If you haven’t been subject to one you are likely to know someone who has and, despite good intentions, it might be only a matter of time before your farming operation is feeling the heat of a council prosecution.
Unfortunately, they are something of an occupational hazard for farmers – particularly when it comes to the discharge of effluent in dairy farming.
Council prosecutions are nothing like a speeding ticket. The fines imposed by the courts can be in the hundreds of thousands of dollars and have the potential to cripple a business. Farmers should, therefore, have at least a basic understanding of the process and consequence of a council prosecution and know where to turn for help if they find themselves in the hot seat.
Council enforcement action begins with an investigation. That is the information-gathering stage where council officers try to confirm the nature and extent of suspected wrongdoing. Offending on farms often comes to the attention of council officers during routine monitoring of properties. Public complaints are another common way concerns are referred to councils.
Once a council has learned of suspected non-compliance its officers have legal powers to enter private property to collect information and evidence. One important exception, however, is that council officers are not authorised to enter private homes. If council officers want to do that they must apply to a court for an order or search warrant.
If, following an investigation, council officers are confident the evidence they have collected is sufficient to support a prosecution and that such a step is in the public interest, ie, worth ratepayers’ money, then formal charges will be filed in court against the alleged offender.
There are a number of charges available to councils under the Resource Management Act (RMA) and Building Act (BA). Common RMA charges include using land in breach of the district rules, usually doing something without a consent when one was required, and discharging contaminants into or onto water or land. The most common BA charge is doing building work without or not in accordance with a building consent.
For most offences under those acts councils do not need to prove a person or company intended to commit the offence. Usually, it is enough for a council to show that a person or company was responsible for the wrongdoing in terms of having caused or allowed the incident to happen. That does mean the ability to defend a charge is limited. Furthermore, if you or your company employs or contracts others to do work in relation to your property and they fail to comply with the law then you could also be liable for their offending.
There are certainly avenues for defending council prosecutions. Significantly, charges under the RMA and BA must be filed in court within six months of the council learning of the offending or within six months of the date when the council should have become aware of the offending. That could mean, for example, if council officers had been at a property for a building consent inspection and should have observed wrongdoing at the same time then the six month clock would start ticking even if the officers did not actually notice the issue at the time. Charges might also be defended on the basis the action or event triggering the offending was beyond your control and could not have been foreseen, eg, a natural disaster or sabotage.
More often than not council prosecutions are resolved by the person or company charged pleading guilty at an early stage in the proceeding. However, some prosecutions do go all the way to trial.
The usual consequence of pleading guilty or being found guilty of an RMA or BA offence is a fine. The maximum penalty for BA offences, such as building contrary to or without, a building consent is $200,0000 though the penalties actually imposed are generally at or below $20,000.
The most commonly charged RMA offences carry maximum penalties of a $300,000 fine and two years jail for an individual or a $600,000 fine for a company. Fines imposed for RMA offending are often significantly more than for BA offending. For example, fines in excess of $100,000 are not uncommon for offending concerning the discharge of dairy effluent.
Good legal representation at sentencing can be essential for ensuring the fine you are required to pay is reasonable. Individuals or companies pleading or found guilty of BA and RMA offending will also usually receive a conviction on their record. However, it is sometimes possible to apply for a discharge without conviction if it can be shown the consequences of conviction are out of all proportion to the seriousness of the offending. If such an application is successful it usually means you will still pay a fine but will avoid a conviction.
If you or your company are facing a council investigation or a full blown prosecution we recommend seeking urgent legal advice.