RMA Convictions Challenged
In mid-October the District Court took the unusual step of adjourning prosecution hearings (sentencing and defended matters) under the Resource Management Act 1991 ("RMA") until the end of the year.
The Court had simply advised that a question had been raised as to whether a conviction can properly be entered under the Summary Proceedings Act 1957 ("SPA") for offences of this type.
The Manawatu Standard is now reporting (www.stuff.co.nz/national/2997637/Law-flaw-may-halt-RMA-case) that the issue arose in a proceeding before the Tauranga District Court and relates to the effect of section 78A of the SPA on offences under the RMA.
Offences under the RMA are identified in section 338. Maximum penalties, available on conviction, are prescribed in section 339. However, in 1996, provision was made for infringement offences, which have the benefit of being cheaper and quicker to enforce than summary offences.
In 1999 the Resource Management (Infringement Offences) Regulations 1999 ("Regulations") defined the type of offences that fall within that description and the quantum of fees that could be collected. Under the Regulations, Infringement Offences include contraventions of section 9 (use of land), section 15 (discharges), and Abatement Notices. Some offences under the RMA, such as the contravention of an enforcement order, are not Infringement Offences.
Since 1999, Councils have been making an election between enforcing the RMA and their Plans by issuing an infringement notice or by bringing a prosecution under the SPA. Prosecutions brought this way have resulted in convictions and, in many cases, substantial fines. However, the issue now raised before the Tauranga District Court is whether section 78A of the SPA precludes this final step. Section 78A states:
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"78A |
Conviction not to be recorded for infringement offences |
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(1) |
Notwithstanding any other provision of this or any other Act, where in proceedings for an infringement offence (whether being an offence for which an infringement notice has been issued or not) the defendant is found guilty of, or pleads guilty to, the offence and the Court would, but for this subsection, convict the defendant, the Court shall not convict the defendant but may order the defendant to pay such fine and costs and may make such other orders as the Court would be authorised to order or make on convicting the defendant of the offence…" (emphasis added) |
As "Infringement offence" is defined by the SPA as any offence under any Act in respect of which a person may be issued with an infringement notice, on its face section 78A suggests that convictions cannot be entered for any offence identified under the Regulations as an Infringement Offence, though fines may be imposed up to the maximum prescribed by section 339.
If this is correct, it would be of significant effect, given that between May 2005 and June 2008 alone, 242 convictions were entered under the RMA. In addition, however, convictions have been entered under the Dog Control Act 1996 ("DC'96") and the Building Act 2004 ("BA'04"), for offences that are defined by their regulations as Infringement Offences (s40 of the BA'04 and s53(1) of the DC'96, for example). Presumably, the same argument would apply in respect of those convictions.
The District Court's decision will therefore be highly anticipated. In light of the number of proceedings around the country that are now effectively 'on-hold', we expect that it should soon be forthcoming.
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Last updated: 3 November 2009
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