Enforcement Orders

An enforcement order is an order made by the Environment Court compelling a person to comply with the provisions of the RMA, a rule in a regional or district plan, or the terms and conditions of a resource consent. An interim enforcement order can be made where there is imminent risk of irreparable environmental damage.

Enforcement orders have wide scope and can: ¹⁰⁸⁴

• Require that a person stop doing something, or prevent them from doing something, which is contrary to the RMA
• Require that a person stop doing something, or prevent them from doing something, that is noxious, dangerous, offensive or objectionable to such an extent that it is likely to have an adverse effect on the environment
• Require a person to do something which is necessary to ensure compliance with the RMA
• Require a person to avoid, remedy or mitigate an adverse effect on the environment
• Require a person to pay money or reimburse any other person taking action on their behalf
• Change or cancel a resource consent but only if the information provided by the applicant was inaccurate and materially influenced the decision to grant consent.
• Grant a dispensation from the need to comply with RMA requirements, direct compliance with the procedures, or suspend the policy statement or plan where the proper procedure has not been carried out in preparing a policy statement or plan.

An enforcement order may be granted to stop the contravention of a resource consent even if no actual environmental harm is caused by the activity if the contravention would diminish public confidence in the regulatory regime and the even-handed administration of controls. ¹⁰⁸⁵

An enforcement order must not be made where a person is acting in accordance with a rule in a plan, a resource consent, or a designation and the adverse effects in respect of which the order is sought were expressly recognised by the person who approved the plan, granted the resource consent or approved the designation. ¹⁰⁸⁶  However, the adverse effects may be of such a degree or character that they are outside the scope of the effects contemplated by the plan, consent or designation in which case an enforcement order may be made. ¹⁰⁸⁷

Noxious, dangerous, offensive or objectionable:

In assessing whether an activity is noxious, dangerous, offensive or objectionable the Environment Court must act as representative of the community at large, weigh all competing considerations and ultimately make a value judgement on behalf of the community as a whole. The Environment Court must consider whether an “ordinary and reasonable person” would consider the action offensive and objectionable. ¹⁰⁸⁸  This requires a four step process:

• First, consider if the assertions of the applicant are honestly made,
• Second, determine if, in the opinion of the Court, the activity is or is likely to be noxious, dangerous, offensive or objectionable,
• Third, consider whether the activity is likely to have an adverse effects on the environment,
• Finally, consider whether in all the circumstances the Court’s discretion should be exercised and an enforcement order made.

The “environment” is a complex entity which includes people and the social, economic, aesthetic, and cultural conditions which affect people. Amenity values are also defined to include people’s appreciation of the attributes including the pleasantness and aesthetic coherence of their surroundings. The term ‘offensive and objectionable’ has to be measured by the effect it has on the people and the reaction that people have to it. In Zdrahal v Wellington City Council [1995] 1 NZLR 700 the High Court upheld an abatement notice issued in respect of swastikas painted on the exterior wall of a house.

Require a person to pay money or reimburse any other person

Four elements need to be established for an order to be made under this ground: ¹⁰⁸⁹

• The person against whom the order is sought has failed to comply with a rule in a plan or a resource consent
• This caused an adverse effect on the environment
• The amount to be paid represents costs and expenses which have been incurred in avoiding, remedying or mitigating the adverse effect on the environment
• The costs and expenses are actual and reasonable

The Environment Court may have regard to a range of relevant matters including the polluter pays principle, the nature of the environment and the effect on it, the deliberateness of the person responsible, the degree of co-operation with the Council, the efforts made to rectify any damage done and ensure any activity does not re-occur or continue, and the actions of the Council through its officers. ¹⁰⁹⁰

Last updated at 1:21PM on December 11, 2014