Too hot to handle! Strict liability and the RMA

Think before you act (and carry out due diligence) is the message delivered in the recent Judgment R v Bill heard before the District Court.[1]

Mr Bill is a farm owner near Kaikohe. His farm was located near Northland College where demolition work was being undertaken. Mr Bill was approached by the main contractor carrying out the works at the College. The contractor asked if he would allow untreated timber to be disposed of on his farm. Mr Bill entered into a verbal agreement with the contractor and received $30,000.00 for the use.

What Mr Bill was not aware of, however, was that other items were also being burnt on his property including plywood, medium density fibreboard, treated timber, painted wood, chipboard, plastic, metals, coated wire, asbestos and tyres.

Mr Bill, as owner of the property, was subsequently charged with two breaches of the Resource Management Act 1991 (RMA):

1. permitting a discharge of contaminants from open burning; and
2. permitting the discharge of contaminants onto land.

The RMA is a strict liability statute. This means that there was no burden on the regional authority to prove that Mr Bill intended to commit an offence – the mere fact that there was a breach of the RMA is enough to support a prosecution.

Mr Bill was found to have failed to carry out any due diligence or a site inspection when the two instances of burning were taking place. Judge Smith opined that had these actions been taken, Mr Bill would have seen that other waste product was being disposed of and could have taken proactive measures to discharge his duties.

Judge Smith said that by pleading guilty Mr Bill accepted he permitted the burning and the discharges, even if only in the sense of not undertaking appropriate due diligence.

Harkness Henry strongly recommends any farmer considering permitting a third party to carry out activities on their farm seek legal advice. In particular activities that involve a discharge of any kind or earthworks may give rise to a breach of the RMA. Activities could include.

• waste disposal (burning, rubbish and/or chemical dumping);
• earthworks (including but not limited to those for the benefit of the farm such as effluent ponds);
• extensive landscaping; and
• fireworks.

[1] District Court, Kaikohe, 2/9/2019, Smith Judge. CRI-2019-004-6969, CRI-2018-027-152, CRI-2018-027-147. His Honour Judge JA Smith is an Environment Court Judge.

This article is current as at the date of publication and is only intended to provide general comments about the law. Harkness Henry accepts no responsibility for reliance by any person or organisation on the content of the article. Please contact the author of the article if you require specific advice about how the law applies to you.