Council monitoring officer visits have become a normal part of
farm life and many officers have done an admirable job in building
very positive relationships with farmers.
While this is a good thing, it should be remembered that the
officer's purpose is not to be your friend, but to ensure you
are complying with the Resource Management Act. One day you could
be sitting at your kitchen table having, what you think is an
amiable chat about the state of your consent, while a few months
later that same person could be giving evidence in Court about your
amiable chat and helping to convict you.
However well you get on, remember that anything you say or write
to a monitoring officer - or anyone else at the Council –
could be used against you in a prosecution.
This does not mean that you should treat your monitoring officer
as the enemy or never share a cup of tea or a friendly word, but it
does mean you need to watch out for any alarm bells.
Be aware of conversations or questions that could lead you to
stating or accepting responsibility for non-compliance; commenting
on how bad it is; saying how long it has been a problem and
acknowledging you have not done enough to remedy it.
If notes are being taken, remember that they – or even a
file note of the conversation taken after the officer leaves the
farm - can be used as evidence to help secure a conviction against
Because the enforcement officer cannot arrest you, he or she
does not have to give you a formal caution before you start
providing answers to questions that could incriminate you.
So if you feel a conversation is heading in this direction,
there is nothing wrong in saying you are not comfortable with where
it is going and that you do not want to say anything more without
legal advice. On the contrary, it is the right thing to do.
Really loud alarm bells should start ringing if the officer
reads out a formal caution before starting the conversation. At
that stage you should definitely not agree to carry on without
first talking to a lawyer. Equally loud bells should go off if you
receive a letter from the Council either inviting you to an
interview or asking you to provide a written explanation for an
alleged non-compliance incident.
You should not agree to attend an interview without first
speaking to a lawyer, nor should you provide any written
explanation that has not been checked by a lawyer. The issues that
need to be checked are often a complicated mix of resource
management and criminal law and can be overlooked by you or anyone
else without expertise in both these areas.
A statement you think is harmless could be enough to convict
you. Also, statutory liability insurance policies generally cover
the costs of the investigation, so this is the time to notify your
insurer, which should then appoint or help you to appoint a
suitably qualified lawyer.
You may well think that this is over the top and will just ruin
a good working relationship, but the monitoring officer will be
aware of your rights and should be quite happy for you to exercise
them without taking any offence. The relationship will be a lot
more awkward if he or she ends up giving evidence of your kitchen
table conversation that helps convict you.
You can emphasise that you want to help, but just want to make
sure you have the right advice when you do. You should ensure that
any conversations that set off alarm bells are noted by the
monitoring officer as being "without prejudice", meaning
that it cannot be used against you.
Admissions to an enforcement officer are basically impossible to
unwind, so caution is your best ally in keeping on side with the
Council and out of Court.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
An inevitable consequence of development and industrial progress is generation of waste. Therefore, efficient waste management is a matter of international concern.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).