Such a notice signals that the council suspects non-compliance, rendering you liable for prosecution under the RMA, conviction and a fine of tens of thousands of dollars.
Your offence could be, for example, ponding of dairy effluent or allowing stock to access rivers in breach of a rule in a council plan. The notice is the lesser of two evils, but you should not ride your luck because, unless you take the right action quickly, you could still end up with a conviction and a much higher fine.
An environmental infringement notice is the RMA version of a traffic offence notice, but with bigger fines – anything from $300 to $1000, depending on the magnitude of non-compliance. Like traffic fines, these notices are ‘instant’: unless you challenge them in court, you have to pay them even though you have not been convicted or sentenced by a Judge.
You have 28 days from the original notice and if you do not pay that, a further 28 days under a reminder notice. If you do not pay within the further 28 day period, the fine will be collected by the court, just like an unpaid traffic fine. That will include the infringement fee and a collection fee.
On the upside, like traffic fines, if you pay them on time, this is not counted as a conviction or a formal admission of guilt, but it does mean you cannot be prosecuted for that particular incident. That is always better than a conviction and a fine where the maximum is $600,000 for a company and $300 for individuals, trusts and partnerships.
Although you can fight an infringement notice in court, this is generally not worth it because the cost of the court case is invariably much more than the fine itself. Further, you can pay the fine under protest – by accompanying the payment with a letter you did nothing wrong. This is best drafted by a lawyer familiar with environment infringement notices, because if it is not done right it can make matters worse. Also, if the court finds that the council was right to issue the infringement notice, the fine could be higher than the original infringement notice.
Paying the infringement fee is not enough, though, because if you have a similar non-compliance again you are likely to be prosecuted. The council would likely argue that the infringement fine was not high enough and a conviction and stiff fine were necessary to ensure you changed your ways. It would be likely that the court would agree. Worse, if you have statutory liability insurance your insurer could refuse your claim for the prosecution on the basis that you were reckless in ignoring the notice.
The key is to fix the source of the non-compliance and then get the council to confirm in writing that you have done so. For example, for a ponding incident caused by an irrigator breakdown, this may involve repairing the irrigator and installing a fail-safe device that shuts off the irrigator if it fails. You would then want to get written acceptance from the council that the problem had been fixed.
So if you receive an infringement notice under the RMA, you can do one of two things: (1) pay it, fix the cause, obtain the council’s written confirmation that you have and then breathe a justified sigh of relief that you did not end up with a conviction and a fine in the tens of thousands of dollars; or (2) ignore it or just pay it but do nothing else, and then wait for the next non-compliance, resulting prosecution and extra high fine (probably without insurance cover).
• Hans van der Wal is a resource management lawyer at Duncan Cotterill. email This email address is being protected from spambots. You need JavaScript enabled to view it.
