We specialise in defending council prosecutions. If you have been issued with an abatement notice, or are being prosecuted under the Resource Management Act or Building Act, please get in touch with our team here.
Council prosecutions are nothing like a speeding ticket.
The fines imposed by the courts can be in the hundreds of thousands of dollars and have the potential to cripple a business.
Prosecutions under the Resource Management Act 1991 or Building Act 2004
Most council prosecutions are brought under either the Resource Management Act or the Building Act.
Council enforcement action begins with an investigation. That is the information-gathering stage where council officers try to confirm the nature and extent of suspected wrongdoing.
Environmental offending, for example, often comes to the attention of council officers during routine monitoring of properties. Public complaints are another common way concerns are referred to councils.
The Council’s right to enter your property
Once a council has learned of suspected non-compliance its officers have legal powers to enter private property to collect information and evidence.
One important exception, however, is that council officers are not authorised to enter private homes.If council officers want to do that they must apply to a court for an order or search warrant.
If, following an investigation, council officers believe there is good evidence indicating non-compliance, then they will look at commencing enforcement action.
Abatement Notices
Often a council’s first enforcement step is to issue an abatement notice under the Resource Management Act or a Notice to Fix under the Building Act. Such notices legally require you to take steps to remedy the non-compliance within a short period of time. Failure to do so is also an offence and is likely to lead to a prosecution.
If the council considers that the evidence it has collected is sufficient to support a prosecution and that such a step is in the public interest (i.e. worth spending ratepayers’ money on), then formal charges will be filed against you in court if you have not complied with the abatement notice.
There are several charges available to councils under the Resource Management Act. These usually involve the allegation that you have used land in breach of the District Rules – by doing something without a consent when one was required or discharging contaminants into water or onto land.
The most common Building Act charge is doing building work without a building consent.
For most offences under those Acts councils do not need to prove that you intended to commit the offence. Usually, it is enough for a council to show that you were responsible for the wrongdoing in terms of having caused or allowed the incident to happen.
You may be responsible for work done by others
If you employ or contract others to do work on your property and they fail to comply with the law, then you could also be liable for their offending.
How to defend a prosecution
There are certainly avenues for defending council prosecutions.
Charges under the Resource Management Act and the Building Act must be filed in court within 12 months of the council learning of the offending, or within 12 months of the date when the council should have become aware of the offending.
That could mean, for example, if council officers had been at a property for a building consent inspection and should have observed wrongdoing at that time then the 12-month clock would start ticking even if the officers did not actually notice the issue during the inspection.
Charges might also be defended on the basis the action or event triggering the offending was beyond your control and could not have been foreseen - for example it was caused by a natural disaster or sabotage.
What happens in court
Often council prosecutions are resolved by the person or company charged pleading guilty at an early stage in the proceeding.
However, some prosecutions do go all the way to trial.
The usual consequence of pleading guilty or being found guilty of a Resource Management Act or Building Act offence is a fine. The maximum penalty for Building Act offences such as building without a building consent is $200,0000 though the penalties actually imposed are generally in the lower tens of thousands.
The most commonly charged Resource Management Act offences carry maximum penalties of a $300,000 fine and two years jail for an individual or a $600,000 fine for a company. Fines imposed for Resource Management Act offending are often significantly higher than Building Act fines.For example, fines in excess of $100,000 are not uncommon for offending concerning the discharge of dairy effluent into waterways.
Even if you accept responsibility for the offending, good legal representation at sentencing is essential to ensure the fine you end up paying is reasonable.
Individuals or companies pleading or found guilty of offending will also usually receive a criminal conviction on their personal record. This can impact on travel or future employment prospects.
It is sometimes possible to apply for a discharge without conviction if it can be shown the consequences of conviction are out of all proportion to the seriousness of the offending. If such an application is successful it usually means you will still pay a fine but will avoid a conviction. Again, to achieve this outcome you should engage a lawyer for the best prospects of success.
If you or your company are facing a council investigation or a full-blown prosecution, we recommend you urgently get in touch with us.
Nathan Batts, of our office, has considerable experience in dealing with abatement notices and council prosecutions under the Resource Management Act and Building Act. Nathan would be happy to review the matter with you and give you an opinion as to the best course of action.
