in the company who the notice is addressed to. Not

needed if sending to an individual.>

Wellington Regional Council gives notice that you <must cease/are prohibited from

commencing/must take the following action:

[Give precise and clear details of what is required, so that the recipient has certainty and

we can easily check compliance with the notice]

The location to which this abatement notice applies is:

[Describe the location as it is commonly known and in a way that will enable it to be easily

identified, e.g., street address AND the legal description]

You must comply with this abatement notice within the following period:

By <time> on <date>

[Must be a reasonable period to achieve requirements in 1. and take into account the

circumstances giving rise to the abatement notice. If notice is issued under s322(1)(a)(ii)

and the recipient is complying with the Act, a plan rule or resource consent then period

cannot be less than 7 days after the date on which the notice is served]

This notice is issued under:

Section [State paragraph of section 322(1) under which the notice is issued] of the


The reasons for this notice are:

On <specify date>, I inspected your <site, area of work> to investigate <specify complaint or

problem>and assess compliance with the Resource Management Act 1991. I observed the

following:

<specify activities that were observed>

<specify effects that were observed>

<specify effects that were observed>

Wellington

Phone: 04 384 5708

Facsimile: 04 385 6960

The enforcement officer is acting under the following authorisation:

Appointment as an enforcement officer by Wellington Regional Council under section

38(1)(a) of the Resource Management Act 1991 as certified by Warrant No. <no.>.

...................................................

Signature of enforcement officer

...................................................

Date notice issued

Note: Irrespective of any appeal and irrespective of any time for compliance specified in

this notice, you may be liable to prosecution or other enforcement action if the activity or

inactivity in question contravenes the Resource Management Act 1991, a resource consent,

or a rule in a plan. This notice is issued without prejudice to additional or alternative

enforcement action being taken by Wellington Regional Council.

Officer

observat

ions

Photos &

video

Samples Maps Certificate

of title

Interview

– Ken

Collings

ESci

opinion

Rule 1,

RFP

Rule 22,

RFP

Name

27 December

2012

Address

Legal description

s15(1)(a)

discharge

contaminant

to water

not allowed by

rule in plan

not allowed by

resource

consent

s13(1)(b)

disturb/excavate

bed

river

not allowed by

rule in plan

not allowed by

resource

consent

Sampling results

Sample location Total Sediment Conc. g/m3

Upstream of dam (5) 1

Base of dam (4) 110,000

261 WV Road north of gate (3) 37,400

261 WV Road above culvert (2) 29,700

Culvert opp 258 WV Road (1) 2,460

Prohibit Abatement Notice Wellington Regional Council gives notice that you are prohibited from

commencing the following actions:

Unauthorised excavation and disturbance of the bed of an unnamed tributary of the

Mangaroa River

Unauthorised deposition of sediment on the bed of an unnamed tributary of the

Mangaroa River

Unauthorised discharges of contaminants, namely sediment-laden water, to water

The location to which this abatement notice applies is:

Unnamed tributaries of the Mangaroa River, at or about map reference NZTM

Easting: xxxxx / Northing: xxxxxx. Address & Legal description Lot 12 DP xxx

You must comply with this abatement notice within the following

period:

Immediately

This notice is issued under:

Section 322(1)(a)(i) of the Resource Management Act 1991.

5. The reasons for this notice are:

5.1 On 27 December 2012, Chris Fern (Wellington Regional Council enforcement

officer) inspected your property XXX Road, Upper Hutt to investigate discolouration of a

tributary of the Mangaroa River and to assess compliance with the Resource Management Act

1991. Chris observed the following:

– A concrete dam structure in the bed of a stream approximately 200m up a farm track from

XXX Road

– An orange Hitachi digger operating from a soil and rock platform below the dam on the

true left side of the stream

– Exposed earth (soils and rock) forming square banks with vertical sides on the true left

side of the stream for an approximate length of 8-10 metres from the base of the dam in a

downstream direction

– A man digging manually with a shovel in the bed of the stream at the base of the dam next

to the digger

– An open sluice gate at the base of the dam

– Brown water flowing in the stream from the base of the dam, downstream

– A “high tide line” on the stream banks downstream of the dam, where grass was flattened

and sediment, debris and a large eel were deposited

– Brown water flowing in the stream downstream near Whitemans Valley Road

– Sediment covering the stream bed from the base of the dam, downstream to the end of

the farm track at XXX Road

– A clear-flowing stream entering the dam on the upstream side

– Clear water entering the dam on the upstream side from a concrete pipe

– A large amount of mud slurry behind the dam

– A man behind the dam spraying water at the sluice gate and stilling well.

