Company directors can be personally liable for offences committed by their company if it is proven that the offence took place with the directors authority/permission/consent and the director knew, or could reasonably be expected to have known, that the offence was being committed and failed to take all reasonable steps to prevent or stop it. ¹¹²²

Crown entities, government departments and government-related organisations such as the Parliamentary Service can only be prosecuted if: ¹¹²³

• The proceedings are commenced by a local authority or an enforcement officer; and
• The proceedings are commenced against the Crown organisation in its own name and the Crown is not named as a defendant

Crown organisations cannot be required to pay a fine, but they can be subject to an enforcement order requiring them to take action to remedy a breach of the Act. ¹¹²⁴

How are offences prosecuted?

Prosecutions are governed by the Criminal Procedure Act 2011. A prosecution is initiated by filing a ‘charging document’ with the District Court.  A 'charging document' sets out the details of the alleged offence, such as the rule in a plan that has been breached and the respect in which it is said to have been contravened. Local authorities normally prosecute offences under the RMA, but prosecutions can be initiated by any person.

Prosecutions of Grade 1 offences must be initiated within 12 months of the alleged offence becoming known, or of when it should have become known, to the local authority. ¹¹²⁵  On the question of when a contravention “should have become known” to the relevant authority what is required is more than just suspicion that offending might be occurring, it requires some factual basis to alert an informant to the likelihood of the commission of the offence. This was not necessarily when an allegation was received but was more likely to be when the officer had sufficient information to justify an investigation. ¹¹²⁶

Prosecutions of Grade 2 and 3 offences must be initiated within 6 months of the alleged offence occurring.

How are prosecutions heard?

Prosecutions under the RMA are dealt with in the District Court by a District Court Judge who is also an Environment Judge, unless otherwise directed by the Chief District Court Judge. ¹¹²⁷

Grade 1 offences are punishable by imprisonment by a term of 2 years and so the Criminal Procedure Act 2011 provides for election of trial by jury. ¹¹²⁸

The prosecution needs to provide the actus reus (the wrongful act or omission that comprises the physical components of a crime). Most RMA offences are strict liability offences and therefore the prosecution does not need to prove that the defendant intended to commit the offence. ¹¹²⁹  The defendant has an evidential burden to raise any exception (e.g. that a discharge was ‘expressly allowed by a rule in a regional plan and in any relevant proposed regional plan, a resource consent, or regulations’) after which the informant has a legal burden of disproving that the exception applies.

The provisions of Part 2 of the RMA are not relevant to the decision to prosecute. ¹¹³⁰

Are any defences available?

There is no defence available on the basis of: the merits of a regional or district rule, ¹¹³¹  the validity of a resource consent condition, ¹¹³²  the fact that the effects of the offence were de minimus, ¹¹³³  or past failures of a consent authority to enforce the conditions of a resource consent. ¹¹³⁴

A breach of section 9, 11, 12, 13, 14 or15 of the Act is a ‘strict liability’ offence and there is no need to show that the defendant intended to commit the offence. ¹¹³⁵ However, a defendant has the opportunity to prove on the balance of probabilities ¹¹³⁶  two defences. ¹¹³⁷  The first is a “due diligence” defence which requires that:

• The action was necessary for the purpose of saving or protecting life or health or preventing serious damage to property or avoiding an actual or likely adverse effect on the environment, and
• The conduct of the defendant was reasonable in the circumstances, and
• The effects of the action were adequately remedied or mitigated by the defendant

The second defence available is an “act of god” defence which requires that:

• The action was due to an event beyond the control of the defendant e.g. natural disaster, mechanical failure, sabotage, and
• The action could not reasonably have been foreseen by the defendant, and
• The effects of the action were adequately remedied or mitigated by the defendant.

These defences are only available if the defendant informs the prosecution of his or her intention to rely upon such a defence within seven days of being served with a summons. ¹¹³⁸

The word necessary is a fairly strong word falling between expedient or desirable on the one hand and essential on the other. ¹¹³⁹ The test is objective, it does not depend on the defendant’s beliefs, and there needs to be immediacy and urgency, it will not be reasonable and necessary to rely on the defence if sufficient time is available to obtain consent. ¹¹⁴⁰

A defence of ‘officially induced error’ is not established in New Zealand. ¹¹⁴¹

How are sentences determined?

