What should you do if you get an infringement notice?

You can be sure are going to have to part with some money if you receive something from the Council entitled "Infringement Notice issued under s343C of the Resource Management Act 1991". But fear not, things could be a lot worse.

If you receive one of these notices, it means the Council thinks there has been some non-compliance for which you could have been prosecuted under the Resource Management Act 1991, convicted and fined tens of thousands of dollars. This could range from ponding of dairy effluent to allowing stock to access rivers in breach of a rule in a Council plan. The notice is definitely the lesser of two evils, but you should not ride your luck because, unless you take the right action quickly, you could well still end up with a conviction and a much higher fine to boot.

The Environmental Infringement Notice is the Resource Management Act's version of a traffic fine, but with bigger fines – anything from $300 to $1,000, 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 that further 28 day period, the fine will be collected by the Court, just like an unpaid traffic fine. That will include not only the infringement fee, but a collection fee as well.

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 that 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 saying that 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. What is worse, if you do have statutory liability insurance your insurer could refuse your claim for the prosecution on the basis that ignoring the notice was reckless.

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 not only repairing the irrigator, but also installing a fail-safe device that shuts off the irrigator if it breaks down. You would then want to get written acceptance from the Council that the issue had been fixed.

So if you receive an infringement notice under the Resource Management Act, you can either:

  • 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
  • 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 Special Counsel at Duncan Cotterill, with particular expertise in resource management and related prosecutions.

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.