5.2 In my opinion, the works undertaken in the stream bed and the discharge

of sediment-laden water to water is not expressly allowed by a resource consent, a

rule in a regional plan or a national environmental standard, and contravenes

sections 13(1)(b), 13(1)(d) and 15(1)(a) of the Resource Management Act 1991.

5.3 The unauthorised excavation and disturbance of the bed of an unnamed

tributary of the Mangaroa River contravenes section 13(1)(b) of the Resource

Management Act 1991 which states that no person may, in relation to the bed of

any lake or river, excavate, drill, tunnel or otherwise disturb the bed unless

expressly allowed by a national environmental standard, a rule in a regional plan as

well as a rule in a proposed regional plan for the same region (if there is one), or a

resource consent.

5.4 The unauthorised deposition of sediment on the bed of an unnamed

tributary of the Mangaroa River contravenes section 13(1)(d) of the Resource

Management Act 1991 which states that no person may, in relation to the bed of

any lake or river, deposit any substance in, on, or under the bed unless expressly

allowed by a national environmental standard, a rule in a regional plan as well as a

rule in a proposed regional plan for the same region (if there is one), or a resource

consent.

5.5 The unauthorised discharge of contaminants, namely sediment-

laden water, to water contravenes section 15(1)(a) of the Resource

Management Act 1991 which states that no person may discharge any

contaminant or water into water unless the discharge is expressly allowed

by a national environmental standard or other regulations, a rule in a

regional plan as well as a rule in a proposed regional plan for the same

region (if there is one), or a resource consent.

5.6 ‘Contaminant’ is defined by the Resource Management Act 1991

as any substance that when discharged to water, land or air, changes or is

likely to change the physical, chemical or biological condition of that water,

land or air.

5.7 You have received this notice because you own the land where

the dam is located and undertook the works on the dam and in the stream

bed and were responsible for the release of sediment-laden water from

the dam.

Cease Abatement Notice

1. Wellington Regional Council gives notice that you must cease the

following:

1.1 Unauthorised discharges of contaminants, namely farm and household

rubbish and including animal carcasses, to land and to land in circumstances

where the contaminants may enter water.

1.2 Unauthorised depositions of farm and household rubbish, including

animal carcasses, on the bed of a stream.

2. The location to which this abatement notice applies is:

Xxxxx Road, Featherston Lot 1 DP xxxxx

Approximate map reference NZTM Easting: xxx/ Northing: xxx

3. You must comply with this abatement notice within the following

period:

Immediately.

4. This notice is issued under:

Section 322(1)(a)(i) of the Resource Management Act 1991.

‘To Do’ Abatement Notice

1. Wellington Regional Council gives notice that you must take the

following action:

Remove all unauthorised contaminants*, namely household and farm

rubbish, including animal carcasses, from the farm dump site.

*Contaminant is defined by the Resource Management Act 1991 as any substance that

when discharged to water, land or air, changes or is likely to change the physical, chemical

or biological condition of that water, land or air.


xxxxx Cape Palliser Road, Featherston; Lot X DP xxxx

Approximate map reference NZTM Easting: xxx/ Northing: xxx

3. You must comply with this abatement notice within the following

period:

By 1200 hours on 26 March 2013.


Section 322(1)(b)(ii) of the Resource Management Act 1991.

‘To Do’ ANs must clearly list the actual or potential

environmental effects

The actual or likely effects of the contaminants discharged at this

location include:

• Leachate discharges to soil, groundwater, surface water and the

coastal marine area as material breaks down

• Health risk to public from leachate due to proximity to beach

• Gaseous emissions during decomposition of material

• Odour effects as material decomposes

• Biohazard risk from dead animals

• Visual impact

• Disturbance and damage to natural landscapes and the habitats of

plants and animals.

