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 you.
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.
