Simple steps to minimise the risk of prosecution for breach of the RMA.

Clients involved in land use and development face the risk of breach of the RMA, including for the actions of staff or contractors. An analysis of prosecution actions by local authorities shows that it is often the basic steps which are overlooked:

  • The majority of prosecutions involve cases where work has occurred without the necessary resource consent.
  • Sometimes it is (wrongly) assumed that resource consent is only required from the territorial authority (i.e. district or city councils), and as a result any need to obtain consent from the relevant regional council is overlooked.
  • Compliance with any conditions is mandatory for those carrying out works under resource consent, however not infrequently there is little knowledge of the detail in consent conditions.
  • A check should ensure contract terms fit with the consent conditions where work is contracted or tendered in advance of resource consent being granted.
  • Once resource consent is granted, communication of consent conditions to staff as well as to contractors is vital, yet often overlooked. The consent holder needs to ensure the staff and contractors are informed of the consent terms.

Designing a compliance program for clients?

The limited nature of “no-fault” RMA defences means that it may be necessary for defendants to a prosecution to show that a system for environmental compliance exists. The Australian and New Zealand Standards AS/NZS 4360: Risk Management, and Compliance Programs NZ/AS 3806: 2006 together set out a helpful framework for the design of risk management and compliance programs.

A useful backstop: statutory liability insurance. Best viewed as a backstop measure to limit the financial consequences of enforcement action, statutory liability insurance can be a useful protection in the event of errors or mistakes occurring. Liability insurance will generally meet the costs of any Court penalty that may be imposed and also the costs of legal representation. Of course, insurance will not avoid any negative business or reputational damage as a result of any conviction. Insurers offering statutory liability insurance include QBE, Lumley, and Vero