Charges and prosecutions under the Resource Management Act 1991 (RMA)

Authorities under the RMA, including your local Council and the Environmental Protection Agency, have discretion to issue legal directives if there is non-compliance.  These compliance tools include infringement notices, formal written directions like abatement notices or enforcement orders by the Environment Court. Abatement notices are issued by the enforcing authority and require the offender to do something to achieve compliance. These are normally issued before prosecution is considered to give offenders an opportunity to address any breaches. Enforcement orders are a similar enforcement tool, but unlike abatement notices, they are made by the Environment Court on application by any person.

However, where non-compliance continues or the breach is considered sufficiently serious, the authority may decide to take further action and commence prosecution. Although these charges arise under the RMA, prosecution means they are treated in the same manner as a criminal offence.

In cases involving less serious breaches, the authority may elect to issue an infringement notice instead. This imposes an infringement fee and, if paid, will be considered resolved without prosecution.

Being Prosecuted Under the RMA

Offences under the RMA are treated as criminal proceedings and are heard in the District Court. You are typically summoned to appear in court, rather than arrested and you must attend court as directed. Failure to appear may result in a warrant for your arrest.[1]

Your Rights

If you are charged with an RMA offence, you have the same rights as you would in any criminal proceeding, including the right to:[2]

• be informed of the charge against you;
• have legal representation;
• have a fair and public hearing before an independent and impartial court; and
• be presumed innocent until proven guilty.

What is considered an offence under the RMA?

Offences are set out in section 338 of the RMA. Broadly, an offence is committed where a person or entity does or allows an activity that breaches the RMA’s environmental controls or fails to comply with regulatory directions made under it, which relate to any effects on land, air, or water, including the coastal marine area.

It also includes failing to comply with enforcement mechanisms such as abatement notices and enforcement orders, or other formal directions issued by local authorities. Obstructing or misleading enforcement officers, failing to provide required information, ignoring legal processes, or breaching access or protection requirements are also prosecutable offences.

Specific examples of prosecutable activities can include (but are not limited to) discharging contaminants (such as dairy effluent) or waste in circumstances that it may or has entered water, air or land, incorrectly disposing of tyres, carrying out work on land such as earthworks or clearing native vegetation without obtaining a resource consent, diverting water from a waterway, and the emission of excessive noise.

Penalties under the RMA

Penalties under the RMA vary depending on the type of offence committed. The maximum penalties include:

• for an individual, imprisonment for up to 18 months or a fine of up to $1,000,000;
• for a non‑natural person (for example, a company), a fine of up to $10,000,000; and

• if the offence is a continuing one, a fine of up to $10,000 per day (or part of a day) that the offence continues.

A fine is generally the most common penalty and while imprisonment is possible, it is rarely imposed. However, the Court may choose to impose other penalties such as community work; an enforcement order directing the defendant to remedy the breaches, ensure compliance with the RMA or with the authority’s inspection and monitoring; direct the authority to serve a notice to review the resource consent that was breached; and/or if an offence resulted in commercial gain, impose an additional penalty.

Liability

If the offence relates to a breach of restrictions under sections 9 (land use), 11 (subdivision), 12 (coastal marine area), 13 (beds of lakes and rivers), 14 (water), or 15 (discharges of contaminants), the offence is one of strict liability.[3] This means the prosecution only needs to prove that you committed the prohibited act, regardless of whether there was any actual intention to offend.

Additionally, working for, or under, a corporation does not provide protection. Any person working as an agent of the corporation, such as an employee or contractor will be liable as if they personally committed the offence and any director may also be vicariously liable, if they are found to have an involvement or were overseeing in the offending.[4]

The prosecuting authority must commence prosecution within 12 months of the date on which the alleged offence first became known, or, ought to reasonably have been known to them. After this period, prosecution cannot be pursued.[5]

There are limited defences available to RMA offences. If you intend to rely on a defence, it is up to you to raise and prove it. Typically any defence must be raised within 7 days of the service of the summons.[6]

Overview of the Court Process

RMA prosecutions are heard in the District Court by a Judge alone, who will be a Judge of the Environment Court. There is no right to a jury trial for RMA offences.

The prosecution process typically begins with a service of a summons by the authority. This document outlines the alleged offence and requires the defendant to appear in court for a first appearance (often called a “first call”), where a plea must be entered, either guilty or not guilty.

The defendant will also be provided with a “summary of facts”, which sets out the authority’s account of the alleged offending, including how and why the breach is said to have occurred. There is also an opportunity to engage with the authority to negotiate the contents of the summary of facts to come to an agreed statement of facts to narrow the issues the Judge must decide on.

If a not guilty plea is entered, the matter will proceed to a trial hearing. If the case proceeds to trial, both parties will present evidence on what is disputed, which will be examined and tested before the Judge, who will then consider the evidence and determine the defendant’s guilt.

If a guilty plea is entered, the matter will proceed to a sentencing hearing. If the parties were unable to reach an agreement on the facts, the matter will proceed to a disputed facts hearing first, to resolve any differences before sentencing.  During sentencing, the Judge will consider the agreed facts and the authority may present aggravating factors to increase the penalty and the defendant can present mitigating factors to seek a reduction in penalty.

Sentencing Considerations

When setting a sentence, the Judge will consider a range of factors, both aggravating and mitigating, alongside the principles in the Sentencing Act 2002, these include:

• the seriousness of the offence;
• the actual or potential environmental harm;
• level of deliberateness;
• cooperation with the authority;
• any prior offending history (including previous enforcement action);
• financial position;
• character of the defendant; and
• whether steps were taken to remediate the harm caused by the offending.

Looking Ahead

While further RMA reform is on the horizon, the current RMA’s compliance, enforcement and monitoring framework will carry over into the new planning system, with additional enforcements tools being introduced. This indicates a clear policy direction towards better and stronger enforcement, higher penalties, and greater deterrence and accountability.

Many cases do not arise from deliberate breaches, instead resulting from avoidable issues like system failures, such as poor maintenance, gaps in staff oversight, or inadequate infrastructure, which are often predictable and preventable.Therefore addressing them proactively is essential to maintaining compliance and avoiding further enforcement action.

If you have insurance, your policy may cover legal or remediation costs, although fines themselves will not be covered.[7] There may also be limitations if you are found to be intentionally reckless. You should therefore review your policy carefully and notify your insurer as soon as you become aware of any potential prosecution.

Do not delay in seeking legal advice if you face a potential or actual prosecution, particularly if you wish to raise a defence. Early action can materially affect the outcome, particularly in relation to compliance issues. If you are facing prosecution, get in touch with a member of our Environmental team, who can assist with promptly assessing your position and guide you through the process.

[1] Criminal Procedure Act 2011, s 34A. (CPA)

[2] New Zealand Bill of Rights Act 1991, s 24.

[3] RMA, s 341.

[4] RMA, s 340.

[5] RMA, s 338(4).

[6] RMA, ss 339A, 340(2), 341(2), 341A, and 341B.

[7] RMA, s 342A.

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.