Right of Appeal 7. Right of appeal:

You have the right to appeal to the Environment Court against the whole or any part

of this notice. If you wish to appeal, you must lodge a notice of appeal in form 49

(Resource Management (Forms, Fees, and Procedure) Regulations 2003) with the

Registrar, Environment Court, PO Box 5027, Wellington, within 15 working days of

being served with this notice.

*An appeal does not automatically stay the notice and so you must continue to

comply with it unless you also apply for a stay from an Environment Judge under

section 325(3A) of the Resource Management Act 1991 (see form 50, Resource

Management (Forms, Fees, and Procedure) Regulations 2003). To obtain a stay,

you must lodge both an appeal and a stay with the Environment Court. [*Delete if

notice is issued under section 322(1)(a)(ii)]

**Lodging an appeal will automatically stay this notice as long as you are complying

with the Resource Management Act 1991, any regulations made under that Act, a

rule in a plan, or a resource consent. [**Only include if this notice is issued under

section 322(1)(a)(ii)]

1. Wellington Regional Council gives notice that you must cease the following:

Unauthorised discharges of contaminants to air


The unit you occupy at xxx Riverbank Road, Otaki; Lot xxx

3. You must comply with this abatement notice within the following period:

By 5pm 5 November 2010


Section 322(1)(a)(ii) of the Resource Management Act 1991

5.9 The Effects that have been reported by people as a result of exposure to offensive

or objectionable odours include nausea, headaches, frustration, annoyance and

embarrassment in front of visitors and customers.

7. Right of appeal:

You have the right to appeal to the Environment Court against the whole or any part of this notice.

If you wish to appeal, you must lodge a notice of appeal in form 49 (Resource Management

(Forms, Fees, and Procedure) Regulations 2003) with the Registrar, Environment Court, PO Box

5027, Wellington, within 15 working days of being served with this notice.

Lodging an appeal will automatically stay this notice as long as you are complying with the

Resource Management Act 1991, any regulations made under that Act, a rule in a plan, or a

resource consent.

Key points for ANs • Different types – Cease, prohibit and ‘To Do’

• Cease/Prohibit – issue as soon as possible

• ‘To Do’ – can it be complied with; will it exacerbate the

environmental effects; is RC required; is there an end point

• ‘To do’ must include environmental effects

• No time frame to issue an AN

• You can extend the timeframe

• Are expectations clear

• 15 days to appeal – Court can waive this

• Form and content specified S324 of RMA & Resource

Management (Forms, Fees, and Procedure) Regulations 2003

Form 48

• Service S352

Outcomes of AN

• Appeals

• Comply

• Cancel

• Infringement

• Prosecution

Infringement Notices

Infringement Notices

Details of alleged infringement offence

Section of Resource Management Act 1991 contravened: 15(2A) being an offence against

section 338(1)(a) of the Resource Management Act 1991.

Nature of infringement:

On or about 19 October 2012, you permitted the discharge of contaminants, namely farm and

household rubbish, including animal carcasses to land in a manner that contravened Rule 9 of

the Wellington Regional Plan for Discharges to Land.

The unauthorised discharge of contaminants, namely household and farm waste, to land

contravenes section 15(2A) of the Resource Management Act 1991 which states that no person

may discharge a contaminant into the air, or into or onto land, from a place or any other source,

whether moveable or not, in a manner that contravenes a regional rule unless the discharge is

expressly allowed by a national environmental standard or other regulations, a resource

consent, or section 20A [certain existing lawful activities allowed].

This discharge of contaminants to land is not expressly allowed by a national environmental

standard, a resource consent or section 20A.

This discharge to land contravenes Rules 9 of the Regional Plan for Discharges to Land

because it does not comply with conditions (b), (c) and (d) of the Rule.

You have received this infringement notice because you own the land where the unauthorised

discharge occurred and are responsible for the dump site.


