RMA prosecution risks

By Amanda Douglas
Wynn Williams & Co

Did you hear the one about the developer, the contractor, the subcontractor and the engineer? 

The contractor was responsible for the earthworks, the sub contractor carried out the works, the developer assured the contractor that no resource consents were required and the engineer oversaw the project. Who do you think was prosecuted when unconsolidated sediment made its way into streams and, ultimately, the sea, following heavy rain?

Common offences under the RMA involving contractors often involve sediment discharge to land or water, contamination of land or water with fuels or other contaminants, unauthorised works in waterways or riverbeds, and not following conditions of resource consent.

A person who commits an offence under the RMA is liable on conviction to imprisonment for a term of up to two years or a fine up to $200,000, plus $10,000 for every day, or part day, that a continuing offence continues. Under the Resource Management (Simplifying and Streamlining) Amendment Bill introduced in February 2009, the Government proposes to increase the maximum penalties to $300,000 for individuals and $600,000 for body corporates.

In many circumstances, a contractor or subcontractor will not inquire about the need for, or conditions of, a resource consent before commencing work. The fact that a contractor has no knowledge of the need for a resource consent, or relies on someone else’s advice or assurance, is not sufficient to avoid conviction. You will be guilty of an offence even if you did not intend to do it. The fact that the incident occurred is usually enough to establish the offence and there are many examples of unsuspecting contractors who ‘unintentionally’ breach the RMA and are convicted of offences. 

In one case¹, an experienced contractor was fined for carrying out work under the drip lines of a number of indigenous trees without a resource consent. The contractor was unaware of the need to get a resource consent but, as it was not necessary to show the defendant intended to commit an offence, he was convicted and fined. 

Under the RMA, you can be found guilty of an offence not only if you contravene the Act  yourself, but also if an employee, a sub contractor or an agent does. It is not uncommon for a prosecution to be brought against all or some of those involved in a contract including the developer, contractor, subcontractor, engineer and consultant. 

In the case mentioned in the first paragraph², the developer, the contractor and the engineer were all prosecuted for the offences under the RMA. Despite acting on assurances from others and engaging a subcontractor to carry out the physical works, the contractor was convicted and fined. The developer was also convicted and fined, and the engineer was discharged without conviction, but did not escaping having to pay for investigation costs and mitigation. 

The scenario relating to the contractor is common, and it is clear that each contractor needs to ensure that they make their own inquiries in order to protect themselves against prosecution.  No matter how many others are in the chain, and regardless of how many assurances you are given by others, you must take responsibility for your own position.

Defences

There are very limited defences provided for in the RMA and they are difficult to prove.

For example, in one case³, the diesel spill for which the defendant was prosecuted was caused by the sabotage of equipment by a third party.  The defendant sought to rely on the defence set out in the RMA that an action was due to an event beyond the defendant’s control including mechanical failure or sabotage.  However, the Court did not accept that the spill was unforeseeable, and the defendant was found guilty of an offence against the RMA.

It is important to obtain legal advice from the outset, if you are faced with a prosecution, as there are very short timeframes within which the defences, if available, can be raised.

What can you do?

Once an offence has been committed and a prosecution is brought, the options for defending it are limited.  It is much better to make your own inquiries prior to the commencement of the works as to matters such as:

• Whether a resource consent is required (including whether the activity is allowed by, or breaches, any rules of regional or district plans);
• Whether a resource consent or a certificate of compliance has been obtained;
• What the conditions of any resource consent or certificate of compliance are;
• Whether the resource consent or certificate of compliance covers all, or just part, of the work that is to be carried out.

Reliance on the advice of others, such as the developer or principal, is not enough to prevent a prosecution being brought against you. You need to make your own inquiries.

If you do not take a proactive approach to resource management matters before work commences, and something goes wrong, you risk being faced with a prosecution. 

Once the ‘accident’ or event has occurred, it is too late. There is little opportunity to take back what has happened or to avoid a conviction. Take the time to consult a resource management lawyer about these issues to ensure that you do not become the next unsuspecting offender.  

1. Auckland City Council v Mitchell Earthmoving Limited, CRI 2008 00410369
2. Canterbury Regional Council v Takamatua West Ltd & Ors, CRI 2007-009-4858-60-66
3. Canterbury Regional Council v Steelbro NZ Ltd, CRN05009503624.