The purposes of the penalty regime include the protection of the public from the harm of environmental damage, the protection of the environment from damage, and ensuring that the costs of pollution are borne by whoever is responsible for the pollution. ¹¹⁴²

The Courts have states that “If fines are too low, they will be regarded a minor licence fee for offending and convey the idea that the law may be broken with relative impunity”. ¹¹⁴³  From 1 October 2009, the potential fine for Grade I offences increased from $200,000 to up to $300,000 in the case of a natural person and up to $600,000 in any other case. This may be taken as a legislative direction to the Courts to ensure that higher penalties are imposed that will have a significant deterrent quality. ¹¹⁴⁴

Imprisonment and community work sentences are available to the Court. Community work may be imposed where a financial penalty is not appropriate due to a defendant’s financial circumstances. Imprisonment may be appropriate where there are repeated significant failures to comply with the RMA. ¹¹⁴⁵

The Sentencing Act 2002 is now the starting point for any sentencing. It sets out the purposes of sentencing which include holding the offender responsible for harm caused to the community by the offending and to denounce the conduct in which the offender was involved. ¹¹⁴⁶  It also sets out the principles of sentencing ¹¹⁴⁷  under which the Court:

• must take into account the gravity of the offending in the particular case, including the degree of culpability of the offender; and
• must take into account the seriousness of the type of offence in comparison with other types of offences, as indicated by the maximum penalties prescribed for the offences; and
• must impose the maximum penalty prescribed for the offence if the offending is within the most serious of cases for which that penalty is prescribed, unless circumstances relating to the offender make that inappropriate; and
• must impose a penalty near to the maximum prescribed for the offence if the offending is near to the most serious of cases for which that penalty is prescribed, unless circumstances relating to the offender make that inappropriate; and
• must take into account the general desirability of consistency with appropriate sentencing levels and other means of dealing with offenders in respect of similar offenders committing similar offences in similar circumstances; and
• must take into account any information provided to the court concerning the effect of the offending on the victim; and
• must impose the least restrictive outcome that is appropriate in the circumstances; and
• must take into account any particular circumstances of the offender that mean that a sentence or other means of dealing with the offender that would otherwise be appropriate would, in the particular instance, be disproportionately severe; and
• must take into account the offender's personal, family, whanau, community, and cultural background in imposing a sentence or other means of dealing with the offender with a partly or wholly rehabilitative purpose; and
• must take into account any outcomes of restorative justice processes that have occurred, or that the court is satisfied are likely to occur, in relation to the particular case.

Factors that may amount to mitigating conduct by a defendant include: ¹¹⁴⁸

• Minimal environmental damage;
• Immediate clean-up action taken by a defendant;
• Clean-up carried out by a defendant company at its expense;
• Steps taken to avoid recurrence;
• The offence occurred at a time when steps were being put in place to create a new management regime;
• The acts of the offence would not have reasonably been within the contemplation of the defendant company;
• The harm was at the lower end of the scale;
• Adverse effects were short term;
• An offence was not deliberate;
• The lack of any profit element;
• Compliance (even if belatedly) with an abatement notice;
• Through no fault of the defendant, work did not go according to the approved plans;
• The supervention of unpredictable weather conditions;
• A defendant was let down by professional advisers; and
• A plea of guilty and acknowledgement of culpability and liability at an early stage (if a guilty plea is made at the first opportunity this will generally result in a one-third reduction ¹¹⁴⁹ ); and
• A further factor in mitigation may be a defendant’s willingness to undertake a restorative justice process.

In addition to these factors, relevant matters in the RMA context are the nature of the environment affected, the deliberateness of the event and the attitude of the defendant. ¹¹⁵⁰

The Courts should consider the personal and financial circumstances of defendants when sentencing. Clear and unequivocal material showing inability to pay the proposed fine is required to justify a reduction in fine. ¹¹⁵¹  However, a reduction may not be appropriate where the offending is of such a nature that the public interest demands a greater penalty notwithstanding the defendants limited means. ¹¹⁵²

The option to discharge a defendant without conviction is available to the Court and may be appropriate in cases of minimal culpability and substantial mitigation. The Court must not discharge an offender without conviction unless the Court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence. ¹¹⁵³  A defendant who is discharged without conviction may still be ordered to pay the informant’s costs of investigation and prosecution. ¹¹⁵⁴

Where a prosecution is unsuccessful, the defendant may apply for costs under the Costs in Criminal Cases Act 1967 and its regulations. The Court may order that the defendant be paid such a sum as it thinks just and reasonable towards the costs of his or her defence. There is no presumption for or against the granting of costs in any case. The Court is likely to consider whether the prosecution acted in good faith in bringing and continuing the proceedings, whether the prosecution has sufficient evidence to support the conviction at the comment of the proceedings, whether the prosecution properly investigated any matter that suggested the defendant might not be guilty, whether the investigation was conducted in a reasonable and proper manner, whether the evidence was dismissed on a technicality, whether the defendant established that he or she was not guilty, and the behaviour of the defendant. ¹¹⁵⁵

What should you do if you suspect an offence?

If you suspect that an offence against the RMA is occurring, record as many details as you can including the date, time, nature of the activity, people involved and environmental consequences. If possible, make a photographic or video record of the activity and environmental effects. Contact the relevant local authority as soon as possible and provide details of the suspected offence. Councils often have after hours numbers and pollution hotlines which you can use. Follow up with the council to find out what action if any has been taken and, if no action has been taken, the reasons why.

Infringement notices

As an alternative to criminal proceedings a Council may serve an infringement notice where an infringement offence has been committed. The person culpable will required to pay an infringement fee of up to $1000. ¹¹⁵⁶  Infringement offences and fees are set out in the Resource Management (Infringement Offences) Regulations 1999.