Section of Resource Management Act 1991 contravened: 15(1)(b) being an offence against

section 338 (1)(a) of the Resource Management Act 1991


On 9 May 2013, at Grenville Street, Waiwhetu, Lower Hutt, you discharged a contaminant,

namely sediment laden water, into the kerbside channel on Grenville Street which resulted in

that contaminant entering the Hutt City stormwater network and subsequently the Awamutu

Stream.

This discharge is not expressly allowed by a national environmental standard or other

regulations, a rule in the regional plan, or a resource consent

This unauthorised discharge of contaminants, namely sediment laden water, to the stormwater

network contravenes Section 15(1)(b) of the Resource Management Act 1991 which states no

person may discharge any contaminant onto 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 unless the discharge is expressly allowed by a national

environmental standard or other regulations, a rule in a regional plan as well as a rule in a

proposed regional plan for the same region (if there is one), or a resource consent.

You have received this infringement notice because you are the company responsible for the

discharge.


Section of Resource Management Act 1991 contravened: section 323(1)(a) being an offence

against section 338(1)(c) of the Resource Management Act 1991.


You did not comply with abatement notice A659 issued on 18 September 2012 which required

you to cease the unauthorised discharge of contaminants, namely offensive and objectionable

odour, to air beyond the boundary of your site at 62-66 Montgomery Crescent, Upper Hutt.

On 5 March 2013, you discharged a contaminant, namely offensive and objectionable odour, to

air beyond the boundary of your premises at 62-66 Montgomery Crescent, Upper Hutt.

You have received this notice because you are the company that owns and operates from the

site at 62-66 Montgomery Crescent, Upper Hutt and are responsible for the discharge of

contaminants to air from those premises.

Failure to comply with an abatement notice is an offence under section 338(1)(c) of the

Resource Management Act 1991. Section 323(1)(a) of the Resource Management Act 1991

states that subject to the rights of appeal in section 325, a person on whom an abatement notice

is served shall comply with the notice within the period specified in the notice.

Key points for INs • Nature of Infringement: must ‘fairly inform’ a subject of what

they are being accused of

• ‘contravention’ or ‘permitting a contravention’

• Issued to a legal entity

• ‘expressly allowed’ or ‘in contravention of’

• Issued within 4 months of the date of offence

• Reminder required after 28 days if unpaid

• Fees set by Resource Management (Infringement Offence)

Regulations 1999

• Schedule 2: Form of Infringement Notice and Summary of

Rights; RMA S343C

• Referral to Court: Civica - Christchurch

Appeals of INs

Hearing requested: • Cancel IN or File notice of Hearing in District Court

with letter from defendant, copy of IN and filing fee – If liability admitted – NFA Court will decide without oral

submissions

– If Liability denied – Court serves notice of Hearing -

prepare for defended hearing in Court

If Denial hearing under S78B requested (irregularity in

process) - Cancel IN or File notice of Hearing in District Court

with letter from defendant, copy of IN and filing fee

Essential Points • Evidence to prove breaches

• Legal entity

• Method of service S343C(2) & S352

• One offence per IN

• Will the recipient know why they got it?

• Separate notices for ‘cease’ and ‘to do’

Evidence considerations • Evidence sufficiency

• Public opinion

• Cooperation

• Adverse environmental effects (actual or potential)

• Value/sensitivity of area

• Toxicity of discharge

• Deliberateness

• Foreseeability

• Remediation/mitigation

• Profit/benefit

• History

• Deterrence required

Prosecutions Prosecution reports contain the following:

Chapter 1 Investigation Report

Section 1 Summary

Section 2 Background

Section 3 Incidents

Section 4 Discussion

Section 5 Breaches of Resource Management Act 1991

Section 6 Possible subjects

Section 7 Why prosecute?

Section 8 Conclusion

Section 9 Concerns regarding investigation

Chapter 2 Evidence Matrix

Chapter 3 Documents

Document 1 xxxx

Document 2 xxxx

Chapter 4 Additional documents from file for disclosure

Key Messages • ANs – expectations, timeframes and

reasons for issue need to be clear

• INs – reason for issue, date of offence and why need to be clear

• Thorough investigations, primary evidence and good communications – less likely to get challenges